Could a tragic social media trend be the case that finally cracks the legal shield protecting Big Tech?
⚖️ The Facts of the Case
In 2021, Nylah Anderson, a 10-year-old girl, tragically died after attempting a viral “blackout challenge” promoted on her TikTok “For You” feed. Her mother, Tawainna Anderson, filed a lawsuit, arguing that TikTok’s algorithm recommended the dangerous challenge to her daughter, which led to her death. Initially, a lower court dismissed the case under Section 230 of the Communications Decency Act, which typically protects platforms from liability for third-party content. However, the 3rd U.S. Circuit Court of Appeals revived the case in August 2024, finding that TikTok’s algorithm might constitute its own speech, thus sidestepping Section 230 protection.
📉 Rejection of Section 230 Defense
The appellate court’s ruling is notable because it moves away from the broad immunity traditionally granted under Section 230. The court, citing the Supreme Court’s recent interpretation in Moody v. NetChoice, ruled that TikTok’s use of algorithms to promote specific content could be seen as the platform’s own speech. This ruling marks a shift, as the court found that TikTok’s algorithmic recommendations were not merely passive hosting of third-party content but active, first-party speech, thus exposing TikTok to liability. The decision specifically highlights that Section 230 protects platforms from third-party content, not the platform’s own editorial decisions.
🚨 Implications if Taken to the Supreme Court
If the case reaches the Supreme Court, it could redefine the scope of Section 230 protections for social media companies. The Court may be asked to decide whether algorithmic recommendations by platforms like TikTok constitute “expressive speech” and, if so, whether they can still be shielded from liability. Justices like Clarence Thomas have previously expressed interest in reining in Section 230, signaling that the Court might be willing to restrict its application. A ruling against TikTok could expose platforms to lawsuits for algorithm-driven content recommendations, altering how platforms curate and distribute content.
Such a decision could have far-reaching consequences for online platforms, leading to more cautious content moderation and possibly stifling the spread of user-generated content.
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