Will This Trial Break Social Media Forever?

Video Transcript

Ray Hrdlicka – Host – Attorneys.Media

Hi, this is Ray Hrdlicka, host of Attorneys.Media Legal Commentary Interview. Today, we have an “In The News” segment with Steven Gacovino, a personal injury and social media youth harm attorney in New York, in Long Island, New York, specifically.

We have Steven on today to talk about — it’s a big week, and it’s a big year, actually — about social media youth harm because there is a trial starting this week in Los Angeles against Meta and Instagram. And we’re gonna have, of course, the executives testifying, and we’re gonna talk about this trial and how it can possibly change, as some of the news reports have said, change not just social media, but the internet in and of itself. So Steve, welcome to the program today and let’s get right into it. You must be excited because this is what you do, you’re involved with this, you’re actually, you know, the attorney of record of lawsuits on some of these issues. Give us your feeling about what’s happening.

Steven Gacovino – Personal Injury Attorney – Suffolk County (Long Island), New York

Ray, thank you for having me on, of course, and I love talking about this with you. So yes, it is a big week. It is a big trial. It’s an important trial. And as you said, Meta is one of the defendants that’s on the case, along with Alphabet or Google, you know, through their YouTube, which also has algorithms. So those are the two remaining defendants. This case had started with including TikTok and Snap. Those two entities have settled before trial, which I think is an important sign, a good indication as to how they felt this was going to come out.

Ray Hrdlicka – Host – Attorneys.Media

Now that you’ve brought that up, let’s segue just a little bit into that, and talk about, before we get into Meta, let’s talk about what happens when you settle a case of this magnitude. I mean, what is, as a plaintiff, what are you looking for? What do you expect to get out of it? You know, of course, I suspect it’s money, but is there anything else? Is there any changes that occur?

Steven Gacovino – Personal Injury Attorney – Suffolk County (Long Island), New York

Well, understand that those two settlements, one from Snap and one from TikTok, pertain only to this one single plaintiff, this one individual. So I’m not talking about it on the broad base, but to answer your question, what does that person expect out of it? And I’m sure that whatever settlement exists is completely confidential. So I won’t know what kind of numbers we’re talking about, but clearly we know that they put up money to get out of this case. They may have had a business reason to do it. They may have felt that they were exposed. It may lead to a broader-based discussion with regard to the other thousands and thousands of individuals that have filed similar cases. But for right now, those would be inferences. We would have to say, well, maybe it’ll lead to that discussion. For right now, we know that they wanted to get out of this one individual case.

So now that has left two defendants. Again, we have Google, or as they’re known corporately as Alphabet, and we have Meta, which is Instagram and Facebook. So the trial has begun. A jury has been selected. Testimony has begun. In fact, I think today, February 18th, the day that you’re doing this interview, is the date that Mark Zuckerberg is slotted to testify if testimony goes forward today. I know there was a slight interruption yesterday. It was a sick juror and they wanted to wait until that juror was healthy enough to come back. So it created a one day delay. But today we do expect that Mark Zuckerberg is going to testify.

I wish I was there. I wish there was some sort of a broadcast because I would imagine that this testimony is going to be quite compelling when he’s confronted with questions about the harm that’s been caused, knowing what’s been caused, the entity that he’s created and the algorithms that get more powerful day after day after day, often pushing harmful content at young people.

Ray Hrdlicka – Host – Attorneys.Media

Well, this entire situation of social media youth harm has been compared to the decades-long litigation and fight against the cigarette companies, back in the ’50s, ’60s, ’70s, and it’s gone on for decades. If I look at that, the end result of that, they didn’t stop the cigarette companies. What they did stop was advertising on TV. And, well, I think that’s about it. They just stopped advertising on TV, ’cause you walk into any convenience store, it’s still all over the place.

Steven Gacovino – Personal Injury Attorney – Suffolk County (Long Island), New York

It has changed the way the cigarette companies can do business, though. Not just with respect to the advertising that you’re talking about on television — that was something that, if you go back in time, was kind of negotiated away or looked to be voluntary at some level. But Ray, I know that we grew up in an era of print media. So we saw magazines — on the back of every sports magazine that you would see, on the back of every Time magazine that you would see, People magazine intermingled in every page — you would see a cigarette ad, and they were full page elaborate ads, usually with some sort of an incentive or a bargain or a coupon that came along with it. So we don’t see that anymore. We used to see them advertised with NASCAR, right? Some of these cigarette companies would be the sponsors with respect to NASCAR and other sporting events. You would see it on billboards, in the back of a stadium, a big Marlboro sign, or a Salem or Winston sign.

So we’ve seen differences in the way that they’ve had to do business. And it did profoundly affect — I mean, in combination, I think, with the education of young people and smoking maybe falling out of fashion — but smoking had gone down considerably when they had to stop advertising or lost the ability to advertise in the traditional ways that they did. Of course, they tried an end around with Juul and vape entities to try to get people back into it. And they are having some success in getting young people, again, addicted to nicotine. That’s maybe a different topic for a different day because you wanted to use this as a comparison.

