Products Liability Law Daily Wrap Up, DESIGN AND MANUFACTURING DEFECTS—ELECTRONIC PRODUCTS—9th Cir.: Dismissal of claims against YOLO app partially reversed in minors’ bullying suit, (Aug 26, 2024)

By Pankhuri Bhatnagar, B.A. LL.B.

The product liability theories asserted by the minors’ parents were found to be barred by § 230 of the Communications Decency Act.

In a suit brought against the developer of an anonymous messaging platform by the parents/estate of minors who suffered severe bullying and harassment on the application, the U.S. Court of Appeals for the Ninth Circuit partly reversed a lower court’s grant of the developer’s motion to dismiss. The appeals court observed that the product liability claims were foreclosed because they attempted to hold the developer responsible as the speaker or publisher of the harassing speech of third-party users. However, the parents’ misrepresentation claims survived as they hinged on the developer’s false promise that it would unmask and ban abusive users—not on its failure to moderate content (Estate of Bride v. YOLO Technologies, Inc., No. 23-55134 (9th Cir. Aug. 22, 2024)).

Background. YOLO Technologies Inc. developed an extension (app) for use on the Snapchat application which allowed users to ask public questions and send and receive anonymous responses. In order to address potential cyberbullying concerns, the developer promised users that it would unmask the identities of, and ban, anyone who engaged in bullying or harassing behavior. The instant suit was filed by the legal guardians of three minors and the estate of a fourth (collectively, parents or claimants) against YOLO for the extreme harassment and bullying the minors suffered through the app, resulting in acute emotional distress and death by suicide of one. The four minors were allegedly inundated with death threats, obscene sexual propositions, false accusations, and other humiliating comments on YOLO’s platform.

The decedent had attempted to utilize YOLO’s promised unmasking feature but received no response and ultimately hung himself at his home. After his death, his parents continued his efforts, using the “Contact Us” form on its Customer Support page, but received no response. Messages to YOLO’s law enforcement email bounced back due to the email address’ invalidity. The decedent’s mother filed the instant suit, and Snap immediately suspended YOLO’s access to its application. The complaint contained twelve causes of action which broadly fell into two categories: product liability and misrepresentation. A district court granted the developer’s motion to dismiss, holding that § 230 of the Communications Decency Act (CDA) immunized YOLO from these claims. The court relied on Dyroff v. Ultimate Software Group, Inc., 934 F.3d 1093 (9th Cir. 2019) to find that the entire complaint sought to hold YOLO responsible for the content of messages posted on its app by users and not for any separate duty owed to the claimants. The claimants appealed.

Legal standard. § 230 of CDA protects apps and websites which receive content posted by third-party users from liability for the content posted on their services, even if they take it upon themselves to establish a moderation system. This immunity persists unless the service is itself “‘responsible, in whole or in part, for the creation or development of’ the offending content,” 47 U.S.C. § 230(f)(3). The immunity applies to “(1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider,” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1099 (9th Cir. 2009). Here, the parties agreed that YOLO was an interactive computer service under § 230, satisfying the first prong. The second prong considers whether the claims seek to plead around the CDA’s strictures and treat the defendant as a “publisher or speaker” of third-party content. The act of “publication involves reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content.”

Misrepresentation. In Barnes, the plaintiff’s estranged boyfriend posted sexually explicit images of her on Yahoo’s website. Yahoo’s Director of Communications promised her that she would personally facilitate the removal of the offending content. When nothing happened, the girl sued. This court found that her negligent undertaking claim faulted Yahoo for failure to remove content, which amounted to publishing or editorial content, and was thus foreclosed by § 230(c)(1). However, the promissory estoppel claim survived because it did not seek to hold Yahoo liable as a publisher but as a promisor who had breached a contract, even though the promise was to moderate content. Applying that rationale here, the court observed that YOLO’s representation to users that it would unmask and ban abusive users was sufficiently analogous to Yahoo’s promise to remove an offensive profile. The minors relied on this representation when they elected to use YOLO’s app, but the latter failed to take action even when directly requested. In fact, considering YOLO’s staff size of ten people compared to its user body of ten million, there was no way YOLO could monitor its app’s traffic, making it doubtful that it ever intended to act on its own representation. The lower court oversimplified the § 230 immunity and essentially dismissed the claims because malicious third-party postings were involved, when the proper analysis was to examine the duty underlying each claim. Since the parents sought to hold YOLO accountable for a promise or representation, and not for failure to moderate, their misrepresentation claims survived.

Product liability. Next, the parents asserted a design defect claim, alleging that YOLO developed and marketed a product that was unreasonably dangerous due to its anonymity and that YOLO should have known this because prior anonymous applications had a deleterious effect on minor users. The negligence claim stated that the developer failed to mitigate this “foreseeable risk of harm,” while the failure to warn theory centered on YOLO’s failure to disclose these risks to users when they downloaded the app. The court noted that all these theories attempted to hold the developer responsible for users’ speech or YOLO’s decision to publish it, since the alleged harm was the harassing and bullying posts of others and/or YOLO’s failure to mitigate the effects of such posts. The claimants relied on Lemmon v. Snap, Inc., 995 F.3d 1085 (9th Cir. 2021), where negligent design claims against Snap Inc. survived § 230 immunity. This court distinguished that the claims there pertained to a speeding filter created by Snapchat that incentivized users to speed, resulting in accidents. In contrast, the activity encouraged here was the sharing of messages between users, and anonymity alone could not make the app’s design unreasonably dangerous, especially given the ease of creating fake profiles on the internet.

The parents referred to Doe v. Internet Brands, Inc., 824 F.3d 846, 851–52 (9th Cir. 2016), where a networking site for models was held liable because the site’s owners were aware of men using the site to lure women and rape them, and the victim’s tort claims had no relation to the site’s decision to publish any content. This court again distinguished that the defendant in Internet Brands failed to warn of a known conspiracy operating independent of the site’s publishing function. Here, there was no conspiracy to harm. There was merely a general possibility of harm resulting from the use of an anonymous app, which exists anywhere on the internet. The developer could not be held accountable for the “unfortunate realities of human nature,” the court remarked. As noted in Dyroff, “[n]o website could function if a duty of care was created when a website facilitates communication, in a content-neutral fashion, of its users’ content.” Since the parents’ product liability theories attempted to hold YOLO liable as a publisher of third-party content, the claims were barred under § 230 of the CDA.

The case is No. 23-55134.

Judge: Siler, E.

Attorneys: Juyoun Han (Eisenberg & Baum, LLP) for the Estate of Carson Bride. Emma Moralyan (Dentons US, LLP) for YOLO Technologies, Inc.

Companies: YOLO Technologies, Inc.

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