Adults who smoke have been compensated for negative health effects of smoking, when the side effects of smoking were not fully and properly explained. An adult who doesn’t follow a safety label on a piece of heavy equipment because it is not noticeable enough can bring a lawsuit if they are injured when using that product. But what about the side effects of excessive screen time? Recent studies have reported that children can be permanently damaged by spending too much time in front of a screen, whether that is a phone, tablet or computer. There is another element, that unlike an adult- who has the capability to avoid the negative side effects of choices they freely made (at least prior to the addictive effects becoming overwhelming), a child has no such opportunity. So who is responsible for the negative effects? Are the parents or guardians liable, because they allowed their child to use a device for an extended period of time? Or are the content providers, who create programs and games that lure kids into spending hours and hours on their device? And either way, how could damages be assessed and appropriate compensation calculated?
Could a child who suffers from excessive exposure to media through a screen later sue in a tort action?
A recent study found that on average, children under 5 are spending between 2-3 hours every day in front of some sort of screen, whether that is a television, laptop, tablet, or phone. Long hours spent in front of a screen every day can lead to “poorer performance on … developmental measures.” The study recommends that parents follow guidelines on the “appropriate amount of screen exposure and discuss potential consequences of excessive screen use.” Another study also finds that children who might be more in need of parental or peer interaction, such as those in economically challenged households, are in front of screens more than average. The American Association of Pediatricians recommends that children aged 2-5 use technology no more than 1 hour per day “to allow children ample time to engage in other activities important to their health and development” since excessive screen time not only leads to developmental difficulties but obesity rates and sleep problems. However, these conclusions are not without competing hypotheses, as a recent British study found that there “is not enough evidence to confirm that screen time is in itself harmful to child health at any age.”
Could a child who suffers from excessive exposure to media through a screen later sue in a tort action? Negligent parenting has long been held to be a tortious act, and since in the eyes of some, smartphones represent an “abdication of parental responsibility,” perhaps the provision of a device and allowance of excessive time on it to a child could constitute negligence. The problem is widespread, over 47% of parents think their child is “addicted” to their screen, (while 32% of parents think they themselves are addicted as well).
What then about the liability of both device-makers and content providers who have created products which enable and potentially even lure children to spend excessive time in front of a screen? Tech companies have every incentive to maximize the time customers are using their hardware or software, but does or should that same rationale justify when applied to (non-paying) children? While “serious legal threats or class action lawsuits have not yet emerged around smartphone addiction … both Google and Apple have taken steps to address the issue.” These steps include providing parents reports on how much a device is used, limits on how long apps are open, and reminders to users to take a break from their devices.
If a tech company or parent is liable for damage to a child because of excessive screen time, how would such damage be calculated? A guide could be found in loss of consortium claims of children against those found liable for the death of the child’s parent. As an example of a 1979 case in Massachusetts, a “child has a right to recover for loss of a parent’s society and companionship through a defendant’s negligence if the child is a minor who is dependent on the parent both economically and in filial needs for closeness, guidance, and nurture.” Similarly, a portion of the parental nurturing the child would have received if not for the addictive device could be calculated.
Would a child ever bring such a claim? If the damage was great enough to any individual, the chances of a tort suit for negligent screen time allowance or against an addictive device company could be in the future.
Alex Rutgers, 25 March 2019