It’s déjà vu all over again, as the famous quote goes.
The great thing about being a lawyer long enough is that eventually, everything that is old becomes new again. Early in my career, I was coverage counsel for an insurer who issued policies to various ancillary defendants in the tobacco litigation brought by states across the country. The current state action by the Commonwealth of Massachusetts against Meta alleging Chapter 93A violations is – from at least a meta level (pun unquestionably intended) – in many ways the same case all over again. This time, it is allegations that product design features in the platform resulted in social media addiction and harm to young users, and which, combined with misleading statements by Meta, violated Massachusetts’ consumer protection statute, Chapter 93A.
A new decision from the Supreme Judicial Court greenlights this theory of liability, finding that it is not barred by Section 230, which imposes certain protections on internet providers related to their content. The Court here lays out its view of the proper scope of Section 230 protection, finding that it provides a limited, although broad, scope of immunity, but not one so broad as to insulate an internet provider, such as Meta, from liability for its own actions, including under state product liability law (at least by inference) and under Massachusetts’ consumer protection law. The conclusion, and the future it opens up, is eerily similar to the way decisions in the tobacco litigation, over time, upended the assumption that numerous barriers either practically or legally barred – or at least made fundamentally unworkable – such litigation.
If you know the path trod by the tobacco litigation brought by states decades ago, then you can map out the future path of this litigation. It may not play out exactly the same way as did the tobacco suits, but from here you can see the roads, the offramps and the different routes it could travel.