The Facebook Fileshave lifted the veil on the impact of social media on mental health, sparking a “litigation fever” against the industry giants. How will Portuguese law respond to algorithmic liability?

Digital Age and the original sin: algorithmic liability

Almost 20 years ago, the arrival of 3G ushered in the beginning of the end of "innocence" of our Digital Age.

With the globalisation of access to technologies and a fast and affordable internet, social networks and online platforms "in the palm of your hand", the ever-growing risks to users and their assets have tarnished the original "purity" of the algorithm in the Digital Age: damages caused by decisions "made" by artificial intelligence ("AI") in the circulation of automated vehicles, in the provision of medical care, and in the granting of credit, damages caused to holders of intellectual property rights by the sharing of protected content by online service providers, damages caused by the use of protected third-party computer programs, etc.

All these cases of "algorithmic liability" present theoretical and practical difficulties in conceptualising the accountability of potential offenders, but yet another case has been stirring legal debates.

"Addiction by Design": personal damages by addiction to social media

 What is it?

It is now widely understood that the algorithms of social networks such as Instagram, YouTube or TikTokare designed to "overpower" the user's will, forcing the user to consume addictively. This compelling force is notably reflected in the way feedsare presented and the stimulus notifications have on FOMO ("fear of missing out"), in a social scenario where online presence is seen as a sine qua non of digital citizenship.

Academia is currently analysing the algorithmic phenomenon of "addiction by design" and validating the psychometric models for diagnosing addiction to social networks, which commonly translates into anxiety, attention deficit, eating and sleeping disorders, and depression. The statistics are impressive: a recent study carried out by Dove,with the support of Mental Health Europe, concluded that 86% of Portuguese youth admit to being addicted to social media, recognising their suffering and anxiety when deprived of its use.

How did it come about and what are the risks?

In September 2021, The Wall Street Journalpublished internal studies by Facebook (currently Meta) documenting the harmful effects of the use of its social networks on users’ mental health ("The Facebook Files"). User backlash did not take long to appear: US courts were flooded with class actionsbrought against the industry giants, claiming astronomical levels of compensation for personal damages to users, with an estimated 350 lawsuits pending by the end of 2023.

No decisions have yet been issued in the context of those proceedings and their actual social and economic impacts are currently unforeseeable, but if we consider the extensive media coverage of the lawsuits, the recent Cambridge Analyticascandal and recent rulings in favour of the injured parties in jurisdictions such as the United Kingdom, it is safe to say that the giants of the sector face considerable risks. These risks boil down to the assertion of a hypothetical:

(i)             Framing of the fact – algorithmic programming – as a type of illegality,

(ii)           Confirmation of the legal relevance of personal damages in the form of addiction to social media,

(iii)         Demonstration of "corporate fault" in algorithmic programming,

(iv)         Construction and temporal delimitation of the causality link between the fact and the damage, and

(v)           Establishment of a method for calculating compensation,

which would be tantamount to definitively affirming the unlawfulness of an algorithm used by social networks worldwide. In addition to the obvious reputational risk, any such decision in favour of the injured parties will have a predictable spill-overeffect to other legal systems.

How would Portuguese courts rule?

Predicting such a complex court ruling with these economic and social impacts will always amount to fortune-telling. However, it seems undeniable that compensation for this type of damages in Portugal (which would, in principle, have jurisdiction and apply Portuguese law) raises a number of issues:

(i)             Dubious nature of civil liability à Is this a case of culpa in contrahendo, for omission of special duties prior to the acceptance of the terms of use of the social network? Is it a case of contractual liability, for failure to comply with the duties assumed in the terms of use of the social network? Or is it a case of non-contractual liability, e.g., for violation of absolute rights? These questions reveal a high degree of uncertainty as to the legal protection of such damages.

(ii)           Freedom vs. liability à As a rule, damages are borne in full by the owner of the damaged property (casum sentit dominus), with third parties only being held liable on an exception basis. People are free to use social media, to a greater or lesser extent, and are liable for their actions when they are of age and capable. If the vast majority of users do not suffer psychological damage as a result of their social media use, it may seem excessive to hold algorithm creators liable for sporadic effects.

(iii)         "Quantum" of compensation à Moral damage, however unquantifiable it may be for compensation purposes, usually begins at a given point in time, which corresponds to when the damage occurred (e.g.,workplace accident). But at which point does a social media addiction begin? How does one draw the line between anxiety damage, attention deficit damage and depression damage? The synthesis between the clinical criterion and the legal criterion in these cases has yet to be defined.

(iv)         Liability of AI à The shift from the proposal of objective liability of "high-risk" AI systems (which, from the outset, would not include social media algorithms) in the Proposal for a Regulation annexed to the European Parliament Resolution of 20 October 2020 to a presumption of causality in the Proposal for a Directive of the European Parliament and of the Council of 28 September  would suggest yet another shift – away from algorithmic liability for the time being.

In short...

Addiction to social media may be a scientific fact; however, its transposition into national law as a form of personal damage is extremely complex. For the time being, the spotlight remains on the other side of the Atlantic, but the shock waves will soon shake Portuguese liability law, meaning all playersmust be prepared.

VdA is especially dedicated to technological matters and has launched a platform – VdA Tech Hub – to assist all entities, from all sectors of activity, to address digital challenges. Mirroring a new manner of providing legal services, VdA provides to our clients, through VdA Tech Hub, the advice and counseling necessary to deal with the challenges arising from the digital transition.

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