Protecting the Kids or Publicity Stunt? Ontario School Boards Sue Social Media

Ontario school boards are suing social media platforms like TikTok and Meta over conspiracy theory that they are bad for kids.

For years now, mainstream media in North America have been pushing the conspiracy theory that social media is this overwhelming threat to society in terms of mental health. This was especially the case when the mainstream media insisted that social media is bad for kids mental health. Whether it is through radicalization, making kids more compulsive or even shortening kids attention spans, no conspiracy theory was too silly for the large media companies to push.

The reality has long been that these claims were never really backed up by any solid evidence. As we noted back in February, actual research shows the exact opposite. Specifically, one study found that YouTube is not radicalizing people. In fact, there has been plenty of evidence from some of the very studies that was used to push these conspiracy theories that conclude that social media has been a positive impact on those who suffer from anxiety and depression. Overall, though, the evidence saying that social media is harming people’s mental health has been sorely lacking.

Of course, for the large media companies, a lack of evidence for any cause they are pushing is rarely, if ever, an obstacle. After all, large media companies are more often then not these days narrative driven rather than evidence driven (making news sites like Freezenet something of a novelty these days in that regard).

Recently, however, we learned that there are those who are taking the conspiracy theories to the next level. Multiple Ontario school boards have filed a lawsuit against various social media platforms, pushing these wild evidence free claims in the process. From CityNews:

Four Ontario school boards have commenced legal action against social media giants TikTok, Meta Inc. and Snapchat for “disrupting student learning and the education system.”

The Toronto District School Board (TDSB), Peel District School Board (PDSB), Toronto Catholic District School Board (TCDSB), and Ottawa-Carleton District School Board (OCDSB) announced a joint lawsuit of $4.5 billion against the popular social media platforms which were filed in separate cases on Wednesday.

The lawsuit claims that social media products, negligently designed for compulsive use, “have rewired the way children think, behave, and learn, leaving educators and schools to manage the fallout.”

In a statement, the TDSB’s Director of Education, Colleen Russell-Rawlins, said the influence of social media on today’s youth at school cannot be denied.

“It leads to pervasive problems such as distraction, social withdrawal, cyberbullying, a rapid escalation of aggression, and mental health challenges,” said Rawlins. “Therefore, it is imperative that we take steps to ensure the well-being of our youth. We are calling for measures to be implemented to mitigate these harms and prioritize the mental health and academic success of our future generation.”

For me, just reading that alone raises numerous red flags. The most immediately obvious red flag is the fact that in order commence legal action in the form of a lawsuit, you have to show losses and/or damages. For one, how are these school boards harmed by social media? That alone is going to be a difficult thing to show in court. For another, how does one show that a social media platform specifically caused these behavioural problems? After all, there could be a number of factors including the sale of candy bars on school grounds, direct texting between school kids, the fact that physical bullying has been around for centuries, the learning environments that the kids are in, the existence of video games, television, and other forms of media, pre-existing psychological problems, and on and on and on. How does one even come close to filtering out every other possibility for social behavioural issues and say “social media is entirely to blame here”? On a case by case basis, I see that being incredibly difficult. Making blanket claims in a lawsuit like that renders this task seemingly impossible.

The article really only serves to raise even further questions about the validity of the lawsuit. Snapchat was apparently one of the parties named in the lawsuit and their statement pretty much says it all:

A Snapchat spokesperson tells CityNews that their social media platform was designed to be different from the onset, thus allowing users to communicate with close friends.

“Snapchat opens directly to a camera — rather than a feed of content — and has no traditional public likes or comments,” the spokesperson said. “While we will always have more work to do, we feel good about the role Snapchat plays in helping close friends feel connected, happy and prepared as they face the many challenges of adolescence.”

As University law professor, Michael Geist notes, the lawsuit appears to be very similar to several lawsuits filed in the United States. Apparently, there have been several launched in the US and none of them have been successful to date. In fact, such lawsuits have repeatedly shown to be just as absurd as the one being filed in Canada. Last January, Techdirt wrote about the Seattle lawsuit and noted many of the flaws it had:

The lawsuit was filed against a variety of entities and subsidiaries, but basically boils down to suing Meta (over Facebook, Instagram), Google (over YouTube), Snapchat, and TikTok. Most of the actual lawsuit reads like any one of the many, many moral panic articles you read about how “social media is bad for you,” with extremely cherry-picked facts that are not actually supported by the data. Indeed, one might argue that the complaint itself, filed by Seattle Public Schools lawyer Gregory Narver and the local Seattle law firm of Keller Rohrback, is chock full of the very sort of misinformation that they so quickly wish to blame the social media companies for spreading.

