THE ESTATE OF CARSON BRIDE, by and through his appointed administrator KRISTIN BRIDE; A. K., by and through her legal guardian Jane Doe 1; A. C., by and through her legal guardian Jane Doe 2; A. O., by and through her legal guardian Jane Doe 3; TYLER CLEMENTI FOUNDATION, on behalf of themselves and all others similarly situated v. YOLO TECHNOLOGIES, INC.
No. 23-55134
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
August 22, 2024
D.C. No. 2:21-cv-06680-FWS-MRW
Argued and Submitted April 11, 2024 Pasadena, California
Filed August 22, 2024
Before: Eugene E. Siler,* Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Siler
SUMMARY**
Communications Decency Act
The panel reversed the district court‘s dismissal of plaintiffs’ misrepresentation claims and affirmed the district court‘s dismissal of plaintiffs’ products liability claims in their diversity class action alleging that YOLO Technologies violated multiple state tort and product liability laws by developing an anonymous messaging app which promised to unmask bullying and abusive users, but YOLO never actually did so.
The district court held that
Reversing the district court‘s dismissal of plaintiffs’ misrepresentation claims, the panel held that the claims survived because plaintiffs seek to hold YOLO accountable for its promise to unmask or ban users who violated the terms of service, and not for a failure to take certain moderation actions.
Affirming the district court‘s dismissal of plaintiffs’ products liability claims, the panel held that
COUNSEL
Juyoun Han (argued), Eric M. Baum, Andrew Clark, and Jonathan Axel, Eisenberg & Baum LLP, New York, New York, for Plaintiffs-Appellants.
Ramnik S. Pujji (argued), Carol Yur, and Emma Moralyan, Dentons US LLP, Los Angeles, California, for Defendant-Appellee.
Megan Iorio and Tom McBrien, Electronic Privacy Information Center, Washington, D.C., for Amici Curiae Electronic Privacy Information Center and Fairplay.
OPINION
SILER, Circuit Judge:
Appellee YOLO Technologies developed an extension for use on the Snapchat application (“app“) which allowed users to ask public questions and send and receive anonymous responses. YOLO informed all users that it would reveal the identities of, and ban, anyone who engaged in bullying or harassing behavior. Appellants, three living minor children and the estate of a fourth, all suffered extreme harassment and bullying through YOLO resulting in acute emotional distress, and in the case of Carson Bride, death by suicide. They brought this diversity class action alleging that YOLO violated multiple state tort and product liability laws by developing an anonymous messaging app which promised to unmask, and thereby prevent, bullying
The district court held that
I.
A.
YOLO Technologies developed their app as an extension upon the already-popular Snapchat app. Marketed mainly toward teenagers in mobile app stores, YOLO achieved tremendous popularity, reaching the top of the download charts within a week of its launch. It eventually reached ten million active users.
Anonymity was YOLO‘s key feature. Users would install the app and use it to post public questions and polls for their followers. Other users, also using YOLO, could respond to the questions or polls anonymously, unless they chose to “swipe up” and voluntarily disclose their identity as part of their answer. Without such voluntary revelation, the recipient would not know the responder‘s account nickname, user information, or any other identifying data.
Anonymous messaging applications, even ones marketed specifically to teens, are not new inventions. Plaintiffs contend that “it [has] long been understood that anonymous online communications pose a significant danger to minors, including by increasing the risk of bullying and other antinormative behavior.” In fact, prior applications with anonymous communication features had caused “teenagers [to] take[] their own lives after being cyberbullied.”
As a hedge against these potential problems, YOLO added two “statements” to its application: a notification to new users promising that they would be “banned for any inappropriate usage,” and another promising to unmask the identity of any user who “sen[t] harassing messages” to others. But, Plaintiffs argue, with a staff of no more than ten people, there was no way YOLO could monitor the traffic of ten million active daily users to make good on its promise, and it in fact never did. Many user reviews of the YOLO app on Apple‘s app store reflected frustration with harassing and bullying behavior.
B.
