TikTok must face a lawsuit over the death of a 10-year-old girl, the Court of Appeal rules

A US appeals court has 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 dared to suffocate themselves until they passed out. .

While a federal law typically shields Internet companies from lawsuits over content posted by users, the 3rd U.S. Circuit Court of Appeals in Philadelphia ruled Tuesday that the law does not bar Nylah Anderson’s mother from pursuing claims that the algorithm TikTok recommended her daughter’s challenge.

US Circuit Judge Patty Shwartz, writing for the three-judge panel, said Section 230 of the Communications Decency Act of 1996 only immunizes information provided by third parties and not recommendations made by TikTok through an underlying algorithm its platform.

She acknowledged that the holding was a departure from previous court rulings by her court and others that hold that Section 230 immunizes an online platform from liability for failing to prevent users from sending harmful messages to others.

But she said that reasoning no longer holds after a U.S. Supreme Court ruling in July on whether state laws designed to limit the power of social media platforms to curtail content they find objectionable violate their right to free speech.

In those cases, the Supreme Court held that a platform’s algorithm reflects “editorial judgments” about “compiling the third-party speech it wants in the way it wants.” Shwartz said under this logic, content curation using algorithms is the company’s own speech, which is not protected by Section 230.

“TikTok makes choices about what content is recommended and promoted to certain users, and in doing so engages in its own first-party discourse,” she wrote.

TikTok did not respond to requests for comment.

Tuesday’s ruling overturned a lower court judge’s decision to dismiss, on Section 230 grounds, Tawainna Anderson’s case against TikTok and its Chinese parent company ByteDance.

She sued after her daughter, Nylah, died in 2021 after attempting the termination challenge using a purse strap hanging in her mother’s closet.

“Big Tech 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 in Tuesday’s decision, said TikTok in “seeking profit above all other values” could choose to serve content to children, pointing out “the basest tastes’ and ‘the basest virtues’.

“But it cannot claim immunity that Congress has not provided,” he wrote.

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Law of processes