First: as we’ve detailed, the actual evidence that social media is harming children basically… does not exist. Over and over again studies show a near total lack of evidence. Indeed, as recent studies have shown, the vast majority of children get value from social media. There are plenty of moral paniciky pieces from adults freaked out about what “the kids these days” are doing, but little evidence to support any of it. Indeed, the parents often seem to be driven into a moral panic fury by… misinformation they (the adults) encountered on social media.

The school’s lawsuit reads like one giant aggregation of basically all of these moral panic stories. First, it notes that the kids these days, they use social media a lot. Which, well, duh. But, honestly, when you look at the details it suggests they’re mostly using them for entertainment, meaning that it hearkens back to previous moral panics about every new form of entertainment from books, to TV, to movies, etc. And, even then, none of this even looks that bad? The complaint argues that this chart is “alarming,” but if you asked kids about how much TV they watched a couple decades ago, I’m guessing it would be similar to what is currently noted about YouTube and TikTok (and note that others like Facebook/Instagram don’t seem to get that much use at all according to this chart, but are still being sued)

There’s a whole section claiming to show that “research has confirmed the harmful effects” of social media on youth, but that’s false. It’s literally misinformation. It cherry-picks a few studies, nearly all of which are by a single researcher, and ignores the piles upon piles of research suggesting otherwise. Hell, even the graphic above that it uses to show the “alarming” addition to social media is from Pew Research Center… the organization that just released a massive study about how social media has made life better for teens. Somehow, the Seattle Public Schools forgot to include that one. I wonder why?

Honestly, the best way to think about this lawsuit is that it is the Seattle Public School system publicly admitting that they’re terrible educators. While it’s clear that there are some kids who end up having problems exacerbated by social media, one of the best ways to deal with that is through good education. Teaching kids how to use social media properly, how to be a good digital citizen, how to have better media literacy for things they find on social media… these are all the kinds of things that a good school district builds into its curriculum.

This lawsuit is effectively the Seattle Public School system publicly stating “we’re terrible at our job, we have not prepared your kids for the real world, and therefore, we need to sue the media apps and services they use, because we failed in our job.” It’s not a good look. And, again, if I were a Seattle taxpayer — and especially if I were a Seattle taxpayer with kids in the Seattle public school district — I would be furious.

There is also the Mesa lawsuit which turned out to be just as laughable as the Seattle lawsuit:

And, now it appears that the Mesa, Arizona school district has decided to do the same thing. Using the same lawyers. The law offices of Keller Rohrback appears to be trying to carve out this corner of the market as their own: having public school districts waste a shitload of time and resources to publicly proclaim that they can’t prepare the children they’re in charge of educating for the modern internet world.

The Mesa complaint is, not surprisingly, similar to the Seattle complaint. It’s suing the same companies (really: Meta, Google, Snap, Tiktok). Like the Seattle complaint, it argues that social media is a “public nuisance.” Like the Seattle complaint, it says that Section 230 doesn’t protect the companies (it’s wrong). Like the Seattle complaint, it posts a few cherry-picked studies claiming that social media is bad for kids, and ignores more comprehensive studies that argue that opposite. Like the Seattle complaint, it goes hard in proving that Mesa public schools apparently are staffed by administrators and teachers who suck at educating children, and find themselves powerless against… entertainment.

In short, it’s pathetic.

The one main “difference” between the Seattle complaint and the Mesa one is that in Mesa they’ve added a “negligence” claim, saying that social media companies “owe” the school district “a duty not to expose Plaintiff to an unreasonable risk of harm….”

This is all laughably stupid, and not at all how the law works. I mean, it’s possible that the lawyers at Keller Rohrback figure that if they file enough of these lawsuits, eventually they’ll find a judge who lets the moral panic of “social media is bad for kids” overwhelm the actual legal issues, but it’s difficult to see it standing up to any legitimate judicial scrutiny.

Of course, now that we have these two lawsuits, it means it’s almost certain that they’re shopping for similar lawsuits. One hopes that other school districts will reject this nonsense. The whole point of these lawsuits is almost certainly to try to shake down the social media companies to get them to settle, but that seems unlikely.

Another lawsuit was evidently filed in Silicon Valley which tried using RICO against social media:

It gets even worse. The San Mateo County lawsuit is similar to the ones filed in Seattle and Mesa, but with a few differences. While both of the others mainly focused on (already laughable) “public nuisance” claims, San Mateo… also includes a RICO claim.

Yes. RICO.

