Can I Sue a Social Media Platform?
You can only sue a social media platform in limited circumstances. Because the law does not view them as publishers or speakers of content posted by users, they cannot be held liable for third-party content. They also can't be held liable for their good faith decision to remove content they find objectionable. Taken together, this means that social media companies are immune from most civil lawsuits.
Most, but not all. For example, you can sue a social media service provider for violations of your intellectual property rights or for content they created on their own. If they promise to remove content and then don't, you may be able to sue the company under a breach of contract theory. If the social media company is aware that its platform is being used for illegal purposes and fails to warn potential victims, it can be sued for failure to warn.
Taking on Big Tech is a challenge, to say the least. Social media companies are some of the largest in the world, and they have hosts of lawyers on staff who do nothing other than defend lawsuits brought by platform users. If you are thinking of tackling a social media company, you may want to consult with an experienced intellectual property attorney, a contract law attorney, or a personal injury attorney (depending on the nature of your claim). They can give you legal advice and help you decide if legal action is your best bet.
History of Social Media
The history of social media doesn't start with MySpace. You have to go back nearly two centuries. On May 24, 1844, inventor Samuel F.B. Morse tapped out a message from Washington to Baltimore on a telegraph: “What Hath God Wrought?" Morse had figured out how to use electricity to send a series of codes representing letters of the alphabet. Voilá — Morse Code.
The modern history of social media starts with the development of the internet. In 1969, the government, in conjunction with several universities, set up the first online network, the Advanced Research Projects Agency Network — the ARPANET. In 1987, the National Science Foundation launched a more robust nationwide network, the NSFNET, which directly led to the development of today's internet.
The first uploading site, Six Degrees, fizzled out shortly after its launch in 1997. In 2002, LinkedIn, the professional networking site, launched, followed shortly thereafter by MySpace (2002). In three years, MySpace became the most visited website on the planet. It was quickly eclipsed by modern social media platforms like Facebook. Myspace has changed hands frequently over the years, with Justin Timberlake purchasing the company in 2011 for $35 million. Time Inc. purchased it in 2016.
Modern Social Media Sites and Stats
Today, there are several major social media platforms. The largest and most popular include the following:
- Reddit (launched in 2005 by Steve Huffman and Alexis Ohanian)
- YouTube (launched in 2005 by Steve Chen, Chad Hurley, and Jawed Karim)
- Facebook (founded in 2006 by Harvard student Mark Zuckerberg)
- Twitter (founded in 2006 by Jack Dorsey and others)
- Pinterest (launched in 2010 by app developer Ben Silbermann)
- Instagram (founded in 2010 by Stanford graduate Kevin Systrom)
- Snapchat (launched in 2011 by Stanford students Evan Spiegel, Reggie Brown, and Bobby Murphy)
- TikTok (launched in 2016 by the Chinese company ByteDance)
These platforms serve a combined total of more than 5 billion social media users. Every minute of the day, at least according to one source, those users:
- Share nearly 530,000 photos on Snapchat
- Watch more than 4 million videos on YouTube
- Send more than 450,000 tweets on Twitter
- Post nearly 50,000 photos on Instagram
- Update nearly 300,000 statuses on Facebook
- Post more than 500,000 comments on Facebook
Dealing With Offensive or Defamatory Social Media Posts
With all of that activity, there's bound to be problems. Say you run a restaurant. You have pages on Meta's Facebook and Instagram sites, and your staff from time to time posts funny restaurant videos on TikTok. One day, a member of your staff shows you a screenshot of a Facebook post that really upsets you:
I wouldn't eat at that place if you paid me! I heard the owner is a racist pedophile!
You immediately report this false statement to Facebook.
Days go by, and while you are trying to tend to your mental health, you seem to notice a drop in your business. You check Facebook again and see that the comment is still there. You report it again, but Facebook doesn't take it down.
That's when you decide to get in touch with a lawyer and see what you can do.
Section 230 of the Communications Act of 1996
The lawyer tells you that unfortunately there isn't much you can do (against Meta, anyway). With only limited exceptions, federal law generally immunizes social media platforms from civil lawsuits, including defamation lawsuits, based on content posted by third parties.
