Good news is so rare these days, you do not quite know how to take it. You want to celebrate, but a rival instinct tells you it would be pulled back somehow, the same feeling you get when your team scores a late winner, but you are filled with instant dread that the goal could be overturned on a video replay.
Perhaps people responded that way to the two courtroom losses suffered last week by Meta, the company that owns Facebook and Instagram, when two US juries on successive days found against it in a pair of landmark cases. First came a verdict in New Mexico, fining the company US$375 million for enabling harm, including child sexual exploitation, on its platforms and for misleading consumers about their safety. A day later, jurors in California awarded US$6 million in damages to a young user who had said that Meta (along with YouTube) had deliberately designed addictive products that had hooked her from childhood, causing her grave harm.
Campaigners were thrilled, believing they had at last made a breakthrough in their long battle to tame the tech companies that shape so much of our daily lives — influencing what we know of the world, how we talk to others and how we feel about ourselves.
I spoke the day after the California verdict to Frances Haugen, the former Facebook employee turned whistle-blower who, by releasing 20,000 pages of internal documents in 2021, provided clear evidence that the company knew its platforms were causing harm, whether damaging children or destabilizing democracy, but went ahead anyway in pursuit of “astronomical profits.” Haugen said that Meta could be facing its “asbestos moment,” with its products deemed toxic and facing legal payouts amounting to, by her calculation, as much as a trillion dollars — a sum that, she said, could make bankruptcy a possibility.
Before assessing the likelihood of that outcome, it is worth reminding ourselves of the toxicity. Alongside Haugen’s files, a useful text is Careless People, the memoir written last year by fellow Facebook whistle-blower Sarah Wynn-Williams. She describes how the company, able to track users’ activity on and off the platform, could see when, for example, girls aged between 13 and 17 deleted a selfie. Realizing that signaled the girls’ dissatisfaction with their appearance, the company saw a way to monetize that unhappiness. For a fee, a cosmetics company could serve a beauty ad to those children at that very moment.
Facebook did not hide this behavior; they boasted of it. Wynn-Williams talked about how Facebook made a presentation for an Australian client, bragging that its ability to monitor users’ online lives — their posts, their photos, their conversations with friends — enabled them to know exactly when teenage girls were feeling “worthless,” “insecure,” “stressed,” “defeated,” “anxious,” “stupid,” “useless” and “like a failure.” Those were optimal moments for selling.
Dissenting voices within the company expressed unease, only to be dismissed. The court in New Mexico heard how a former Meta employee wrote to Mark Zuckerberg, founder and CEO, urging him to see the danger in allowing young girls access to a cosmetic surgery filter on Instagram that let users see how they would look with bigger eyes or thicker lips. The colleague e-mailed to say that one of his daughters had been “hospitalized twice for body dysmorphia” and that, when it came to body image, “the pressure on them and their peers coming through social media is intense.” Zuckerberg was unmoved. He said it would be “paternalistic” to limit users’ “ability to present themselves in these ways.”
Haugen, who used to work in the company’s civic integrity team, said how colleagues might propose a small tweak that would substantially reduce the harm the platform was doing. However, if that tweak — say, not sending notifications to children late at night, urging them to come back to Instagram — caused so much as a 1 percent drop in user engagement, the bosses would veto it. As Haugen puts it: “Mark said the most important thing is increasing time spent on the platform.”
So it is no surprise that so many have welcomed this week’s court decisions. At long last, the little guys taking on the social media titans might have found a way around the “liability shield” that protected them for decades.
Passed in the 1990s, section 230 of the key legislation ruled that the tech companies could not be held responsible for the content posted on their platforms, any more than you could hold the Post Office responsible for the contents of an abusive letter. The California case, in particular, swerved past that shield by focusing not on the content — this or that unpleasant post — but rather the content recommendation system, meaning the machinery that determines what users see.
That machinery — addictive by design, whether it is automatic video play or the infinite feed that encourages perpetual scrolling — is devised and operated by the tech companies. Which means they are liable for the harm it does. As lawyer Ravi Naik, acting for Wynn-Williams and others, said: “These systems are made by people. These are not abstract entities, handed down by the gods. This is about the decisions of people and accountability for the choices they made. Isn’t that what the law is for?”
What of my instinctive worry that this win could be overturned, video assistant referee-style? It is true that last week’s verdicts would be appealed, that they could work their way up the system until they reach the US Supreme Court which, in its current form, could rule in big tech’s favor. It is true that years of legal wrangling would allow the tech firms to keep on doing what they have been doing and to keep making billions. However, legal experts say jury verdicts are less prone to be overturned than judge’s ones, and, with thousands of similar cases in the pipeline, it would only take a minuscule fraction of the US’ teenagers to combine in a successful class-action lawsuit to devastate Meta. Haugen’s done the math: 150,000 teenagers awarded US$6 million each would leave Meta with a trillion-dollar bill.
Another worry: this is only the US — what about the rest of the world? Admittedly, while the likes of the UK and EU have stringent rules, enforcement has been lacking. European regulators have been fearful of the US tech behemoths, just as European governments have been scared of the administration of US President Donald Trump.
However, that could be changing. As Europeans stand aside from Trump’s disastrous war on Iran, there are signs they are becoming more ready to assert their own “digital sovereignty.” Others are doing that already, such as Australia’s ban on social media for people younger than 16, a move Indonesia followed on Saturday.
Perhaps the largest concern is artificial intelligence (AI). Is it possible that the law has finally landed a shot on old social media platforms just as a newer, greater menace enters the ring? Not for the first time, Zuckerberg promises what to him is a bright new future, but which, to almost everyone else, sounds like a dystopian nightmare. He wants to see AI become a godlike “superintelligence” more powerful than the human brain and looks forward to the day when AI fills the role played by our friends. Surely this week’s legal victories do nothing to curb that threat?
Do not be so sure. The courts have ruled that tech firms are liable for their systems, and AI, says Naik, “is entirely a human-designed system.” Every choice that made, for example, Elon Musk’s Grok produce fake nude images of real women to order was a human one — for which Grok’s creator is being held accountable, in the form of lawsuits filed by US authorities and individuals who say they were abused by the chatbot, among them Ashley St Clair, the mother of one of Musk’s children.
Of course, the broligarchy consists of determined men with unfathomably deep pockets and a friend in the White House. No one should assume they would fold quickly or easily, but in the long war against those who have done so much to corrode 21st-century life, last week brought an important victory — and we should celebrate it.
Jonathan Freedland is a Guardian columnist
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