Plaintiffs A.K., A.C., A.O., and Carson Bride all downloaded the YOLO extension and used it on the Snapchat app. All four were inundated with harassing, obscene, and bullying messages including “physical threats, obscene sexual messages and propositions, and other humiliating comments.” Users messaged A.C. suggesting that she kill herself, just as her brother had done. A.O. was sent a sexual message, and her friend was told she was a “whore” and “boy-obsessed.” A.K. received death threats, was falsely accused of drug use, mocked for donating her hair to a cancer charity, and exhorted to “go kill [her]self,” which she seriously considered. She suffered for years thereafter. Carson Bride was subjected to constant humiliating messages, many sexually explicit and highly disturbing. Despite his efforts, Carson was unable to unmask the users who were sending these messages and discover their identities. On June 23, 2020, Carson hanged himself at his home.
A.K. attempted to utilize YOLO‘s promised unmasking feature but received no response. Carson searched the internet diligently for ways to unmask the individuals sending him harassing messages, with no success. Carson‘s parents continued his efforts after his death, first using YOLO‘s
Kristin Bride filed suit against YOLO and other defendants no longer part of the action. The first amended complaint alleged twelve causes of action including product liability based on design defects and failure to warn, negligence, fraudulent and negligent misrepresentation, unjust enrichment, and violations of Oregon, New York, Colorado, Pennsylvania, Minnesota, and California tort law. Plaintiffs’ counsel agreed at a hearing that the state law claims were all based in “misrepresentation, intentional and negligent.” Forty-eight hours after Plaintiffs filed this suit, Snap suspended YOLO‘s access to its application and later announced a complete ban on anonymous messaging apps in its app store.
C.
Plaintiffs’ theories essentially fall into two categories: products liability and misrepresentation. Counsel admitted that the state law claims all fell under misrepresentation, and YOLO splits them between products liability and misrepresentation.
The products liability claims allege that YOLO‘s app is inherently dangerous because of its anonymous nature and that it was negligent for YOLO to ignore the history of teen suicides stemming from cyberbullying on anonymous apps. Plaintiffs based their products liability claim solely on the anonymity of YOLO‘s app at the district court and through initial briefing at this court.1
Plaintiffs’ misrepresentation claims are based on their allegation that YOLO alerted all new users that bullying and harassing behavior would result in the offending user being banned and unmasked, but YOLO never followed through on this threat despite A.K.‘s requests and Kristin Bride‘s emails.
The district court granted YOLO‘s motion to dismiss, finding that the entire complaint sought to hold YOLO responsible for the content of messages posted on its app by users and not for any separate duty or obligation to the Plaintiffs. The court relied heavily on Dyroff v. Ultimate Software Group, Inc., 934 F.3d 1093 (9th Cir. 2019), which involved a lawsuit against a completely anonymous website through which the plaintiff‘s deceased son purchased fentanyl-laced drugs. The district court found this matter essentially on all fours with Dyroff and dismissed the suit.
II.
We review de novo the district court‘s decision to grant YOLO‘s motion to
A.
The Internet was still in its infancy when Congress passed the Communications Decency Act (“CDA“) in 1996.
To address this problem, Congress enacted
The operative section of the law,
In short,
This robust immunity applies to “(1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.” Barnes, 570 F.3d at 1100–01 (footnote omitted). The parties agree that YOLO is an interactive computer service under
The second Barnes prong considers whether the cause of action alleged in the complaint seeks to plead around the CDA‘s strictures and treat the defendant as a “publisher or speaker” of third-party content. See
It is imperative to consider that “neither [subsection 230(c)] nor any other declares a general immunity from liability deriving from third-party content.” Id. at 1100. Indeed, that could not be true; for most applications of
B.
In short, we must engage in a “careful exegesis of the statutory language” to determine if these claims attempt to treat YOLO as the “publisher or speaker” of the allegedly tortious messages. Id. at 1100. This exacting analysis helps us avoid “exceed[ing] the scope of the immunity provided by Congress.”2 Internet Brands, 824 F.3d at 853 (quoting Roommates, 521 F.3d at 1164 n.15). After all,
Our opinion in Calise v. Meta Platforms, published earlier this year, clarified the required duty analysis that originated in Barnes v. Yahoo, Lemmon v. Snap, Inc., and HomeAway.com, Inc. v. City of Santa Monica. Calise, 103 F.4th at 742 (“Our cases instead require us to look to the legal ‘duty.’ ‘Duty’ is ‘that which one is bound to do, and for which somebody else has a corresponding right.‘” (quoting Duty, Black‘s Law Dictionary (11th ed. 2019))). We now conduct a two-step analysis. Id. First, we examine the “right from which the duty springs.” Id. (quotations omitted). Does it stem from the platform‘s status as a publisher (in which case it is barred by
Barnes perfectly illustrates the duty distinction reemphasized in Calise. In that case, Barnes‘s estranged boyfriend posted nude images of her on a fake profile on Yahoo‘s website, and she reached out to Yahoo to get them removed. Barnes, 570 F.3d at 1098–99. Yahoo‘s Director of Communications promised Barnes over the phone that she would personally facilitate the removal of the offending fake profile. Id. at 1099. Nothing happened and Barnes sued, alleging negligent undertaking and promissory estoppel. Id. Skeptical of Barnes‘s negligent undertaking claim, we held that it was simply a defamation claim recast as negligence and asked,
[W]hat is the undertaking that Barnes alleges Yahoo failed to perform with due care? The removal of the indecent profiles that her former boyfriend posted on Yahoo‘s website.
