A lawsuit was recently brought against TikTok, which may end up altering the legal landscape for social media platforms operating in the U.S.
The lawsuit has its origins in the tragic death of a 10 year-old girl who, while engaging in a trendy but extremely dangerous activity on Tik Tok, sadly lost her life.
In 2021, young Nylah Anderson, was exposed to a viral meme in her TikTok feed. The video that presented itself was called “The Blackout Challenge.”
Social media platforms are loaded with supposedly cool game-like challenges, many of which are relatively harmless. But this particular challenge was anything but low risk.
Devastatingly for Nylah and her family, the specific activity that was advocated was to choke oneself until one lost consciousness. Nylah participated in the challenge and tragically passed away in the process.
Her family filed a lawsuit against TikTok, but the trial court threw out the case, based on the traditional statutory protections enjoyed by social media platforms.
However, a federal appellate court came to a different conclusion. The court held that the lawsuit could go forward because of the manner in which TikTok used its technology, finding that the platform’s algorithm may have promoted the harmful content that led to a fatal outcome for the young girl.
The court’s decision stated the following: “While no one person at TikTok curates content for anyone’s feed, it is fair to call the algorithm the arbiter, and the algorithm is programmed by TikTok…”
Social media platforms, such as TikTok, Facebook, Instagram, X (formerly Twitter), and others, have been protected by a 25 year-old law passed by Congress, which was intended to shield platforms that came into being during the internet’s infancy.
The early days of the internet featured platforms such as AOL, Compuserve, and Prodigy, which functioned as conduits that passively provided access to content, rather than actively influencing what would appear in users’ accounts.
Consequently, as part of the Communications Decency Act of 1996, protections were set up in order to shield these passive online services from liability for content that was posted by third parties.
For these early gateways to the web, revenue arrived in the form of subscription fees.
Today’s platforms have a completely different revenue model. Advertising as well as sharing user data comprise the primary sources of income.
The aim of modern social media companies is to acquire, and perhaps more importantly, to maintain its users.
The complex and sophisticated algorithm is the tool that enables a company to consistently maintain its users.
TikTok’s “For You” page, Facebook’s feed, Instagram’s recommendations, and X’s “For You” page are controlled by algorithms that learn what an individual likes to view, and subsequently, based on knowledge of a person’s interests, bring content from other users into the individual’s account.
In essence, not only do modern social media platforms provide access to content, but they curate what users see via pre-programmed algorithms.
The TikTok lawsuit could have major implications for all of the major modern social media companies, since they all use algorithms to curate content.
If Nylah’s family prevails in its lawsuit, the resulting precedent could mean an effective end to the legal protections under which social media concerns have been operating.
TikTok, Facebook, Instagram, X, and other platforms would then face a significant shift from the protections they have enjoyed under Section 230 of the Communications Decency Act.
In order to avoid future liability, modern social media platforms would be legally responsible to re-design their algorithms in such a way as to prevent the delivery of harmful content.
It very well may be that loss of a precious life will spell the beginning of the end to the outdated legal protections that social media platforms have been enjoying at the expense of the innocent ones.
James Hirsen 