Written by Brook Schaaf

Lawyers for 20-year-old plaintiff K.G.M. have rested in “what may become the most consequential legal challenge Big Tech has ever faced,” according to Professor Carolina Rossini. This is not about the content but about the very design of the systems, whose makers are accused of deliberately engineering features addictive to children and teenagers. This alleged addiction, analogous to how cigarettes were engineered and marketed, is, of course, harmful: there to the body, here to the mind, both imposing deleterious costs on society at large.

TikTok and Snapchat settled for undisclosed sums, leaving Meta and Google as the remaining defendants, though news coverage has focused heavily on Meta, which faces significant adverse allegations. 

As many commenters have observed, “Big Tech is having its Big Tobacco moment.” Indeed, the parallels in the defense’s arguments are striking. Both Big Tobacco and Big Tech have both basically said, “Use of our products is a pleasurable, voluntary idea and that if it’s deemed undesirable by a person and not science because the research is inconclusive nevermind that it was ended when results looked unfavorable but anyway it should be the child or parent’s responsibility (whatever happened to society and accountability?!) or maybe the government—just give us some rules and we’ll totally follow them.” Or, as Instagram head Adam Mosseri argued, it’s not “clinically addictive.” 

For my money, I think we’re soon to discover that, like email “spam,” whose meaning broadened to “unwanted content” or even “slop,” the definition of “clinical” may prove somewhat flexible. For as actively as they are used, social media companies are widely disfavored, and people often speak with regret for all the time they spend on their phones, much as they might after eating junk food. The world over, there are countless case studies of schools banning phones, whereafter students’ sense of well-being and test scores improve. In this environment, it seems unlikely Big Tech will prevail, even if it ought to on the merits, though the evidence really seems to weigh against it.

Setting aside what appears to be indefensible behavior, what does this mean for affiliate marketers? It seems to me the answer is unclear. On the one hand, the walled gardens are fertile soil for creators, who often monetize through affiliate relationships. On the other hand, walled gardens threaten the open web by absorbing time and most advertising dollars, now more than ever before, with LLM-driven content extraction. One also wonders if doomscroll fatigue isn’t also bad for non-impulsive commerce. 

My guess is that the jury returns a guilty verdict, which will serve as precedent for thousands of other current cases and tens of thousands of future cases, leading to some sort of legislation or regulation. 

You may call me cynical, but it seems to me most likely that government officials will plump these companies for cash in exchange for regulatory protection, i.e., enough regulation to say they did something about the problem while allowing the behaviors to continue in exchange for some form of tax. The EU already regularly uses Meta and Google as a piggy bank for privacy-related violations. 

If it does go this direction and the platforms continue to hook the next generation, then a growing segment of affiliate marketing will find itself dependent on these platforms for distribution because open-web traffic is no longer sufficient. 

One might even call it an addiction.

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