TikTok isn't protected by Section 230 in 10-year-old’s ‘blackout challenge’ death
- Reference: 1724864405
- News link: https://www.theregister.co.uk/2024/08/28/tiktok_blackout_challenge_appeal/
- Source link:
In an [1]opinion [PDF] published today, a three-judge panel from the Third Circuit Court of Appeals in Pennsylvania decided that, because TikTok presented "blackout challenge" posts to 10-year-old Nylah Anderson on her For You Page of recommended content, the platform deserves to be taken to court for her death that followed.
The "blackout challenge" refers to a dangerous self-asphyxiation "trend" that went around on TikTok several years ago. Anderson attempted to participate in the challenge, leading to her death, but a lower-court judge [2]decided in 2022 that TikTok was protected by [3]Section 230 of the Communications Decency Act (CDA), which protects social media platforms from liability for content posted by their users.
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The Third Circuit court sharply disagreed.
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"TikTok knew that Nylah would watch [the blackout challenge video] because the company's customized algorithm placed the videos on her 'For You Page' after it 'determined that the Blackout Challenge was 'tailored' and 'likely to be of interest' to Nylah,'" Judge Paul Matey wrote in a partial concurrence included in the decision.
Matey argued that Section 230's application has evolved far beyond the original intent when Congress passed the CDA in 1996. It is not to "create a lawless no-man's land" of legal liability.
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"The result is a Section 230 that immunizes platforms from the consequences of their own conduct and permits platforms to ignore the ordinary obligation that most businesses have to take reasonable steps to prevent their services from causing devastating harm," Matey said.
Judge Patty Shwartz wrote in the main body of the opinion that the Third Circuit's reading of Section 230 is reinforced by the recent Moody v NetChoice [8]decision from the US Supreme Court. In that case, related to content moderation laws passed in Florida and Texas, SCOTUS held that algorithms reflect editorial judgments. Shwartz wrote that it's a compilation of third-party speech made in the manner a platform chooses, and thus merits First Amendment protection.
[9]Judge demands social media sites prove they didn't help radicalize mass shooter
[10]Trump and Biden agree on something – changing Section 230
[11]'I'm sorry for everything...' Facebook's Zuck apologizes to families at Senate hearing
[12]Uncle Sam sues TikTok for 'extensive' data harvesting from millions of kids
"Given the Supreme Court's observations that platforms engage in protected first-party speech under the First Amendment when they curate compilations of others' content via their expressive algorithms, it follows that doing so amounts to first-party speech under Section 230, too," Shwartz reasoned.
In short, you can't have it both ways: Either you serve everything, let users sort it out and keep that liability shield; or you make algorithmic picks that surface content, give users what you think they want and take on the liability that comes with being the arbiter of that content.
With the appeal decided, Anderson's case will head back to the District Court in the Eastern District of Pennsylvania to be re-heard.
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"Today's opinion is the clearest statement to date that Section 230 does not provide this catchall protection that the social media companies have been claiming it does," Anderson family lawyer Jeffrey Goodman [14]told the Associated Press regarding the outcome.
TikTok didn't respond to questions for this story.
It's not immediately clear what sort of broader reach the Third Circuit's opinion could have on Section 230 protections for other social media platforms, but the three-judge panel that made the call knows it's likely to be applied elsewhere: It's a precedential one. ®
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[1] https://regmedia.co.uk/2024/08/28/tiktok-anderson-appeal-opinion.pdf
[2] https://lawandcrime.com/crime/section-230-renders-tiktok-immune-from-moms-lawsuit-over-10-year-olds-daughters-blackout-challenge-death-judge-rules/
[3] https://www.theregister.com/2024/03/19/social_media_sites_headed_to/
[4] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2Zs@eBud2hNwme6BLhQQjQgAAANQ&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0
[5] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44Zs@eBud2hNwme6BLhQQjQgAAANQ&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[6] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33Zs@eBud2hNwme6BLhQQjQgAAANQ&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[7] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44Zs@eBud2hNwme6BLhQQjQgAAANQ&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[8] https://www.theregister.com/2024/07/01/supreme_court_social_media/
[9] https://www.theregister.com/2024/03/19/social_media_sites_headed_to/
[10] https://www.theregister.com/2022/09/09/biden_tech_reform_section230/
[11] https://www.theregister.com/2024/01/31/senate_social_media_zuckerberg/
[12] https://www.theregister.com/2024/08/02/us_doj_sues_tiktok/
[13] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33Zs@eBud2hNwme6BLhQQjQgAAANQ&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[14] https://apnews.com/article/tiktok-blackout-challenge-children-deaths-lawsuit-19f88053a5d48afad801b894b0ab5c83
[15] https://whitepapers.theregister.com/
Yeah, this will be tiptoed around whenever it bumps up against Meta or X.
There isn't any way they can create a precedent for Tik Tok that doesn't also affect Facebook and Twitter. They might WANT to, depending political motivations, but the law can only be twisted so far. They have to come up with legal reasoning. I don't see how Tik Tok's "for you" is any different than the stuff that comes up in your Facebook feed not from those who follow, or similar on Twitter.
Now if there was a law saying Section 230 applies differently to US owned and foreign owned social media companies that would provide the out, but such a law would have to pass. I imagine it could easily pass congress, provided it wasn't held up by those who want to make bigger changes to Section 230 or eliminate it entirely.
