An appeals court has revived a lawsuit against TikTok, reversing a lower court’s ruling that Section 230 immunity shielded the short video app from liability after a child died taking part in a dangerous “Blackout Challenge.”
Several children have died taking part in the “Blackout Challenge,” which encourages users to choke themselves until they pass out. The lawsuit brought by Tawainna Anderson concerns her daughter’s death after viewing the challenge on TikTok. Judge Patty Shwartz, in her opinion, explained that Section 230 does not bar Anderson from arguing that TikTok’s algorithm creates an “expressive product” communicating to users that curated videos would interest them.
Shwartz referenced a recent Supreme Court ruling that held a platform’s algorithm reflecting editorial judgments about third-party content constitutes the platform’s own expressive product, protected by the First Amendment. However, TikTok’s algorithm does not receive Section 230 protection since it is an expressive activity and not merely third-party speech.
The appeals court has now remanded the case to the district court to address Anderson’s remaining claims. Judge Shwartz specified that if Anderson’s daughter had discovered the “Blackout Challenge” video by searching, TikTok would not be liable. However, its promotion of such content through the For You Page alters this liability.
Judge Paul Matey concurred in part, noting that TikTok was aware of the dangers and took inadequate action to stop the spread of the challenge. He argued against broad interpretations of Section 230 that allow casual indifference to the death of a child, emphasizing that Anderson’s estate could pursue claims related to TikTok’s deliberate distribution and recommendation of harmful videos.
Anderson’s legal team previously stated that the Communications Decency Act was never meant to allow dangerous content to be sent to children. They insisted they would continue advocating for the protection of children. TikTok has yet to comment on the recent decision but previously committed to user safety.
For further information, visit the detailed coverage at Ars Technica.