“This case illustrates how the Section 230 precedent is fading, as courts keep chipping away at its edges to reach counterintuitive conclusions that should be clearly covered by Section 230,” writes law professor and First Amendment expert Eric Goldman on his Technology and Marketing Law Blog.

The case in question—Nazario v. Bytedance Ltd.—involves a tragedy turned into a cudgel against tech companies and free speech.

It was brought by Norma Nazario, a woman whose son died while “subway surfing”—that is, climbing on top of a moving subway train. She argues that her son, 15-year-old Zackery, and his girlfriend only did such a reckless thing because the boy “had
become addicted to” TikTok and Instagram and these apps had encouraged him to hop atop a subway car by showing him subway surfing videos.

Nazario is suing TikTok, its parent company (Bytedance), Instagram parent-company Meta, the Metropolitan Transit Authority, and the New York City Transit Authority, in a New York state court, with claims ranging from product liability and negligence to intentional infliction of emotional distress, unjust enrichment, and wrongful death. The social media defendants filed a motion to dismiss the case, which the court recently granted in part and rejected in part.

Looking for Someone To Blame

Cases like these are now, sadly, common, and always somewhat difficult to discuss. I feel deep sympathy for Nazario and any parent who loses a child. And it’s understandable that such parents might be eager for someone to blame.

But teenagers doing dangerous, reckless things is not some new and internet-created phenomenon. And the fact that a particular dangerous or reckless thing might be showcased on social media platforms doesn’t mean social media platforms caused or should be held liable for their death. We don’t blame bookstores, or movie theaters, or streaming platforms if someone dies doing something they read about in a book or witnessed in a movie or TV show.

Alas, the involvement of tech companies and social media often overrides people’s normal sense of how things should work.

We can generally recognize that if someone harms themselves doing a dangerous stunt they saw in a movie, the movie theater or streaming service where they saw that movie should not be punished, even if it promoted the movie to the person harmed. But throw around words like “algorithms” and some people—even judges—will act as if this changes everything.

Enter Section 230

Typically, online platforms—including TikTok and Instagram—are protected from much liability for content created by their users.

Section 230 of the Communications Decency Act says that interactive computer services and their users are legally responsible for their own speech, in the form of content that they create in whole or part, but not responsible for the speech of third parties. Sounds simple, right?

But trying to define—and whittle away at—this simple distinction has become a hallmark of lawsuits and legislation aimed at technology companies. Lawyers, activists, and the people they represent are constantly arguing that even when tech companies do not create offending or dangerous content, they are exempt from Section 230 protection for some reason involving product design or functionality or engaging in traditional editorial functions (such as content moderation).

The social media companies in this case argue that they are indeed protected by Section 230, since the subway surfing content viewed by Zackery Nazario was not created by TikTok or Meta but by third-party users of these platforms.

Nazario’s suit, in turn, argues that Section 230 doesn’t matter or doesn’t apply here because this is not about TikTok’s and Meta’s roles as platforms for third-party speech. It’s about their role as product manufacturers who have designed an unsafe product and used “algorithms [which] directed [Zackery

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Article from Reason.com

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