By Rajan Philips –
Rajan Philips
On Wednesday, 25th March, a Los Angeles Superior Court jury found Big Tech’s Meta Platforms Inc. and Google to have been negligent in providing online platforms to their users without warning them of the addictive dangers of the platforms. The day before in Santa Fe, New Mexico, another jury had found Meta to have wilfully violated the state’s unfair practices laws in failing to protect children from online predators.
In the California case, a 20-year-old woman identified as K.G.M., or Kaley, successfully sued for damages for becoming “severely addicted to Instagram (Meta) and YouTube (Google) as a child, leading to a downward spiral of body dysmorphia, depression, and suicidal ideation.” She was awarded $3M in compensatory damages to be paid 70% by Meta and 30% by Google. The jury is set to deliberate further on punitive damages the companies should pay for malice or fraud. In the New Mexico case, Meta was ordered to pay $375 million in damages.
The awarded amounts are trifle to the giant companies that are floating in trillions of dollars for selling what is an essentially ephemeral but arguably addictive product. Yet the verdicts augur well for thousands of similar cases that are before courts filed by teenage plaintiffs and public agencies. Equally important, they will force Big Tech giants to reconsider the design of their social media platforms. Their dilemma is that in redesigning their platforms to attenuate their addictiveness, they are also likely to lose their current market capture whose primary attraction is its very addictiveness.
Both Meta and Google have already indicated their intention to appeal. They both have deep pockets to draw from, unlike TikTok and Snap who too were named in the LA case but chose to settle before the start of the trial. The settlement terms are not know but both are believed to have opted against litigating to avoid the huge legal costs involved. The two rulings are being called Big Tech’s new “Big Tobacco Moment”, recalling the lawsuits of the 1990s that held tobacco companies like Philip Morris and RJ Reynolds accountable for the harms of cigarettes. The tobacco companies were forced to reach a $206 billion dollar settlement in 1998, with more than 40 states and an agreement to stop marketing to minors.
The two social media rulings are not the end of the matter but could be called the end of the legal assertions by tech companies that their social media broadcasting is protected as free speech by the First Amendment and that as carriers of the messages posted by users, they (the tech companies) are not responsible for their content. The latter was the principal argument of Google (for YouTube), but the LA jury of seven women and five men disagreed, based on the evidence presented and the novel legal theory that online platform design can create an addictive product.
The Pleasure Chemical of Addiction
Psychologists, neuroscientists, mental health advocates and teachers of children have long identified the addictive effects of social media users, especially children. The effects are global and so are the stories about their tragic victims. Social media have become sites for online bullying, beauty filtering as well as body shaming, depression by comparison, sycophancy, and sexual predation. Coroners have blamed social media platforms for teenage suicides. Stanford psychiatrist Anna Lembke has authored a popular book, Dopamine Nation: Finding Balance in the Age of Indulgence, pointing to social media platforms as the addictive substance of choice of our time.
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Dopamine (3-hydroxytyramine) is a neuro-modulatory molecule that functions as neurotransmitter in the human brain and is at the heart of addiction mechanics. It is the brain’s “pleasure chemical” that is released in response to external stimuli ranging from survival behaviours, pleasurable activities, to addictive stimulants. The natural design of the brain provides the reward mechanism for activities needed for survival and procreation. The design also responds to addictive substances and habits by releasing excessive levels of dopamine far exceeding the levels associated with non-addictive activities.
Greater the release of dopamine, greater the pleasure and greater the craving for the stimulant. The addiction cycle starts with the individual being first exposed to an addictive substance or habit and is rewarded by a large release of dopamine; the brain then both reinforces the behaviour and counters it by reducing the reception and release of dopamine – triggering the need for higher doses for the same pleasure reward; the cycle becomes vicious as the individual turns compulsive in craving for the addictive stimulant.
Psychiatrists identify two common risk factors in the addiction cycle. The first is the “dose effect” or “immersion”, referring to the amount used or, in the case of social media, the time spent online. The second ls “deification”, the tendency to ‘worship’ social media products as superhuman intelligences or … godlike entities that are ultra reliable.” The corollary of deification among teenage victims is self-idealization and self-comparison leading to lowering of self-esteem and emotional fatigue, depression and anxiety, or body image issues and eating disorders.
