“This week, we’re in court with the largest consumer protection lawsuit in American history. We’ll show a jury that Meta concealed what it knew about the harm its products cause young people because looking away was more profitable” declared Russell Coleman, Kentucky’s Attorney General.

The trial began this morning in a courtroom in Oakland and is expected to last around a month and a half.

A federal conviction would crown the efforts of Rob Bonta, California’s Attorney General, and 28 of his counterparts from other states, who filed the charges three years ago.

According to them, Meta “designed and deployed harmful features on Instagram and Facebook that addict children and teens to their mental and physical detriment, all the while misleading users, their families, and the public regarding the existence and severity of these risks.”

When brains go up in smoke

Coleman himself cited, as a precedent, the historic 1998 settlement reached by the tobacco multinationals: as well as paying out 206 billion in compensation, they were subsequently forced to accept advertising restrictions, government anti-smoking campaigns and, more generally, a drastic overhaul of their business model.

However, that historic turning point on smoking would be small change compared to what may happen in Oakland between now and October.
Neither Philip Morris nor its competitors, in fact, had ever wielded a level of influence over Americans’ private lives and social choices comparable to that of Meta.

For years, more than 290 million citizens have been exposed, for several hours a day, to Instagram and Facebook features specifically designed to induce addiction, keep users glued to their screens, plunder their data and turn it into profit.

Consider ‘infinite scrolling’ (the ability to keep viewing new content endlessly and without interruption),autoplay (the automatic start of a video once the previous one has finished), push notifications (which pop up on the screen alerting the user that something has happened on Facebook or Instagram, even whilst they are doing something else) orthe recommendation algorithm (which profiles the user’s preferences to bombard them with content as closely aligned as possible with their tastes).

More than 60 per cent of young people aged between 13 and 17 have also ended up in this meat grinder, as well as a staggering 58 per cent of those aged between 9 and 12.
And it is precisely this point that the prosecutors have seized upon to bring the company’s management to trial.

The winning loophole

The United States, in fact, does not have an explicit law against digital services designed to be addictive, such as the one adopted by the European Union in 2022 (the DSA, which is causing such a stir amongst Trump and his entourage of billionaires).

The complaint, therefore, has focused specifically on the protection of children and teenagers.

Firstly, it has contested the blatant breach of the Children’s Online Privacy Protection Act, a law passed in 2000 that prohibits the collection of data from under-13s without parental consent. Data that Instagram has blithely collected, analysed and resold, without bothering to ask for permission.

The second line of attack draws on the so-called Facebook Files – the revelations of a ‘high-profile whistleblower’ published in 2021 in the Wall Street Journal. This is Frances Haugen, a close associate of Zuckerberg. Whilst insisting she spoke out to improve the company rather than to destroy it, Haugen revealed the existence of internal reports through which Meta’s management was fully aware of the harm that Facebook and Instagram were causing to minors.

The most famous example is that of the beauty filters applied to photos and videos: according to data collected by the company, one in three American teenage girls had body image issues or suffered from eating disorders due to constant exposure – for hours on end each day – to retouched and unrealistic images of female bodies appearing on Instagram.

The management knew, but chose to turn a blind eye. Just as, in the last century, cigarette manufacturers knew all about the devastating health impact of smoking, but chose to keep it secret and carry on with business as usual.

Pontius Pilategram

Ever since the Facebook Files were leaked, Meta’s defence has remained more or less the same: invoking Section 230 – the US law on editorial liability – by arguing that the platform cannot be held liable in court for content that its users have freely chosen to post.
It is as if the executives had said: “What fault is it of ours if millions of women have decided to post photos using beauty filters? We didn’t force them to do so, and we certainly couldn’t force them not to!”
Furthermore, the company has insinuated that if children and teenagers use its services, it is down to a lack of parental supervision: since privacy laws prevent the platform from carrying out any serious age verification, everything is in the hands of parents and their parenting choices.

A Pilate-like defence that has already fallen apart on several occasions, from New Mexico to Massachusetts. But one which, at least in theory, keeps the game open.

And this is precisely where the comparison with Europe becomes interesting.

“Won’t somebody please think of the children?”

It is a fact: were it not for child protection laws, the United States would have been powerless in the face of the overwhelming power of the digital giants. Even amongst adults, as we know, their products have caused addiction, increased anxiety and depression, impaired cognitive abilities, exposed women to the constant threat of sexual blackmail, and spread disinformation in critical areas such as healthcare. Furthermore, they have polarised political views and undermined the stability of democracy almost everywhere.

Yet, neither Zuckerberg nor the other Tech Bros would never have been called to account for any of this.

Only the suffering of children – perhaps the last true social taboo still standing in the age of relativism – has left a glimmer of hope for legal action.

Well then: the European Union, perhaps in the wake of the Facebook Files scandal, has instead set out in black and white in Article 34 of the DSA that any digital service whose design has “negative effects, actual or foreseeable, on civic discourse and electoral processes” is illegal, ‘on gender-based violence’, ‘on the protection of public health and children’ and ‘on the physical and mental well-being of the person’.
Any person.

It is worth noting that the DSA was adopted unanimously by the 27 Member States in the Council: a rather rare occurrence, even more surprising than the collaboration of 29 US states in the case against Meta.

Prevention is better than insult

But Europe has gone further: with the highly controversial AI Act, it has introduced a similar legal framework for AI services, at a time (2024) when the development of such services was still in its infancy.

There was no shortage of mockery from the know-it-alls: “You’re trying to regulate something that doesn’t even exist yet!” “You’re regulating it because you don’t know how to create it!”

Mistral, Chapsvision, Soofi, Loveable and thousands of other companies would likely take issue with this latest outburst. But it is the first point that is worth focusing on.

Let’s imagine for a moment what would have happened if a law such as the DSA had been passed as a preventative measure back in the 2000s, when services like Facebook were still in their infancy.
When the digital Leviathan we know today was ‘something that didn’t yet exist’.

Well, to get to court, there would have been no need to stand by helplessly whilst a mad collective experiment dragged on for more than ten years, to obtain, by a stroke of luck, the confessions of a ‘repentant’, to devise legal contortions regarding children’s privacy, and, above all, to wait for social media to begin its decline thanks to the advent of AI, finally becoming a target that could be attacked.

The amount of suffering and injustice we would have been spared, on both sides of the Atlantic, is incalculable.

Shouldn’t we actually learn from our past mistakes?

Do those who try to prevent another catastrophe like the one we experienced with social media really deserve a reaction that lies somewhere between pity and derision?