In 1996, years before the first modern social media platforms were invented, Congress amended the Communications Act of 1934 to help promote the growth of the rapidly developing internet in light of free speech. Congress believed that if “interactive computer services" could be held liable for content posted by third parties, the threat of litigation would deter people from creating new sites. So it passed section 230 of the Communications Decency Act. Section 230 largely does two things: it specifically excludes social media platforms from being a "publisher" and protects "good faith" content moderation.
Not a Publisher or a Speaker
First, section 230 states that “interactive computer services," which today includes social media platforms, cannot be treated as the “publisher" or “speaker" of content posted by others on their sites. If the platform isn't considered to be the publisher or the speaker of the content, they aren't legally responsible for the content.
Section 230 essentially immunizes online platforms from most state law claims (also known as “torts.") This means you wouldn't be able to sue Instagram, Tik Tok, or any other social media site in court for, say, defamation, intentional infliction of emotional distress, online harassment, or cyberbullying.
Content Moderation Decisions
Second, section 230 grants social media platforms broad protection from lawsuits based on content moderation decisions. As long as they act in “good faith," they are free to remove any “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable" content, or they can choose to leave it up. It's up to them to decide whether something is harmful and remove it.
Getting back to the example, Facebook can't be sued because they fail to remove an offensive post directed at you even if it is completely false. Your lawyer tells you that if you were to sue Facebook, a court would most likely dismiss your case, despite the defamatory content, because of this broad grant of immunity. That's not to say you can't sue someone, but tracking down the user who posted the comment poses a challenge.
Exceptions to Section 230
You should know that there are ways around section 230 immunity. Some of these are expressly in the statute. Others are legal theories you might be able to raise in your specific case.
Intellectual Property Claims
You can sue social media platforms if they violate your intellectual property rights. Suppose you wrote an original poem and included it in the menu on your Facebook page. An anonymous user copies your poem and posts it on another Facebook page. You would be able to sue Facebook for copyright infringement (which is why they quickly remove posts that implicate copyright or other intellectual property rights).
Content Created By the Social Media Platform
Another exception to immunity is for content that the social media platform itself creates. While they can't be liable for content someone else posts, they are legally responsible for their own content. So if someone at Facebook had posted the comment about your restaurant, you could sue Facebook for defamation.
Other Statutory Exceptions
There are a few additional exceptions to immunity that are contained in section 230 itself. Social media companies are not immune from federal criminal prosecution. They also can be sued for violating certain privacy laws applicable to electronic communications. Finally, they are not immune from state or federal laws relating to sex trafficking.
Other Legal Theories: Breach of Contract and Failure to Warn
A few people have managed to get around section 230 immunity when the conduct of the social media company itself was at issue. In one case, a user reported a post and the social media company promised to remove it. They didn't. Rather than sue the social media company for the offensive post, the user successfully sued it for breach of contract.
In another case, a social media platform was aware that two of its users were convicted sex offenders, and that they used the platform to find hookups. They raped one of the women they met on the site. The victim successfully sued the social media platform for failing to warn her of the danger posed by the two users.
Note that in both of these situations, the claim against the social media platform was not really based on the content of a third party's post. The claims were based on the conduct of the social media platform itself.
If You Are Upset With a Social Media Company, Consult a Lawyer
Generally speaking, if you can show that your legal claim is based on something other than the content of another user's post, you may be able to sue the social media company. Otherwise, section 230's broad grant of immunity would bar your claim.
Even though section 230 is pushing 30 years old, this is still an evolving area of the law. There's talk amongst lawmakers in Congress about amending, or even repealing, section 230. And, in the right case, you may be able to avoid section 230 immunity entirely.
If you are thinking about suing a social media company for online defamation, consider consulting with, depending on your case, a personal injury attorney, a contracts attorney, or an intellectual property attorney. They could give you advice about the legal issues within the context of an attorney-client relationship, help you understand your rights, and represent you if you decide that suing a social media company is in your best interest.