But removing content is something publishers do, and to impose liability on the basis of such conduct necessarily involves treating the liable party as a publisher of the content it failed to remove.
Id. at 1103; see
Barnes‘s promissory estoppel claim, however, fared better. Because this claim “is a subset of a theory of recovery based
The question of whether
C.
We now conduct that inquiry here. The parties divide the claims into two categories—misrepresentation and products liability—and we will continue that distinction in our analysis.
1.
Turning first to Plaintiffs’ misrepresentation claims, we find that Barnes controls. YOLO‘s representation to its users that it would unmask and ban abusive users is sufficiently analogous to Yahoo‘s promise to remove an offensive profile. Plaintiffs seek to hold YOLO accountable for a promise or representation, and not for failure to take certain moderation actions. Specifically, Plaintiffs allege that YOLO represented to anyone who downloaded its app that it would not tolerate “objectionable content or abusive users” and would reveal the identities of anyone violating these terms. They further allege that all Plaintiffs relied on this statement when they elected to use YOLO‘s app, but that YOLO never took any action, even when directly requested to by A.K. In fact, considering YOLO‘s staff size compared to its user body, it is doubtful that YOLO ever intended to act on its own representation.
The district court oversimplified the proper analysis for
In summary, Barnes is on all fours with Plaintiffs’ misrepresentation claims here. YOLO repeatedly informed users that it would unmask and ban users who violated the terms of service. Yet it never did so, and may have never intended to. Plaintiffs seek to enforce that promise—made multiple times to them and upon which they relied—to unmask their tormentors. While yes, online content is involved in these facts, and content moderation is one possible solution for YOLO to fulfill its promise, the underlying duty being invoked by the Plaintiffs, according to Calise, is the promise itself. See Barnes, 570 F.3d at 1106-09. Therefore, the misrepresentation claims survive.
2.
Next, we address the product liability claims. In general, these claims assert that YOLO‘s app is inherently dangerous because of its anonymous nature, and that previous high-profile suicides and the history of cyberbullying should have put YOLO on notice that its product was unduly dangerous to teenagers. We hold that
Plaintiffs first allege product liability claims for design defect, and negligence. The defective design claim alleges that YOLO “developed, designed, manufactured, marketed, sold, and distributed to at least hundreds of thousands of minors” a product that was unreasonably dangerous because of its anonymity. They claim that the bare fact of YOLO‘s anonymity made it uniquely dangerous to minors and that YOLO should have known this because prior anonymous applications had a deleterious effect on minor users. The negligence claim is similar, claiming that YOLO failed to “protect users from an unreasonable risk of harm arising out of the use of their app[].” Failure to mitigate this “foreseeable risk of harm,” Plaintiffs claim, makes YOLO liable.
Plaintiffs also allege products liability claims under a failure to warn theory. The alleged risks are the same as those for defective design and negligence, but the claims are centered more on YOLO‘s alleged failure to disclose these risks to users when they downloaded the YOLO app. Plaintiffs therefore ask for compensatory damages, pecuniary loss, and loss of society, companionship, and services to Carson Bride‘s parents, and punitive damages “based on [YOLO‘s] willful and wanton
At root, all Plaintiffs’ product liability theories attempt to hold YOLO responsible for users’ speech or YOLO‘s decision to publish it. For example, the negligent design claim faults YOLO for creating an app with an “unreasonable risk of harm.” What is that harm but the harassing and bullying posts of others? Similarly, the failure to warn claim faults YOLO for not mitigating, in some way, the harmful effects of the harassing and bullying content. This is essentially faulting YOLO for not moderating content in some way, whether through deletion, change, or suppression.