Ray Hrdlicka – Host – Attorneys.Media

Well, I think you’ve got a bigger fight here with social media companies. One, I think they’re obviously more money — they have more money and more power. But when you look at the percentage of kids, going back, children under 18, that were utilizing and smoking cigarettes back then, the percentage as a whole was much less than the percentage of children who engage in social media today. I mean, you’re probably in the 90s, easy, maybe if not real close to 100% of all those kids engaging in some way, shape or form with social media via their electronic devices. So you’ve got a bigger issue here than — you know, that old phrase, grabbing a tiger by the tail. It’s a lot bigger tiger this time.

Steven Gacovino – Personal Injury Attorney – Suffolk County (Long Island), New York

Yeah. And I think that similarly, the hope is that they’ll have to do business in a different way. Maybe, you know, maybe it’s in terms of warnings. We don’t know what the outcome is going to be, but maybe in terms of warnings, maybe in terms of not operating the algorithm in the same exact way, or maybe some sort of break or something when it’s identified that negative content is being pushed to one particular individual. Maybe there could be some sort of automatic shutoff where it can’t last that long. I don’t know what the right outcome is in terms of fixing it, but there needs to be a fix.

I know that it’s not going to go away. I know that social media is a part of our life. And as families, as parents, as adults, we have to not only set a good example for younger people as to how we interact with social media — because make no mistake, this is not just a harm for young people. I see plenty of adults that indulge social media way too much. And I think that it has an addictive effect on older people as well. And I think that modeling of behavior is certainly picked up by youth.

As far as how things can change — look, I think that as adults, we do have to educate people as to the dangers of it. We have to educate young people as to what it is that’s out there and what social media is attempting to have them do, which is to stay engaged all the time. That’s the end game of what they want. Keep them engaged all the time. So the more that they’re aware of it, the more that they have the tools then to battle back. So that’s our responsibility as just ordinary people and ordinary citizens, ordinary parents, ordinary adults.

The education system has to teach them how to use social media safely. I think that needs to be part of a curriculum because it’s here. We can’t run away from it. They have to know how to interact and coexist with it. And as far as the company is concerned, accountability is the main thing. And that’s what this litigation is all about, holding them accountable. How do we hold accountability through lawsuits? What do lawsuits result in? It results in financial pain, and that’s what they fear the most.

Ray Hrdlicka – Host – Attorneys.Media

That’s interesting because I would agree with you that they fear that the most. But it’s not a company or a business ending situation. It’s just a bad — at least I’m looking at it from, you know, an outsider looking in — I would think they’re looking at how bad it’s going to hit my stock price, you know, and what’s going to happen. But to obviously all the plaintiffs, it’s a whole different animal.

Next week in New Mexico, there is another trial against social media companies that are starting, except it’s a little bit different because now they’re talking — not necessarily about the product itself, the addictive tendencies, the algorithms, et cetera, et cetera. What that lawsuit is, is that they failed to restrict sexual exploitation of children. And now it’s about content. And as a lawyer, I mean, those are very different lawsuits.  I mean, what do you expect?

Steven Gacovino – Personal Injury Attorney – Suffolk County (Long Island), New York

There sure are. You know, and look, it may be defensible in a different way. The whole principle of Section 230, right, was that the platform itself is not going to be held liable for harm caused by the content. It’s the reason why the case in Los Angeles, the first one that we were talking about, is different. It’s because we’re talking about the underlying product that allows this algorithm to exist. It’s how, in other words, it’s how Instagram is using the content. They’re really making it their own for all intents and purposes, for their own engagement and their own financial gain.

This one, I would agree, is somewhat different. It’s hard to speak to it as I don’t know the particulars of the case. So I don’t want to make any sweeping or broad statements, but yes, I think that when you’re talking about the content, an individual piece of content itself causing harm, you know, what is their responsibility to regulate that and to keep young people safe? I would still say that they have a pretty high responsibility to keep people safe. And I look forward to seeing what the outcome is to that particular case. And you’re right, it is different.

Ray Hrdlicka – Host – Attorneys.Media

Yeah, in June of this year — you touched on this earlier when you brought up education — in June of this year, the federal trial. Everything we’ve been talking about to this point are all state courts, state trials. In June, the federal trial, and that’s the first one. I want to make sure everybody who’s watching this understands this trial that we’re talking about in Los Angeles. It is the first trial of its kind on these issues that has reached trial, of course. You know, TikTok settled and Snapchat settled on this particular plaintiff. But it’s the first case that’s gone to trial. State court. June, federal court. There’s, what, 2,000 plaintiffs on this? The interesting thing about that case — and I think you’re involved with some of that, peripherally or directly, please explain on that one too — is that it is brought by the education, the school districts. And so that’s a whole different animal from a perspective from that plaintiff.

Steven Gacovino – Personal Injury Attorney – Suffolk County (Long Island), New York

Yes. The theory on those cases is that social media has created a public nuisance. That’s actually a legal term, public nuisance, but this municipal entity, a school district, has wound up having their mission interfered with, their educational mission interfered with, because now they have to come up with policies and procedures and safeguards to keep young people, students, off of social media while they’re in class. And they have to educate them about the dangers of social media. It’s added an extra charge to them. Where should that come from? The theory is that, look, you’re causing us economic harm. You’re causing us to put out money, to expend our resources, to counteract everything that you’re doing. And as a result, you need to pay for it. So that’s a very general broad brush of what a public nuisance case is all about. But that’s the underpinnings of that particular case that you’re about to see happen in the federal court in June.

