If the digital platform is responsible for the product

In the space of a few days, two verdicts from juries in New Mexico and California have reignited the debate on the role and responsibility of digital platforms. The common element that already emerges clearly in the two decisions is the shift in the centre of gravity of liability from the content to the product level.

The New Mexico jury's decision focused on the presence of addictive design and risks to minors. The central issue, therefore, is not only the impact of individual content on users, but the way the platform is designed, managed and presented to the public. The lawsuit was based on allegations of unfair commercial practices, and Meta was accused of creating an environment that systematically exposes users to significant risks, while portraying it as safe, especially for younger users. At least in part, this approach makes it possible to overcome the knot of content liability, which in the United States is severely limited by the shield provided by Section 230 of the Communications Decency Act, introduced back in 1996. It is not a matter of holding the platform liable for what users publish, and in particular for offensive content, but of checking the way the service is designed and the expectations that its configuration helps to generate in users.

The second verdict, which instead concerned Google, seems to move in a similar direction. The focus of the decision is not only on the presence of harmful content, but rather on the role of technological design in fostering addictive dynamics and prolonging the exposure of users, especially minors. The decision does not focus on the assessment of individual content, concentrating instead on the cumulative effect of structural choices - such as the adoption of recommendation systems - embedded in a business model based on continuous interaction with users.

In both cases, a structural element thus emerges: the link between technological design and economic results. The services are formally free, but are based on the collection and monetisation of data and online time. Their profitability depends on the ability to keep users constantly active and engaged. In this context, design choices are not neutral; on the contrary, they are instrumental in maximising interaction and, consequently, the economic value of the platform. This has relevant legal implications. If the product is designed to incentivise behaviour that increases the risk of exposure to harmful content or problematic interactions, the risk is no longer linked only to the presence of illicit content posted by users. Instead, the overall configuration of the service must be questioned. In this perspective, the issue of expectations is also relevant. When a platform presents itself as safe, especially for minors, it contributes to a representation that may not reflect its actual functioning. The discrepancy between representation and reality thus becomes a central element, not so much from the point of view of responsibility, but of consumer protection.

In the light of these elements, the two events take on a broader and potentially systemic scope. For years, the debate on the regulation of digital platforms has in fact developed along the axis linking freedom of expression and rules on the liability of intermediaries for illegal or harmful content. From this perspective, platforms have often been described as 'digital public squares' and the relevant legal regime has been shaped, in the United States, on the basis of the predominance of freedom of expression, protected in very broad terms by the First Amendment. More recent developments, however, suggest a change of direction: platforms are understood as complex consumer products, designed and marketed according to commercial logic. For digital services, as well as for tangible goods, the question arises whether the design incorporates risks or whether the information provided to consumer-users is adequate to enable an informed choice. In this sense, recent cases bring platforms closer to the logics of product liability.