B.C. Premier David Eby says his government will explore launching a class-action lawsuit against social-media companies for the social harms they cause, but such a suit could wind through the courts for decades, legal experts say.
There is a precedent for British Columbia to take on social-media companies. B.C. was the first Canadian jurisdiction to launch lawsuits against major tobacco companies when it took them to court in 1998 over tobacco-related health costs, and later, pharmaceutical companies manufacturing and distributing opioids.
But the tobacco lawsuit, more than 20 years later, is not resolved and almost six years since the opioid lawsuit was filed, a court still hasn’t certified it as a class action.
“Such lawsuits are potentially viable,” said David Klein, a class-action lawyer who has dealt with such lawsuits for more than two decades.
“This type of litigation is likely to take many years, and possibly decades, to resolve. Governments are able to undertake this type of protracted litigation. It’s unlikely, though, that the individuals who suffered the harm will see any direct benefit for a very long time.”
All 10 provinces are currently part of the tobacco legal saga, and collectively seeking around $500-billion in damages from the tobacco companies.
After repeated court challenges aimed at halting the case, several major tobacco distributors went into creditor protection in 2019. The provinces are now in mediation with three tobacco companies – Imperial Tobacco Canada, Rothmans, Benson & Hedges Inc. and JTI Macdonald Corp. – to reach a settlement agreement. The companies will come out of creditor protection if a settlement agreement is reached, or be forced into bankruptcy if they don’t.
B.C. was also the first province to launch a lawsuit against manufacturers and distributors of opioids in 2018 and the certification is continuing. In June 2022, opioid manufacturer Purdue Pharma (Canada) agreed to a $150-million settlement with federal, provincial and territorial governments before allegations against the company could be tested in court.
Various other defendants have sought to have proceedings deferred or dismissed on procedural grounds. Last November, Sanis Health Inc., Shoppers Drug Mart Inc., Sandoz Canada Inc., and McKesson Canada Corporation applied for an order adjourning the certification proceedings pending a Supreme Court of Canada decision on the presumed inclusion of other governments in the case.
Earlier this week, the CEOs of Meta, TikTok, X and other social-media companies went before the Senate Judiciary Committee in the United States to testify in front of lawmakers and parents increasingly concerned about the effects of social media on young people’s lives. The hearing heard recorded testimony from kids and parents who said they or their children were exploited on social media. Parents who lost children to suicide silently held up pictures of their children.
“They’re responsible for many of the dangers our children face online,” Senate Majority Whip Dick Durbin, who chairs the committee, said in opening remarks. “Their design choices, their failures to adequately invest in trust and safety, their constant pursuit of engagement and profit over basic safety have all put our kids and grandkids at risk.”
Mr. Klein said British Columbia’s consideration of a lawsuit to address harms is reasonable.
“There is a body of evidence developing in the United States indicating that social-media companies have been aware of the connection between their algorithms and various forms of harm suffered by young people using those platforms.”
Mr. Eby said last week that to enable a class-action lawsuit against social-media companies, his government would introduce legislation to allow B.C. to use “population-level data” to pursue compensation.
Data related to anxiety, eating disorders, and injuries stemming from risky stunts, could be used against these companies if a clear link can be established between these behaviours to the companies’ “negligent algorithm design” and the presentation of extreme content.
“That is how the tobacco litigation worked. That’s how the opioid litigation worked, and that is the design of this law,” Mr. Eby said.
“What it does do is to connect the circle between the decision by the company not to address the harm they know they are causing – their own internal research tells them they’re causing to kids – with the costs that are incurred at a financial level by the province of British Columbia to clean up the mess that they leave behind.”
The province has said funds reclaimed through litigation against the companies could be allocated for treatment and counselling initiatives, as well as the support of monitoring systems and educational programs addressing the harms of social media.
YouTube owner Alphabet Inc. and Meta Platforms Inc., which operates Facebook and Instagram, did not respond to multiple requests for comment.
When asked about B.C.’s plans regarding the potential social-media class action, Attorney-General Niki Sharma said she was optimistic the lawsuit would succeed.
“I think the case law will develop. I think our ability to push at corporate actors that have done wrong to people, I think, will get better.”
Rob Cunningham, senior policy analyst with the Canadian Cancer Society, said despite the long-running litigation in the tobacco case, holding the companies that have caused such widespread harms to account is important.
“There’s a positive outcome that is achievable. We’re not there yet. But if provinces negotiate, you know, public-health measures as a priority, then it has the potential to be a very good outcome,” he said.
Mr. Klein agreed.
“Yes, it’s worth it. There is more at stake than just money. If filing and pursuing a lawsuit can achieve behaviour modification, the societal benefits could be substantial.”
With a report from Associated Press