This week, a trial commenced in the United States that could drastically change how Facebook and Instagram operate globally.
The trial in Oakland, which is expected to last six weeks, pits 29 US states against the two social media platforms’ owner, Meta. Four states – California, Colorado, Kentucky and New Jersey – are running the jury case on behalf of the rest.
Their 233-page claim, filed in 2023, makes four key allegations, which paint a damning picture that Meta deliberately designed and monetised Instagram and Facebook to exploit the psychological vulnerabilities of children and teenagers. One of the states’ key witnesses is a former Meta safety engineer and whistleblower, Arturo Béjar.
Meta strongly rejects the allegations at the centre of the case. During his opening remarks, Paul Schmidt, a lead attorney for the company, said: “There can be no dispute that Meta has both recognised that people can struggle with their use of social media and tried to come up with tools to help them.”
If Meta loses the case – as happened in similar recent cases in California and New Mexico – the company could face fines that run into the hundreds of billions of dollars. It may also be forced to redesign Facebook and Instagram – and not just for US users.
The first claim against Meta involves exploitative and addictive product design. The states argue Meta engineered core platform features on Facebook and Instagram to stimulate compulsive engagement and intermittent dopamine loops – similar to what happens when playing poker machines.
The features in question include algorithms driving infinite scroll, autoplay, persistent push alerts, visual image filters that induce body dysmorphia, and vanity metrics, better known as “likes”.
Internal documents cited in the lawsuit allege Meta studied adolescent brain development (including aspects such as lower impulse control and high reward sensitivity) and tailored its products to maximise the length of time users spent on platforms.
The states’ second claim is that Meta concealed internal research showing Instagram use was linked to increased depression, anxiety, body image issues and self-harm among teens. The states say Meta actively misled parents, educators and young users by publicly claiming its platforms were safe, while internally recognising that users were hooked against their own wellbeing.
The third claim in the case relates to systematic violations of the Children’s Online Privacy Protection Act. The states jointly claim Meta violated this law by harvesting the personal data of children under age 13 without verifiable parental consent.
The final area relates to violations of state consumer protection laws. The states assert dozens of parallel counts under individual state fair-trading and fraud laws.
California Attorney General Rob Bonta and other state lawyers told the presiding judge that while Meta’s warned potential damages in the case could reach US$1.4 trillion, a more likely and realistic figure totals roughly US$200 billion.
This is close to the 1998 settlement between 52 US state and territory attorneys general and the country’s four largest tobacco companies for US$206 billion.
In addition to financial penalties, the states are also seeking court-ordered product redesigns.
At the heart of the impact of this case is whether Meta’s business model has produced a harmful product. The business model itself is simple. It is to sell advertising. However, this requires engagement with content on the platforms.
During opening statements, California Deputy Attorney General Megan O’Neill said this engagement was driven by four core actions: “hook” users, “hold” them for as long as possible, “harvest” their data, and “hide” the truth about the dangers.
The states argue the only way to break the “hook, hold, harvest, hide” pattern is to redesign Meta’s platforms by, for example, removing infinite scrolling for youth and ending deceptive safety representations.
If the jury finds in favour of the states, any court order as to the redesign of Meta’s platforms may have a global impact.
It is technically and economically impractical for Meta to maintain separate, safer products solely for US users. Plus, if it does maintain the existing design of Facebook and Instagram for users outside the US, it could leave itself open to litigation in other jurisdictions.
There is a different way to tackle the alleged harms of social media platforms: instead of playing “whack-a-mole” by creating bespoke laws and regulations to address the changing harms, countries can impose a digital duty of care.
This is a proactive safety standard. It would require social media platforms to design safe products from the start.
Some countries, including Australia, have already committed to this.
Other countries will surely be closely watching what effect a digital duty of care will have in Australia – just as they will be watching closely what happens in Oakland over the next six weeks.
