Is Snapchat a product or service? A decision for another day, judge says

A Los Angeles County judge denied Snap’s motion to dismiss a lawsuit accusing it of causing thousands of teenagers to die from fentanyl drug overdoses due to the ease with which drug dealers can approach minors on Snapchat and later delete the evidence.

In a 33-page order, Judge Lawrence P. Riff on Tuesday mostly overruled but sustained, in part, Snap’s demurrer. He allowed the plaintiffs’ efforts to hold the social media company responsible for the sale of the deadly drug fentanyl to move forward.

Snap’s attorney, Jessica L. Grant of Shook, Hardy & Bacon LLP referred a request for comment to Snap. A representative wrote back, saying, “While we are committed to advancing our efforts to stop drug dealers from engaging in illegal activity on Snapchat, we believe the plaintiffs’ allegations are both legally and factually flawed and will continue to defend that position in court.”

Plaintiffs’ attorneys with Social Media Victims Law Center said Riff’s decision affects more than 65 cases they have filed against Snap.

“As a matter of procedure it is not precedential,” the law center’s founding attorney, Matthew P. Bergman said in a telephone interview Wednesday.

“I think it is being looked at around the country by places of authority in what is a very new and evolving area of the law in which there is paucity of binding legal authority on either side,” Bergman said. “We were the first firm in the country to file these social media cases, to use product liability as an alternative to Section 230.”

The plaintiffs asserted 16 causes of action, including strict product liability, negligence and wrongful death. Riff sustained demurrers to four counts: tortious interference with parental rights; public nuisance; aiding and abetting; and loss of consortium and society. He overruled all other demurrers. Amy Neville et al. v. Snap Inc., 22STCV33500 (L.A. Super. Ct., filed Oct. 13, 2022).

Snap had demurred to all of the plaintiffs’ causes of action under Section 230 of the Communications Decency Act, saying that the harms, as alleged, flowed from third party content exchanged by third parties on Snap’s social media platform. Section 230 says, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Riff agreed with Snap that it is an “interactive computer service” and cannot be liable, as a publisher, for third-party drug-sellers’ content.

“But the allegations of the [second amended complaint] do not purport to impose liability upon Snap for publishing or failing to moderate the drug sellers’ content, but instead on account of its alleged independent tortious conduct — independent, that is, of the drug sellers’ posted content. The allegations assert conduct beyond ‘incidental editorial functions’ for which a publisher may still enjoy Section 230 immunity,” he wrote.

The parties disagreed whether Snapchat is a tangible product or a service. The plaintiffs said Snapchat is a product under California law. Snap demurred, saying the platform is a service.

“The court sees the issue as follows: is Snapchat, with its features, functionalities, and its place in our society and economy in 2023, something (pick your descriptor: product, service, interactive platform, app, website, software, tool) for which strict products liability does or should apply?” Riff wrote.

“The court’s answer is: not enough information yet to tell, and the question cannot be resolved on demurrer,” he continued.