Ont. school boards are trying to knock down the social media giants. Do their cases stand a chance?

They were reckless and malicious, manipulating the brain neurochemistry of young students, getting them hooked on social media platforms, and, in doing so, causing widespread damage and disruption to the education system.

These are just some of the, as of yet, unproven allegations, made by four Ontario school boards in their recently filed statements of claim filed against social media giants Meta Platforms Inc., Snap Inc. and ByteDance Ltd, which operate the platforms Facebook and Instagram, Snapchat and TikTok respectively, seeking $4.5 billion in total damages.

The lawsuits, possibly the first of their kind in Canada, could take years to litigate, involve dozens of experts, thousands of documents and cost lots and lots of money.

And they may also encounter significant legal challenges. 

“I do think there are a number of hurdles they’re going to face,” said Josh Nisker, an injury malpractice lawyer based in Toronto.

Nisker, as both a parent and lawyer, said he does believe social media companies need to held accountable for their conduct.

“But having said that, I do have concerns about the viability of these claims in question, whether they will ultimately bring about the meaningful change we’re hoping for.”

Who is owed the ‘duty of care’?

According to the statements of claim, the school boards allege that these social media companies, through their “unsafe and/or addictive products” have caused the students to suffer from a slew of mental health issues, including “behavioural dysregulation, learning and attention impairments.”

This has interfered with the school boards’ ability to educate children, something required by law, and caused “substantial damages,” the statements of claim say. Damages include, according to the lawsuit, a significant drain on school board resources and personnel in having to deal with the students’ mental health issues.

“The defendants have acted in a high-handed, reckless, malicious, and reprehensible manner without due regard for the well-being of the student population and the education system,” the statements of claim say.

Duncan Embury, a partner and head of litigation at Neinstein LLP, a Toronto-based firm representing the school board, told CBC News last week the named companies are “mainly responsible” for the social media products that kids use, and share common designs or algorithms that lead to “problematic use.” 

While Embury said he believes the lawsuit is the first of its kind in Canada, hundreds of school boards in the United States, along with some states, have launched similar lawsuits against social media companies.

But Nisker said there are some areas where he believes the school boards’ case could face challenges, including the legal concept known as “duty of care”  — the avoidance of acts that could cause harm.

There are many existing duties of care that have been recognized by Canadian courts. For example, a motorist owes a duty of care to other motorists, pedestrians and cyclists, meaning, they must avoid, through their actions, inflicting harm.

But in the school boards’ lawsuits, the question is whether the social media companies owe a duty of care to the school boards, and not the students who specifically used their products and may have suffered harm.

“While I’m sure the school boards lawyers will come up with some interesting, thoughtful and creative legal arguments, personally, I’m struggling to see how the court’s going to make that connection here,” Nisker said.

Defining damages

Another legal issue is damages — quantifiable harms that individuals suffer and which are compensated in law, Nisker said.

In many cases that can be straightforward: an individual’s leg is broken after being hit by a car, and they suffer pain and suffering, lost wages and medical expenses, all related to being hit.

The party suing has to prove the damages they suffered were caused by the harms.

In the case against the social media companies, Nisker said he questions how the school boards will establish that the damages they allege were caused by social media were not caused by other factors, such as the impact of COVID-19 on students mental health, the impact of remote learning or just strained academic resources in general.

“I have no doubt that students are suffering, and I have no doubt that there have been strains on school boards and resources and on teachers,” he said.

“But the question will be, how do you quantify that? And is it caused by Facebook and TikTok and Snapchat, or is it something else?”

Proving what impact social media has on children will be at the heart of the case. The issue of teen mental illness and how it’s caused or impacted by social media was reignited recently with the release of U.S. social psychologist Jonathan Haidt’s new book: The Anxious Generation: How the Great Rewiring of Childhood Is Causing an Epidemic of Mental Illness.

Haidt argues, citing numerous studies, that the rise of “phone-based childhood” starting in the late 2000s and accelerating, when adolescents became addicted to their smartphones loaded with social media platforms, has led to an epidemic of mental health issues.

The book has sparked both support and criticism , over just how much these mental health issues are attributed to social media.

Linda Charmaraman, founder and director of the Youth Media & Wellbeing Research Lab at Massachusetts-based Wellesley College, said research has found that social media can be harmful, but not necessarily.

“It depends on when, why, and how kids and teens use it,” she wrote in an email to CBC News.

She said it’s hard to tease out the effects of social media on children because researchers can’t conduct a randomized controlled trial on this issue.

“Children’s lives are complex and many, many factors are involved that can’t be controlled for.”

She also cited the American Psychological Association health advisory of last year, to which she contributed, that found using social media is “not inherently beneficial or harmful to young people.

“In most cases, the effects of social media are dependent on adolescents’ own personal and psychological characteristics and social circumstances,” the advisory said.

Also last year, the U.S. Surgeon General sounded the alarm on social media and youth mental health, saying in an advisory that while it may offer some benefits, there are “ample indicators that social media can also pose a risk of harm to the mental health and well-being of children and adolescents.”

“We don’t have enough evidence to say it’s safe, and in fact, there is growing evidence that social media use is associated with harm to young people’s mental health,” U.S. Surgeon General Dr. Vivek Murthy said in a statement at the time of the advisory’s release.

Burden of proof

Brian Cameron, a personal injury lawyer at  Oatley Vigmond, said both sides will certainly employ lots of experts including neurocognitive scientists, neuropsychologists and pediatric neurologists.

But plaintiffs will also have the burden of proving how the social media companies intentionally get adolescents hooked on social media, he said

“It’s going to be the people who write the code,” he said. “It’s not about just a neuroccognitive reaction. [They] would have to prove, and they allege, that it was intentional. Now you get into computer coding.”

One of the biggest challenges facing the plaintiffs may have nothing to do with the law itself, but who they are challenging and the financial resources at their disposal.

“[The school board has] sued companies that collectively probably have a net worth higher than most countries,” Cameron said. 

As well, the case will stretch on for years, he predicted. 

“You start with a claim this long, the discovery process, is going to be years,” he said. “There’s different jurisdictions involved. In terms of complexity of litigation, I don’t think it gets more complex.”