The U.S. Court of Appeals for the Ninth Circuit has allowed a civil lawsuit to move forward against Snapchat, a smartphone social media app, brought by the parents of three teenage boys who died tragically in a car accident after reaching a maximum speed of 123 miles per hour. We agree with the court’s ruling, which confirmed that internet intermediaries are not immune from liability when the harm does not flow from the speech of other users.

The parents argue that Snapchat was negligently designed because it incentivized users to drive at dangerous speeds by offering a “speed filter” that could be used during the taking of photos and videos. The parents allege that many users believed that the app would reward them if they drove 100 miles per hour or faster. One of the boys had posted a “snap” with the “speed filter” minutes before the crash.

The Ninth Circuit rightly held in Lemmon v. Snap, Inc. that Section 230 does not protect Snapchat from the parents’ lawsuit. Section 230 is a critical federal law that protects user speech by providing internet intermediaries with partial immunity against civil claims for hosting user-generated content (see 47 U.S.C. § 230(c)(1)). Thus, for example, if a review site publishes a review that contains a statement that defames someone else, the reviewer may be properly sued for writing and uploading the defamatory content, but not the review site for hosting it.

EFF has been a staunch supporter of Section 230 since it was enacted in 1996, recognizing that the law has facilitated free speech and innovation online for 25 years. By partially shielding internet intermediaries from potential liability for what their users say and do on their platforms, Section 230 creates the legal breathing room for entrepreneurs to create a multitude of diverse spaces and services online. By contrast, with greater legal exposure, companies are incentivized in the opposite direction—to take down more user speech or to cease operations altogether.

However, this case against Snapchat shows that Section 230 does not—and was never meant to—shield internet intermediaries (such as social media platforms) from liability in all cases. Section 230 already has several exceptions, including for when online platforms host user speech that violates federal criminal law or intellectual property law.

In this case, the court explained that Section 230 does not protect companies when a claim is premised on harm that flows from the company’s own speech or actions, independent from the speech of other users. As the Ninth Circuit explained, the parents are aiming to hold Snapchat liable for creating a defective product with a feature that inspired users, including their children, to drive too fast. Nothing in the claim tries to hold Snapchat liable for publishing the “speed filter” post by one of the boys before they died in the crash. Nor would the parents “be permitted under § 230(c)(1) to fault Snap for publishing other Snapchat-user content (e.g., snaps of friends speeding dangerously) that may have incentivized the boys to engage in dangerous behavior.”

Thus, the court repeatedly emphasizes in the opinion that the parents’ claim “stand[s] independently of the content that Snapchat’s users create with the Speed Filter,” and internet intermediaries may lose Section 230 immunity for offering defective tools, “so long as plaintiffs’ claims do not blame them for the content that third parties generate with those tools.”

The Ninth Circuit also noted that the Lemmon case is distinguishable from other cases where the plaintiffs tried to creatively plead around Section 230 by arguing that the design of the website or app was the problem, when in fact the plaintiffs’ harm flowed from other users’ content—such as online content related to sex trafficking, illegal drug sales, and harassment. In these cases, the courts rightly granted the companies immunity under Section 230.

By emphasizing this distinction, we believe the decision does not create a troublesome incentive to censor user speech in order to avoid potential liability. 

One thing to keep in mind is that the Ninth Circuit’s decision not to apply Section 230 here does not automatically mean that Snapchat will be held liable for negligent product design. As we saw in a seminal Section 230 case, the website Roommates.com was denied Section 230 immunity by the Ninth Circuit, but later defeated a housing discrimination claim. The Lemmon case now goes back down to the district court, which will allow the case to proceed to a consideration of the merits.