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In an article in the New York Law Journal, Segal McCambridge Shareholder Carla Varriale-Barker writes about the tragic case of Anderson v. TikTok, Inc., in which 10-year-old Nylah Anderson died by self-asphyxiation trying to recreate the TikTok “Blackout Challenge” involving individuals recording their efforts to choke themselves using an array of common objects, such as purse strings and belts, until they passed out. The “Blackout Challenge” had previously been implicated in the death of several children. However, TikTok took no action to curtail the dissemination. Nylah’s estate subsequently sued TikTok and its parent company, asserting product liability and negligence causes of action, with the platform attempting to shield themselves behind Section 230 of the Communications Decency Act that provides cover to platforms for third-party-posted content.
“Initially, the case was dismissed because the District Court determined that the defendants were subject to immunity for such claims pursuant to Section 230,” writes Varriale-Barker. “However, the appellate court was not persuaded by this line of reasoning [and] noted that TikTok’s recommendations to Nylah via its algorithm, delivered to her…transformed TikTok’s recommendation algorithm into TikTok’s own expressive activity.”
Accordingly, TikTok’s recommendations counted as “speech” in a legal sense, the appellate court decided. Indeed, the Anderson decision has been cited in a multi-district litigation pending in California brought on behalf of children and adolescents, school districts and local governments, and state attorneys general alleging that several social media companies (including TikTok) designed their platforms to foster compulsive use by minors, resulting in a variety of harms to children, local governments, and the public health.
“As the Internet has grown in scope and sophistication, beyond what Congress could have imagined when it conferred immunity upon Internet Service Providers like TikTok, the question of what conduct transcends mere publishing of third-party content has also flourished,” wrote Varriale-Barker. “Although the outcome is uncertain, it is clear that the boundaries of Section 230 will continue to be pushed into new territory.”
Read the story in full; click here (subscriber-based).
