Panel revives suit claiming Snapchat speed filter negligently designed

A 9th U.S. Circuit Court of Appeals panel on Tuesday reversed the dismissal of a negligence suit against Snapchat over its speed filter feature that was used by teenagers killed in a high-speed crash.

The panel revived the lawsuit after finding that the teens' parents based their claim against Snapchat on an alleged negligent design of the app feature rather than for publishing their deceased children's story. The case arises from a crash in Wisconsin four years ago that killed Hunter Morby, 17, Landen Brown, 20, and Jason Davis, 17.

Davis was driving more than 100 miles an hour shortly before colliding into a tree, according to the court's summary of the case. The parents of the teens sued Snapchat in the Central District of California, alleging the filter is what caused the teens to drive at high speeds. The filter allows users to record their speed in real time; that speed is then overlaid onto a photo or video. Lemmon et al. v. Snap, 19-CV-4504 (C.D. Cal., filed Dec. 16, 2019).

Last year, U.S. District Judge Michael W. Fitzgerald dismissed the case, finding that the Communications Decency Act barred the claims because the filter was a neutral tool that could be utilized by the app's users for either appropriate or inappropriate purposes.

The 9th Circuit panel, comprised of Judges Kim McLane Wardlaw and Carlos T. Bea, and U.S. District Judge James D. Cain of the Western District of Louisiana, unanimously agreed that Snap cannot utilize the immunity the act provides social media platforms. That is because the parents sought to hold Snapchat responsible for its own conduct when it created the filter, not for its role as a publisher, the panel ruled. The duty that Snapchat is accused of breaching arises out of its capacity as a product designer, and that duty doesn't involve monitoring or removing user content, the panel concluded. Carly Lemmon et al. v. Snap Inc., 20-55295 (9th Cir. 2021).

The opinion, written by Wardlaw, states that the panel viewed the negligent design claim as independent of the content that users publish with the speed filter. The app isn't being blamed for publishing the post, nor is it the post itself that killed someone, the panel said. Liability under Section 230(c) (1) of the act stops only when a plaintiff faults a defendant for information posted by third parties, which means that "internet companies remain on the hook when they create or develop their own internet content," Wardlaw wrote.

"[O]ur case law has never suggested internet companies enjoy absolute immunity from all claims related to their content-neutral tools. To the contrary, 'the CDA was not meant to create a lawless, no man's land on the internet,'" Wardlaw wrote, citing Fair Housing Council of San Fernando Valley v. Roommates.com LLC, 2008 DJDAR 4787 (9th Cir. 2008).

Munger Tolles & Olson LLP partner Jonathan H. Blavin represented Snap. Rachel Racusen, a spokeswoman for Snap, declined to comment on the opinion.

The parents' attorney, Naveen Ramachandrappa, a partner at Bondurant Mixson & Elmore LLP, said Tuesday's rejection of Snap's attempt to shield itself under the Consumer Decency Act is now the second such opinion, with the Georgia Court of Appeals having previously rejected virtually identical arguments made by Snapchat in another speed filter case.

"We appreciate the careful attention that the 9th Circuit paid to this case, and the well-written, unanimous opinion reflects such thoughtful work by the panel," Ramachandrappa said. "We look forward to returning to the district court and having this case moved forward with discovery and a fair determination of its merits by a jury."