In brief
- The recent US decision holding social media companies liable for designing platforms that are harmful to young people has drawn comparisons with the "Big Tobacco" litigation of the 1990s.
- The substantive foundation for claims in England and Wales is strengthening. The Online Safety Act 2023 imposes design-based duties on platforms, and the scientific evidence base continues to grow. However, significant procedural and funding barriers remain. As the failed UK tobacco litigation demonstrated, substantive merit alone is not enough.
- The Law Commission has now been asked by the Government to consider whether a consumer class actions regime should be introduced in England and Wales, representing the first tentative step towards addressing those barriers.
On 25 March 2026, a Los Angeles jury found Meta and YouTube negligent for designing social media platforms that are harmful to young people, delivering a $6 million verdict in what will serve as an important test case for thousands of similar claims.
The claimant, known by her initials KGM, testified that she became addicted to social media as a child and that this exacerbated her mental health struggles. Rather than relying on the platforms' content, her claim targeted specific design features she alleged were engineered to maximise user engagement, including infinite scrolling, autoplay and push notifications. The jury agreed that the defendants were negligent in that design. Further, although the defendants contended that KGM's mental health struggles should in fact be attributed to her homelife, the jury were satisfied that the defendants' negligence met the applicable "substantial factor" test under Californian law.
The jury apportioned 70 per cent of liability to Meta and 30 per cent to YouTube. Snap and TikTok, also named as defendants, settled before trial on undisclosed terms; itself a significant indicator of how those defendants assessed their litigation risk. The dollar amounts may be modest for companies of this scale, but with thousands of pending claims and total damages potentially reaching tens of billions of dollars, the liability exposure is industry wide.
While the verdict arises from US litigation, its implications extend well beyond that jurisdiction. The comparison with the "Big Tobacco" litigation of the 1990s is instructive, but as the UK experience with tobacco claims demonstrated, the question is not simply whether the substantive case can be made, but whether the procedural and funding framework exists to sustain it, and whether potential reform can bridge that gap in time.
The "Big Tobacco" parallel
For many years attempts to hold tobacco companies liable for the addictive and carcinogenic properties of their products were largely unsuccessful, with courts rejecting individual claims on causation grounds. That landscape shifted decisively in the mid-1990s, when leaked internal documents revealed that manufacturers had long known of the issues while publicly denying them. The resulting wave of US litigation, led by individual state attorneys general, culminated in the 1998 Master Settlement Agreement, under which the four largest manufacturers committed to payments estimated at over $200 billion.
Like tobacco companies, social media firms are alleged to have built business models around dependency, denied mounting evidence of harm, and resisted safeguards. In both instances, and notwithstanding arguments on causation, claimants successfully relied on internal documents to show that the defendants knew more about the harmful potential of their products than they publicly acknowledged.
However, it is also worth remembering that UK litigants were less successful in replicating the US tobacco litigation in this jurisdiction. In the late 1990s, 53 claimants with lung cancer brought proceedings against two major British tobacco companies but the litigation collapsed after a number of claims were barred on limitation grounds and judicial comments that the prospects of success for even the timely claims were "by no means self evident."
Arguably a significant reason for the failure of the UK litigation was structural. While the US claims were brought by states seeking recovery of the costs of treating smoking-related illness from public health budgets, in the UK the Department of Health took the view that recovering NHS costs from tobacco manufacturers was outside health authorities' statutory powers. Without institutional claimants, litigation had to be brought by individuals against defendants with vastly superior resources to mount a prolonged defence. In addition, the UK lacked the contingency fee arrangements and third-party litigation funding infrastructure that sustained the US claims. It was regulatory change rather than litigation that became the primary mechanism of accountability here.
The substantive position in England and Wales
Recent regulatory developments, including the implementation of the Online Safety Act 2023 and evolving political will, have strengthened the substantive foundation for claims against social media platforms in England and Wales. While the Act does not itself create a private right of action, the statutory duties it imposes on platforms reflect a similar focus on design-based harm. A platform's compliance or non-compliance with those duties could constitute relevant evidence in establishing the standard of care in future negligence claims, and a failure to discharge statutory obligations may support an argument that the defendant fell below the standard reasonably to be expected. The growing body of scientific evidence further strengthens the causation case with each passing year.
However, significant uncertainty remains as to how causation would be assessed in this jurisdiction, where the stricter "but for" test applies, subject to the material contribution exception in cases involving multiple cumulative causes. Even on the substantive merits, therefore, the position is far from straightforward.