Individuals react differently to addictive stimuli, and Big Tech lawyers at the two trials unsuccessfully tried to shift the causes for addiction to the personal lifestyles and the mental health problems of the plaintiffs, rather than the social media platforms themselves. Psychiatrists opine that while those with pre-existing problems are more vulnerable to addition than others, there is evidence that social media can both ‘exacerbate’ pre-existing conditions as well as ‘induce’ new habits.
Engineered Addiction
Both exacerbation and inducement would appear to have been present in the addiction history of 20 year old KGM, or Kalley, the plaintiff in the California case who testified on her own behalf. She said that she became addicted to YouTube at age six and Instagram at nine, and they both had “deleterious effects on her wellbeing.” According to her testimony, she became depressed by age 10, and began engaging in self-harm, getting aloof from her family and straining her relationships in school. By 13, she was diagnosed with “body dysmorphic disorder and social phobia.”
KGM’s lawyer, Mark Lanier, connected the legal dots: “How do you make a child never put down the phone? That’s called the engineering of addiction. They engineered it, they put these features on the phones.” He called Instagram and YouTube “Trojan horses” – “they look wonderful and great … but you invite them in and they take over.” KGM’s experience, her lawyers argued, “is emblematic of what tens of thousands of young people have faced on social media and in their offline lives.”
A number of addictive elements have been identified in the design of social media platforms. They include easy access, instant gratification, infinite scrolling, personalized algorithms and notifications, variable rewards (likes/comments/shares) and social validation and bonding – one and all of which trigger large dopamine releases and the formation of compulsive habits leading to emotional disorders and mental health challenges.
Counter testimonies were provided by Adam Mosseri, the head of Meta’s Instagram, and Mark Zuckerberg himself, Meta’s CEO and Facebook founder. Their main argument was that there is no existing body of scientific work to prove that social media causes mental health harms. Mosseri attempted to draw a distinction between “clinical addiction” and “problematic use” which he compared to “watching TV for longer than you feel good about.” That argument was quickly shot down by lawyer Mark Lanier who got Mosseri to admit that he is not a doctor express such an opinion.
Apart from clinical evidence, Lanier presented evidence from internal corporate discussions and emails to establish that the two Big Tech companies knew what they were doing, the harm they were causing and the way they were choosing to ignore their own internal warnings. Lanier produced in court an internal Meta study called “Project Myst” which had found evidence that children who had experienced “adverse effects” were most likely to get addicted to Instagram. The study also acknowledged that parents were powerless to stop their children’s addiction.
Internal emails showed that Meta’s own experts were “unanimous on the harm there,” and that they were talking about “encouraging young girls into body dysmorphia.” Yet when it came to banning filters that distort faces, the high command ignored the technical recommendation. One of the reasons according to an internal email was that removing such filters would “limit our ability to be competitive in Asian markets (including India).”
Was fear of losing executive compensation a factor in not banning the marketing of harmful products like “beauty filters?
Lanier reminded Instagram Chief Mosseri that his salary of “about $900,000 per year” was only a small part of full his compensation that could go as high as $10 million or $20 million an year, including bonuses and stock options, but depending on annual business turnover. Lanier questioned Mosseri whether decisions not to ban product features such as “beauty filters,” were meant to protect and enhance executive compensation. “I was never concerned with any of these things affecting our stock price,” Mosseri replied. But he could not erase the dots, or doubts.
The age verification process to stop children from starting to use social media at a young age is another concern. Instagram policy, according to Zuckerberg, is to restrict users under the age of 13, and to provide triggers to detect users who lie about their ages to get online. This obviously did not work for KGM, the plaintiff, who got hooked on at the age of six. Mosseri tried to argue that Instagram makes “less money from teens than from any other demographic on the app,” but this was refuted by research evidence showing that people who join young turnout to be long term users.
Lawyer Mark Lanier pointed out that in dealing with vulnerable people, Big Tech companies could either help them, ignore them, or “prey upon them and use them for our own ends.” Zuckerberg agreed that “no reasonable company would prey upon vulnerable people to make money, and that a reasonable company should try to help the people that use its services.” That Big Tech has been failing in being responsible and has been negligent in protecting vulnerable people is the jury verdict coming out of New Mexico and California.
