Antitrust Law Daily Wrap Up, ANTITRUST—Mass. Sup. Ct.: Instagram not shielded by Communications Decency Act immunity provision, (Apr 14, 2026)

By Kenneth H. Ryesky, M.B.A., J.D.

Instagram's protracted screen time in order to maximize advertising revenue was alleged to trigger neurochemical addiction processes in youthful users.

The highest state court in Massachusetts has sustained a trial court's dismissal of Instagram's Communications Decency Act immunity defense of allegations brought by Massachusetts Attorney General's office under Massachusetts state law. The Attorney General had alleged that the Instagram social media Internet platform is engineered to drag out the viewing time of Instagram users so as to increase the number of times the individual user is exposed to the advertisements of paying advertisers. Instagram's claim of immunity under the provisions of the federal law was dismissed by the trial court. Instagram appealed the dismissal. The appellate court found that it had jurisdiction to entertain the interlocutory appeal, and after analyzing the immunity defense in terms of the federal statute's plain language and Congressional intent, found the trial court's dismissal to have been proper (Commonwealth of Massachusetts v. Meta Platforms, Inc., No. SJC-13747 (Mass. Sup. Ct. Apr. 10, 2026)).

Background. Instagram is an Internet-based social media platform that facilitates the sharing of photographs and short-form videos amongst subscribers; it is operated by Instagram, LLC, a subsidiary of Meta Platforms, Inc. (collectively, Meta). The Instagram business model entails free participation by subscribers, while revenue is earned from paid advertising. The advertisers pay Meta according to the number of "advertising impressions" that are placed on the screens of the advertisers' targeted audiences among Instagram subscribers.

The Commonwealth of Massachusetts, noting that Instagram's subscriber base includes more than 300,000 Massachusetts residents in the 13 to 17 age bracket as daily active users, filed a lawsuit against Meta in a Massachusetts state trial court, alleging that the Instagram platform has been engineered to exploit the habitual attraction of the youthful Instagram users by prolonging the users' Instagram screen time in order to sell more advertising impressions to Instagram's advertisers. The lawsuit alleged violations of Massachusetts statute, asserting (1) three counts of deceptive and/or unfair business practices; and (2) one count of public nuisance. Meta moved to dismiss the case, claiming immunity under the federal Communications Decency Act of 1996 (CDA) [47 U.S.C. § 230].

The Massachusetts trial court denied Meta's dismissal motion. Meta appealed the dismissal to the Massachusetts Supreme Judicial Court (SJC), the highest state court in Massachusetts.

Present execution doctrine. The SJC found that Meta's interlocutory appeal to it was proper under the present execution doctrine. Although appeals from a trial court decision made prior to a definitive final ruling are generally not allowed, there is a narrowly-limited exception under the present execution doctrine when an interlocutory order that is collateral to the main dispute of the case will leave a party without remedy for impairment of its rights if the lower court's final judgment is to be appealed. Here, Meta's affirmative defense of immunity under the CDA fits those circumstances. The SJC accordingly found Meta's interlocutory appeal proper, but only to the extent of its CDA affirmative defense.

Communications Decency Act immunity. Having found its jurisdiction to be proper, the appellate court upheld the trial court's dismissal of Meta's CDA affirmative defense. The CDA immunity provision protects interactive computer service providers from being treated as publishers or speakers of any information they display when such information is provided by another information content provider (47 U.S.C. § 230(c)(1)).

The three statutory claims for violations the Massachusetts consumer protection law at issue were unfair business practices, deceptive business practices, and deceptive and unfair business practices. In Count 1, the Commonwealth alleges that in pursuit of maximizing advertising profits, Meta has designed Instagram to induce compulsive use among young users to the detriment of their health and well-being. In Count II, it alleges that Meta knowingly deceived the public about the risks of Instagram, depriving the public of the ability to make an informed choice about individual use of the platform. In Count III it is alleged that Meta unfairly and deceptively claimed that it excludes users under the age of thirteen who are acutely harmed by Instagram's addictive features.

As for Count I, the unfair business practices claim, the challenged design features (e.g., infinite scroll, autoplay, IVR, and ephemeral content) concern how, whether, and for how long information is published. The published information itself is not the source of the harm alleged. Instead, the claim alleges that the features themselves induce compulsive use independent of the content provided by third-party users. Thus, the unfair business practices claim in Count I does not treat Meta as a publisher of information, and § 230(c)(1) immunity does not apply.

The deceptive business practices claim, Count II, is not barred by Section 230(c)(1) because the claim is based on Meta's own speech, the court ruled. Instead, the claim is based on Meta’s allegedly false statements that Instagram is safe and not addictive, and that Meta prioritizes young users' well-being, despite internal reports and communications suggesting awareness of the harmful effects of Instagram.

Finally, the deceptive and unfair business practices claims in count III challenging Meta’s age-gating measures as ineffective is not barred by Section 230(c)(1) for the same reasons that the provision does not bar the deception claim in count II –- the claim focuses on Meta's own affirmative misstatements about the inaccessibility of its platform to underage users. The Commonwealth asserts that the defective age verification features give rise to heightened harm to underage users. It does not allege harm stemming from the content of any information published.

Because the court concluded that § 230(c)(1) does not bar counts I to III, it also held that it does not bar the Commonwealth's public nuisance claim, which is predicated on the same allegedly unfair and deceptive practices in counts I to III.

The Case is No. SJC-13747.

Judge: Wendlandt, D.

Attorneys: David C. Kravitz, Massachusetts Attorney General's Office, for Commonwealth of Massachusetts. Mark W. Mosier (Covington & Burling LLP) for Meta Platforms, Inc.

Companies: Meta Platforms, Inc.

Cases: Antitrust StateUnfairTradePractices MassachusettsNews