A US appeals court revived a lawsuit against TikTok by the mother of a 10-year-old girl who died after taking part in a viral “blackout challenge” in which users of the social media platform were dared to choke themselves until they passed out.
Social media companies are typically shielded from lawsuits concerning content by federal law, since the content is created by third-party users.
But the Philadelphia-based 3rd US Circuit Court of Appeals ruled on Tuesday that the law does not stop Nylah Anderson’s mother from pursuing claims against TikTok and its Chinese-owned parent company ByteDance since its algorithm recommended the challenge to her.
US Circuit Judge Patty Shwartz, writing for the three-judge panel, said that Section 230 of the Communications Decency Act of 1996 only immunizes information provided by third parties and not recommendations TikTok itself made via an algorithm underlying its platform.
She acknowledged the decision was a departure from past court rulings by her court and others holding that Section 230 immunizes an online platform from liability for failing to prevent users from transmitting harmful messages to others.
But she pointed to a US Supreme Court ruling in July that deemed algorithms represent “editorial judgments” made by companies to compile “the third-party speech it wants in the way it wants.”
Schwartz said companies’ tailored algorithms mirror speech, and their speech is not protected by Section 230.
“TikTok makes choices about the content recommended and promoted to specific users, and by doing so, is engaged in its own first-party speech,” Schwartz wrote.
Nylah was rushed to the hospital in December 2021 after mimicking a blackout challenge she saw online.
She used a purse strap from her mother’s closet and suffered severe injuries.
Nylah was in the intensive care unit for days before she died.
The lawsuit by Tawainna Anderson was originally dismissed by a lower court judge who cited Section 230 in October 2022.
“Big Tech just lost its ‘get-out-of-jail-free card,’” Jeffrey Goodman, the mother’s lawyer, said in a statement.
The decision could mean tech companies may face more lawsuits in the future over the content recommended by their algorithms.
US Circuit Judge Paul Matey, in a opinion partially concurring with Tuesday’s ruling, said TikTok in its “pursuit of profits above all other values” may choose to serve children content emphasizing “the basest tastes” and “lowest virtues.”
With Post wires