As regular readers of Techdirt well know, IT’S NOT RICO, DAMMIT. It’s never RICO. But it’s especially not RICO in this case. RICO means something. It most certainly does not mean “a lot of these companies have been bad for the kids I’m supposed to be teaching how to live in the modern world, which we can only support by cherry picking and misrepresenting evidence.” You need to show conduct of an enterprise, through a pattern of racketeering activity called predicate acts causing injury to the plaintiff’s business or property. And you need to show all five elements in there.

Here’s how the San Mateo County Board of Education — which is responsible for educating my children — handle that. They claim each of the defendants (Google, Snapchat, and TikTok — but not Meta, which we’ll get to, and not Twitter, which, hrmph, I guess I’ll also get to) have formed “an association-in-fact” with the “shared goal… to preserve and enhance the market for its social media platforms and RICO Defendants’ own profits.” I mean, under that definition companies in any industry have “an association.” But that’s not how the law actually works.

What about the “pattern of racketeering?” Well… again, they basically say these companies wanted more users, and that’s racketeering. Oh, and then at the very end they just randomly accuse these social media companies of wire fraud. I wish I were joking.

The lawsuits are seemingly an effort to shop around different jurisdictions in an effort to find a judge that will fall for the conspiracy theories. The only success we were able to find was in California and the judgement, as it turns out, was quite perplexing:

There is so much wrong with this decision, it’s hard to know where to start, other than to note one hopes that a higher court takes some time to explain to Judge Kuhl how the 1st Amendment and Section 230 actually work. Because this is not it.

The court determines that Defendants’ social media platforms are not “products” for purpose of product liability claims, but that Plaintiffs have adequately pled a cause of action for negligence that is not barred by federal immunity or by the First Amendment. Plaintiffs also have adequately pled a claim of fraudulent concealment against Defendant Meta.

As noted in that paragraph, the product liability claims fail, as the court at least finds that social media apps don’t fit the classification of a “product” for product liability purposes.

Product liability doctrine is inappropriate for analyzing Defendants’ responsibility for Plaintiffs’ injuries for three reasons. First, Defendants’ platforms are not tangible products and are not analogous to tangible products within the framework of product liability. Second, the “risk-benefit” analysis at the heart of determining whether liability for a product defect can be imposed is illusive in the context of a social media site because the necessary functionality of the product is not easily defined. Third, the interaction between Defendants and their customers is better conceptualized as a course of conduct implemented by Defendants through computer algorithms.

However, it does say that the negligence claims can move forward and are not barred by 230 or the 1st Amendment. A number of cases have been brought using this theory over the last few years, and nearly all of them have failed. Just recently we wrote about one such case against Amazon that failed on Section 230 grounds (though the court also makes clear that even without 230 it would have failed).

Geist, for his part, noted this article which noted this:

“Most of these [lawsuits] are as much about legal success as they are about shaping issues and winning in the court of public opinion,” said Chris Thomas, an assistant professor of educational leadership and policy at the University of Florida. “That is part of the strategy around the lawsuits, even if they have tough hills to climb legally.”

These lawsuits are less about protecting the children and litigating based on sound legal issues and more about being part of a massive publicity stunt. On the surface, that sounds like a pretty big waste of time, but lawsuits are also not cheap. It requires hiring a team of lawyers who, obviously, don’t come cheap. What’s more, seeing these lawsuits through to the very end is also massively expensive save for the unlikely outcome that platforms settle these cases. The probability that these lawsuits will succeed seems quite low and requires judges to have no real basic understanding of how the internet works.

The inherent problem with this is that if these Canadian school boards got sound legal advice, they would know that the chances of success are slim. This means that the millions of dollars they are spending amounts to little more than a huge publicity stunt where it is highly questionable that anything good will come from it. This as opposed to spending that same stack of money on things that actually have a chance to succeed such as improving the learning environment, paying teachers well, and paying for better learning materials such as having text books that aren’t falling apart.

In all likelihood, these legal efforts are a huge waste of time and money. It was built around conspiracy theories that are, of course, highly questionable from the get go. What’s more, the claims, based on what we’ve read, really have a questionable path moving forward.

Don’t get me wrong, there are legal things we, as a society, can do to make social media a safer environment for everyone. A big way is through the passage of an actual comprehensive privacy law which sets standards for how to protect people’s personal information. Unfortunately, real solutions to real problems seem to be something that lawmakers are reluctant to do since they are more interested in being a part of the surveillance capitalism problem as opposed to being part of the solution.

Drew Wilson on Mastodon, Twitter and Facebook.