08/28/2024 – 13:14
A US appeals court has revived a lawsuit against TikTok brought by the mother of a 10-year-old girl who died after participating in a “blackout challenge” in which users of the social media platform were encouraged to choke themselves until they passed out.
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While federal law typically shields internet companies from lawsuits over content posted by users, the Philadelphia-based 3rd U.S. Circuit Court of Appeals ruled Tuesday that the law does not prevent Nylah Anderson’s mother from seeking legal action against the TikTok algorithm that recommended the challenge to her daughter.
Judge Patty Shwartz, writing for the three-judge panel, said Section 230 of the 1996 Communications Decency Act grants immunity only to information provided by third parties, not to recommendations made by TikTok itself through an algorithm underlying its platform.
She acknowledged that the decision differed from previous rulings by her court and others that have held that Section 230 shields an online platform from liability for failing to prevent users from transmitting harmful messages to others.
Shwartz said that reasoning no longer holds water, following a U.S. Supreme Court ruling in July on whether state laws designed to limit the power of social media platforms to restrict content deemed objectionable violate free speech rights.
In those cases, the Supreme Court has held that a platform’s algorithm reflects “editorial judgments” about “compiling the third-party speech it wants in the way it wants.” Shwartz said that under that logic, curating content using algorithms is the company’s own speech, which is not protected by Section 230.
“TikTok makes choices about what content it recommends and promotes to specific users, and in doing so, it engages in its own primary discourse,” he wrote.
TikTok did not respond to requests for comment.
Tuesday’s ruling reversed a lower court judge’s ruling that dismissed Tawainna Anderson’s Section 230 lawsuit against TikTok and its Chinese parent company ByteDance.
She filed the lawsuit after her daughter Nylah died in 2021 after attempting the blackout challenge using a purse strap hanging in her mother’s closet.
“Big Tech has just lost its ‘get out of jail free card,’” Jeffrey Goodman, the mother’s attorney, said in a statement.
U.S. Circuit Judge Paul Matey, in an opinion partially concurring with Tuesday’s ruling, said TikTok, in its “pursuit of profits above all other values,” may choose to serve children content that emphasizes “the basest tastes” and “the basest virtues.”
“But you cannot claim immunity that Congress did not provide,” he wrote.
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