Our decision in Lemmon v. Snap, Inc. does not help Plaintiffs. In that case, parents of two teens killed while speeding sued the company that owns Snapchat. Lemmon, 995 F.3d at 1087. They alleged that the boys had been speeding because of a feature on the Snapchat app that allowed users to overlay their current speed onto photos and videos. Id. at 1088–89. It was widely believed that Snapchat would reward users with in-app rewards of some kind if they attained a speed over 100 mph. Id. at 1089. The boys operated the filter moments before their deaths. Id. at 1088. The parents brought negligent design claims alleging that Snapchat, despite numerous news articles, an online petition about the inherent problems with the filter, “at least three accidents,” and “at least one other lawsuit,” continued to offer a feature that “incentiviz[ed] young drivers to drive at dangerous speeds.” Id. at 1089. The district court dismissed the complaint on
Here, Plaintiffs allege that anonymity itself creates an unreasonable risk of harm. But we refuse to endorse a theory that would classify anonymity as a per se inherently unreasonable risk to sustain a theory of product liability. First, unlike in Lemmon, where the dangerous activity the alleged defective design incentivized was the dangerous behavior of speeding, here, the activity encouraged is the sharing of messages between users. See id. Second, anonymity is not only a cornerstone of much internet speech, but it is also easily achieved. After all, verification of a user‘s information through government-issued ID is rare on the internet. Thus we cannot say that this feature was uniquely or unreasonably dangerous.
Similarly, Internet Brands provides no cover for Plaintiffs’ failure to warn theory. In that case, we upheld liability against a professional networking site for models under a failure to warn theory. Internet Brands, 824 F.3d at 848. Plaintiff created a profile on the website Model Mayhem, owned by Internet Brands, advertising her services as a model. Id. Meanwhile, the site‘s owners were aware that a pair of men had been using the site to set up fake auditions, lure women to “auditions” in Florida, and then rape them. Id. at 848-49. Yet the owners did not warn plaintiff, and she fell victim to the scheme. Id. at 848. We reasoned that plaintiff sought to hold defendant liable under a traditional tort theory—the duty to warn—which had no
In short, the defendant in Internet Brands failed to warn of a known conspiracy operating independent of the site‘s publishing function. Id. But here, there was no conspiracy to harm that could be defined with any specificity. It was merely a general possibility of harm resulting from use of the YOLO app, and which largely exists anywhere on the internet. We cannot hold YOLO responsible for the unfortunate realities of human nature.
Finally, we clarify the extent to which Dyroff v. Ultimate Software Group is applicable, but not dispositive, here. In that case, a grieving mother sued an anonymous website that allowed users to post whatever they wanted, anonymously, and receive anonymous replies. Dyroff, 934 F.3d at 1094–95. Her son purchased drugs using the site and died because the drugs he purchased were laced with fentanyl. Id. at 1095. As we explained, “[s]ome of the site‘s functions, including user anonymity and grouping, facilitated illegal drug sales.” Id. at 1095. The mother sued, alleging that the site had allowed users to engage in illegal activity, that the website‘s recommendation algorithm had promoted and enabled these communications, and that defendant failed to moderate the website‘s content to eliminate these problems. Id. We concluded that
In our view, Plaintiffs’ product liability theories similarly attempt to hold YOLO liable as a publisher of third-party content, based in part on the design feature of anonymity. To be sure, our opinion in Dyroff did not rely on anonymity for its
D.
In holding that the Plaintiffs’ misrepresentation claims may proceed, we adhere to long-established circuit precedent. We must strike a delicate balance by giving effect to the intent of Congress as expressed in the statute while not expanding the statute beyond the legislature‘s expressed intent in the face of quickly advancing technology. Today‘s decision does not expand liability for internet companies or make all violations of their own terms of service into actionable claims. To the degree that such liability exists, it already existed under Barnes and Calise, and nothing we do here extends that legal exposure to new arenas.
III.
We therefore REVERSE the district court‘s grant of YOLO‘s motion to dismiss the misrepresentation claims but AFFIRM in all other respects. YOLO‘s motion to strike is GRANTED.