Ray Hrdlicka – Host – Attorneys.Media

Well, you use broad brushes, as you say. However, I would suspect the vast majority of the people don’t have any idea what these cases are about. They just know they’re lawsuits. They’re lawsuits against social media companies. What’s the purpose? And I think that education to get the public behind the plaintiffs, whoever they may be, is an important aspect. You know, not just saying, well, it’s another lawsuit against big corporate entities. I think you need that support.

Steven Gacovino – Personal Injury Attorney – Suffolk County (Long Island), New York

Well, I think you’re starting to see — if you were to just turn directly to the court of public opinion, putting aside any individual case, I think most of us have a feeling of there’s something wrong, right? There’s something wrong with social media. There’s something wrong with the frequent use of a virtual world. There’s something wrong with the way people are interacting with one another. There’s something wrong with the fact that everybody has their own individual realities and their own separate realities, and that we’ve kind of lost having those common experiences together, and it’s leading further and further to that.

I am starting to see activities and movements to try to get people off of social media, especially young people off of social media and learning to re-engage with one another. So I do see stuff happening and certainly it’s affected schools. More schools and states are banning cell phone use, you know, during school hours, just forbidding cell phones to be there. I think that should have always been that way, but better late than never. So they’re showing up and most states have taken the position that there should be no more cell phones in schools. I think that we’re starting to see progress in that direction. Hopefully we’ll continue to move the wave back, just with better understanding and better education of what they’re doing here.

But accountability, accountability, accountability. These lawsuits are important. It’s the only way that we’ll see any change in these social media companies.

Ray Hrdlicka – Host – Attorneys.Media

Well, speaking of accountability, when you begin to think about this, who’s going to take those steps? If steps are agreed upon in the first place, who is going to take those steps? Who’s going to monitor the success of those steps? And, you know, obviously, what are the ramifications? You know, I’m playing devil’s advocate here. I can see lawsuits on that aspect in the future.

Steven Gacovino – Personal Injury Attorney – Suffolk County (Long Island), New York

Let’s — I think that that’s a better problem to have than what we’ve had before. Okay, I agree with you. So, and look, I think that we have to look at it as one step at a time. We know that we have a problem in front of us. I think society knows that we have a problem in front of us. But more importantly, I think that plaintiffs are understanding that they have a problem, or parents of young people are seeing it happen right in front of their eyes, where they’re seeing children with anxiety, depression. They’re harming themselves. They’re suffering from eating disorders. There’s attempted suicides. There’s hospitalizations for mental illness, all on the rise and coinciding with the rise of social media. This is not fake.

Ray Hrdlicka – Host – Attorneys.Media

Yeah. You know, you’ve just mentioned a whole bunch of horrific situations with youth that are involved and caused by social media. I can see, you talk to other people, what’s the harm of social media? I use it, everybody uses it. And so the education that social media is akin to an addiction to drugs, pharmaceutical drugs, alcohol — it is an addiction. I mean, would we get to a medical classification that that could be an addiction? I mean, is that, would that help this movement?

Steven Gacovino – Personal Injury Attorney – Suffolk County (Long Island), New York

We’re not there yet. You know, there’s no code for social media addiction, but we’ve seen it in plaintiffs’ interactions with therapists and counselors where they’ve noted that this person is addicted. I’ve spoken to healthcare professionals that say, no, this is a real thing and this really is an addiction. Internal documents at Instagram call it an addiction. So this is not something that — again, it’s not being made up. We’re seeing it unfold before our eyes. Would it help if there was a medical diagnosis of social media addiction available as some sort of a medical code? Of course it would. We’re not there yet. I don’t know if we’ll get there, but certainly, if we’re proving negligence, if we’re proving misleading behavior, if we’re proving defective products that lead to harm to individuals, that’s where we — that’s the only place where we could start off in the courtroom. And we certainly need medicine and studies behind us. And more and more we’re starting to find that right data. And a lot of the documents in-house that Meta had, I think, would be quite troubling for them and helpful to these cases.

Ray Hrdlicka – Host – Attorneys.Media

Well, it’s going to be coming out. I apologize for interrupting. It’s going to be coming out in Discovery.

Steven Gacovino – Personal Injury Attorney – Suffolk County (Long Island), New York

Yep. Yep. Well, we’ve seen a lot of it already.

Ray Hrdlicka – Host – Attorneys.Media

Oh, okay. Wow.  Well, this week, next week, this year is going to be a very interesting time for this type of law. So we’re going to have you back on again. We really appreciate it, Steven. Look forward to having you. Thank you for appearing today.

Steven Gacovino – Personal Injury Attorney – Suffolk County (Long Island), New York

Okay, thank you for having me.

Ray Hrdlicka – Host – Attorneys.Media

Thanks.