An artist’s livelihood is increasingly absorbed by—even dependent upon—social media platform design. Knowing how to track trends, edit content and game the algorithms for visibility can be as necessary as it is exhausting. Unsurprisingly, many artists felt some schadenfreude when Meta and YouTube lost jury verdicts in California and New Mexico last March. But, like many things on the internet, the verdicts against the social media giants offered only an initial sense of satisfaction before more problematic realities emerged.
Supporters of the verdicts see them as long-overdue corrections. Critics see them as the beginning of a legal shift that could weaken the protections underlying online speech, moderation, privacy and the diverse digital communities that artists have built and rely upon. The question is not simply whether Meta and YouTube (which is owned by Alphabet, Google’s parent company) deserved to lose. It is whether the legal theories used against them can be separated from the systems that allow people to publish, discover and share creative work online.
In California, a jury determined that YouTube and Meta were liable for platform designs that ultimately addicted and harmed a young woman. In New Mexico, Meta was found guilty of concealing what the company knew about child exploitation taking place within its messaging features, thereby effectively enabling it. Identifying platform design as the source of harm for young users, these landmark cases focused not on what users saw, but how they saw it.
By focusing on platform design, rather than content, plaintiffs got around a legal obstacle that has protected online platforms for decades: Section 230. This legal protection kept websites from being treated as the publishers of user-generated content. If a harmful post, image or comment appears online, responsibility generally falls on the user who created it rather than the service that hosted it.
Proponents of Section 230 argue that this protection made the modern internet possible, allowing websites to host and moderate vast amounts of user speech. Under the prevailing doctrine, platforms’ ability to exercise editorial discretion (such as moderation) of user-generated content amounts to their protected speech, so they cannot face legal repercussions for curating or removing content.
Critics of Section 230, however, believe that it has become a defence that allows technology companies to avoid accountability for the harms associated with their products, shielding opaque corporate systems from scrutiny and preventing meaningful discovery for litigation.
Rather than arguing that Meta and YouTube were liable for the content on their platforms, plaintiffs in the recent cases claimed the companies were responsible for design features that shaped how users engaged with that content. They characterised tools such as autoplay, recommendations, notifications, likes and infinite scroll as product-design choices—not editorial decisions—that promoted addictive use. By framing the alleged harm as a consequence of platform design rather than user-generated content, plaintiffs ultimately avoided the significant obstacles that Section 230 often poses to such claims.
Separating content from design
Regardless of the courts’ findings, many digital rights advocates assert that the design of a platform is not inherently harmful and that whatever harm may occur is inseparable from the speech the platform distributes. Imagine a social media feed filled entirely with images of paint drying, as TechDirt founder Mike Masnick posited as an example. If the platform’s design remained exactly the same—autoplay, push notifications, infinite scroll, algorithmic recommendations—would it still be considered addictive or harmful? Masnick asserts that if the answer is no, then the source of the alleged harm is not the design itself, but the content being delivered through it—the speech.
This distinction matters because the legal theory behind these cases depended on treating design as something separate from speech. If the impact of a platform’s design depends on the speech flowing through it, then regulating the design may ultimately amount to regulating the distribution of speech. From this perspective, recommendation systems, feeds and ranking algorithms are not merely product features—they are mechanisms through which platforms organise and present expression.
Photo by Berke Citak on Unsplash
The outcome of these cases will not be the removal of all the design elements that keep us glued to our phones. Instead, it is a possible narrowing of Section 230’s protections by allowing plaintiffs to characterise decisions about how content is displayed, recommended, prioritised or removed as product-design choices rather than editorial ones. If courts accept that distinction, platforms could face liability for the ways they present user-generated content, even when the underlying content itself remains protected by Section 230. Critics warn that such a shift would invite further litigation and erode the legal boundary between platform design and editorial judgment.
The hundreds of millions of dollars that Meta and YouTube’s parent company Alphabet now owe the plaintiffs in these cases are certainly attention-grabbing. But the issue is not whether these tech giants will survive these verdicts. The issue is whether the next generation of platforms will be able to survive the lawsuits they invite. The verdict is expected to influence around 2,000 pending lawsuits from parents and school districts against social media companies across the US, many of which are already underway. (YouTube just settled one such lawsuit brought by a teen in Florida, though the plaintiff’s cases lawsuits against Meta, TikTok and Snap Inc are ongoing.)
“Creating significant liability for design choices will incentivise social media companies to stop content moderation altogether or shut down because of the enormous legal risk,” Erika Sanders, the legal counsel for the National Coalition Against Censorship, tells The Art Newspaper. The costs of litigation can reach millions of dollars even before trial, sums Meta may be willing to pay but that smaller companies could certainly not survive.
Sanders adds: “Jury verdicts like this will likely make large social media platforms less user-friendly while simultaneously driving out smaller platforms who cannot afford to bear the risk.”
Those who support the verdicts against Meta and the broader weakening of Section 230 often point to familiar analogies: cigarettes, seatbelts and other product safety regulations. But unlike seatbelts and cigarettes, social media is not a physical product that exists independently of its use—it is a medium for speech. That distinction matters because targeting product design for liability does not stop at recommendation systems. It extends into the architecture of communication itself.
In New Mexico, Meta’s end-to-end encryption was itself characterised as a harmful design choice. Encryption, however, is not a cosmetic feature of a platform’s design. It is a core privacy technology that often protects vulnerable and marginalised groups from surveillance, abuse and data breaches—including artists and activists in oppressive regimes. In the verdicts’ aftermath, Meta removed end-to-end encryption protections from its Instagram messaging services.
Dawn of a new internet?
What kind of internet results from these rulings and the precedents they set? As we demand accountability from these black-box, all-powerful platforms that curate our lives, livelihoods and even creativity, it is worth asking what disappears when platforms become legally responsible not only for what users say, but for how they help users find one another. Sanders argues that platforms facing heightened liability will become more cautious, steering away from any content that could plausibly create legal exposure. The result, she warns, may be more censorship of controversial or provocative art online and fewer digital homes for artists as smaller platforms disappear under the weight of legal risk.
Photo by camilo jimenez on Unsplash
Eric Goldman, the associate dean for research at Santa Clara University School of Law, warns that the long-term consequences may be felt most acutely by smaller creators and niche communities rather than the platforms themselves.
“I am very worried about the future ability of artists and smaller creators to express themselves online. Internet publishers already are feeling significant pressure to cater to majority interests in ways that preclude new or niche perspectives,” Goldman says. “Without strong protections for internet publishers like Section 230, the ever-increasing legal obligations being placed on internet publishers will further increase that pressure.”
It is worth noting which concerned parties were not given a voice in court during these landmark trials: activists in political regimes who rely on social media for protest and survival, people with disabilities who depend on platforms for community, marginalised groups who find support and education online, and artists whose livelihoods and audiences are built with social media.
For these communities, this is not an abstract shift. When platforms are faced with pressure and legal liability, history shows that their answer is often to over-moderate or remove protections entirely, with artistic expression among the first casualties. A platform that overcorrects may not simply remove harmful content, it may narrow visibility, restrict recommendation systems or avoid hosting anything that could plausibly generate legal exposure.
Those who cheered the verdicts in California and New Mexico, and anticipate the many more to come, are not wrong to demand accountability and responsibility from the platforms that connect us all. But those affected by these verdicts are not only the companies themselves, they also include the communities that depend on them: artists, activists, marginalised users, and audiences who rely on these systems to find one another in the first place.