Procedural barriers
In practice, however, just as in the Big Tobacco litigation, it is the procedural framework that poses the greatest challenge for claimants in England and Wales:
- The opt-out class action model familiar from US litigation has no general equivalent in this jurisdiction; it is available only in respect of competition law claims pursuant to the Competition Act 1998 (as amended by the Consumer Rights Act 2015). However, on 20 April 2026, the Law Commission announced that it has been asked by the Government to assess whether a consumer class actions regime should be introduced in England and Wales. The terms of reference expressly identify the objective of improving consumers' access to redress. Work on the project is not expected to begin until autumn 2026, and a consultation paper will follow the initial scoping exercise. In the meantime, the Law Commission has published an Initial Scoping Questionnaire, with responses invited by 30 October 2026, to inform the direction of the project from the outset.
- The representative action procedure under CPR 19.8 offers a potential alternative, but its utility is severely limited by the requirement that all represented parties share the "same interest." The Supreme Court's decision in Lloyd v Google LLC (2021) confirmed that representative claims for damages will not be permitted where loss must be individually assessed, though it left open the possibility of representative proceedings for declaratory relief where a common methodology for quantifying damages can subsequently be applied.
- Group litigation orders, governed by CPR 19.21, remain available in theory, but their viability depends on securing external funding, and litigation funders have shown reluctance to back claims in which individual recoveries are difficult to predict. Claimants would also face the burden of demonstrating that their claims raise sufficiently "common or related issues of fact or law" to justify collective treatment, rather than simply arising from analogous circumstances.
- It remains to be seen whether the Law Commission's review will address the funding infrastructure that would be necessary to sustain any new class action regime, or whether that question will require separate consideration. As the failed tobacco litigation demonstrated, procedural reform without adequate funding mechanisms may prove insufficient.
- A further obstacle lies in establishing jurisdiction: the principal technology companies are not domiciled in the United Kingdom, and claimants would therefore need to satisfy the requirements for service out of the jurisdiction under CPR Practice Direction 6B, introducing additional expense and procedural complexity at the earliest stage of proceedings.
The result is a striking asymmetry between the potential strength of the substantive case and the procedural means by which it can be advanced in England and Wales. Legislative intervention, whether through expanding the opt-out collective action regime or reforming the representative action procedure to permit bifurcation of liability and quantum, has long appeared necessary. The Law Commission's project represents the first formal step in that direction, though the timeline from scoping exercise to any legislative implementation will inevitably be measured in years.
Conclusion: a turning point, or the beginning of one?
The California verdict may only be the first of three test cases in the US, with further trials and years of appeals ahead, but its significance should not be understated. For the first time, a jury has held major technology companies liable for the deliberate design of addictive platforms. That finding will not be easily undone, even if subsequent trials or appellate courts reach different conclusions on the facts.
Regardless of the appellate outcome, the pre-trial settlements by Snap and TikTok, combined with mounting regulatory pressure across multiple jurisdictions, suggest that the industry's litigation risk calculus has already materially changed. The scale of legal exposure, with thousands of pending claims and potential liability reaching tens of billions of dollars, creates significant commercial pressure to revisit the design features at issue: infinite scrolling, autoplay, push notifications, and the algorithmic amplification of harmful content to young users. If the verdict is upheld and replicated in subsequent trials, that pressure will only intensify.
For claimants in England and Wales, the substantive case is getting stronger, but as the failed UK tobacco litigation of the 1990s demonstrated, substantive merit alone is not enough. The procedural framework has long been the missing piece and the Law Commission's recent announcement is therefore a genuinely encouraging development.
It would, of course, be premature to overstate the significance of what remains an initial scoping exercise, with legislative implementation (if reform is ultimately recommended) likely years away. Nevertheless, the fact that Government has formally acknowledged the potential inadequacy of existing consumer enforcement mechanisms and commissioned an independent review of whether a class action regime is warranted represents a meaningful shift in political will.
The pace of reform is also key. The Online Safety Act 2023 is already imposing design-based duties on platforms, the scientific evidence base is growing, and the US litigation is generating disclosure that may be deployed in other jurisdictions. However, if a viable collective action regime is not in place by the time those elements converge, the window for effective litigation may narrow, and regulation will once again become the primary, and perhaps the only, mechanism of accountability.