I remember the good old days of Facebook long ago, when if you'd seen everything posted by your friends and pages you followed it would simply tell you that's it. Now you can doomscroll forever, and it'll keep coming up with stuff it thinks you'll like. Or rather stuff you might like or might hate, but stuff you'll engage with.
Excuse me whilst I......
Bwahahahahahahahahahahahahahahahahaha
hahahahahahahahahahahahahahahahahahaha
hahahahahahahahahahahahahahahahahahaha
C'mon... start nailing these fucking anti-social platforms to the wall for their utter failure to deal with the hate, bile, misinformation and dangerous content they profit from, promote and push to others....
I bet they get fined a tiny fraction of their income... but if this goes to a jury trial... the damages could result in hundreds of millions in compensation and punitive damages... then open the floodgates to more lawsuits.
The only thing these bloodsucking leeches understand is money... let's make it unprofitable for them to survive without dealing with the problems they've created.
Re: Excuse me whilst I......
C'mon... start nailing these fucking anti-social platforms to the wall for their utter failure to deal with the hate, bile, misinformation and dangerous content they profit from, promote and push to others....
I just hope it brings about the end of 'AI' generated 'recommendations'. Earlier today I made the mistake of watching a few mins of a popular YT personality, ie one that has somehow ended up with 10m+ subscribers. Turned out to be the usual clickbaity vid with lots of style, and virtually no content. Now, half my recommended videos are from this mu.. person. In which I'm also learning to hate the YT trends of clickbait combined with 'suprised pikachu face', or as Simon Whistler calls it 'soyface'.
AI may conceivably be useful if it could let me filter those out.
If this case leads to a feature long overdue, like allowing me to express my own interests, anti-social media companies could provide themselves with some protection, if I picked topics like 'how to win a Darwin Award'.
Re: Excuse me whilst I......
I look forward to rules that allow social media to be fined for what the government calls "misinformation" or "hate speech." Perhaps under the next Trump administration we could go after those who claim climate change is caused by people. Or maybe fine companies for saying covid shots are safe and effective.
If the government decides what is credible or allowed speech, be careful when you don't like the side that gets elected.
Better off simply making a blanket requirement that all speech is allowed, except for extremely minimal limits such as actively calling for violence against someone or doxxing a person.
Re: Excuse me whilst I......
Netflix recommended Fast and Furious WTF and this influenced me to drive my Astra Diesel at 100MPH through a bus queue of nuns
Re: Excuse me whilst I......
Well, it's a shortcut straight to heaven, what are they whinging about?
Re: Excuse me whilst I......
I have s solution to this problem that works for me.
I just don't watch the stuff. You should try it -- just because some algorithm / person / Centauran / whatever puts stuff in a "For You" list doesn't mean that you actually have watch the stuff.
At last, some common sense
These platforms intentionally select content that they expect users will "engage with".
So they select content about asphyxiation, and users actually read it and/or try what is suggested. Who'd have thought it?
Re: At last, some common sense
To be honest, 40 years ago we really would not have credited that people would asphyxiate themselves after watching a vid, nor that a major commercial industry would legally exist facilitating it.
Re: At last, some common sense
Sorry, not sure if this is supposed to be sarcasm or what. Forty years, almost exactly, was right in the middle of the 'Satanic Panic' there is even a awful movie starring Tom Hank's about it.
Not a bad ruling, now we need to get the other side. Allow all speech and keep protections, but when you decide to block certain topics, now you're a publisher and liable.
Except Section 230 was specifically written to allow platforms to make moderation decisions without losing their liability protection.
It was included in the Communications Decency Act, which required platforms to take down certain types of content. Platforms pointed out that, under existing precedents, this would open them up to liability. Up until that point the accepted doctrine was what you suggest -- that platforms could either moderate nothing, or take responsibility for everything. Since the CDA effectively *required* moderation, this risked making it completely infeasible for platforms to have user-generated content at all. Section 230 was meant to remedy that.
TLDR; remove the Section 230 shield and platforms will have no choice but to stop distributing any user-supplied content and only publish their own curated stuff.
"now we need to get the other side. Allow all speech and keep protections, but when you decide to block certain topics, now you're a publisher and liable."
You do realize that, with something that stupid, the law would then say that everything at all would have to be posted to keep the protections. I.E. unless you keep up the terrorist beheading videos, you're liable. You would effectively prevent all public posting, including these forums, except for those places so extreme that they don't mind hosting literally anything, no matter how illegal, that someone decided to upload. That goes for the places you like as well. Maybe you're into some conspiracy theories and you're tired of those being moderated. Sorry, but if the sites that are keeping those up ban anything, be it even more extreme ones that you don't believe in or people disagreeing, they can now be sued for anything they keep up, meaning they're much less likely to decide to keep up the stuff you want to see or get away with it if they do.
Social media companies, are bars that open 24/7, have no bouncers, the fire escapes are locked, and they employ legally blind bar staff so they can use that as an excuse for serving drinks to kids in school uniform.
Then they claim no responsibility for the fights, deaths and people pissing on streets for miles around them.
It doesn't fly in meatspace , long past time that they have adequate bouncers and fire escapes, and if that puts them out of business, well that's what happens to bars and clubs too.
When I was at school (so late 80s), a local pub was quite happy to serve drinks to kids in school uniform. The guy's logic was "they are here enjoying some watered down beer and not god only knows where getting up to mischief". The local rozzers turned a blind eye so long as we (mostly) behaved because, well, the guy had a point. Plus being inexperienced children we were dumb enough to think that was real beer, though I usually asked for a tea because, ugh, beer tastes awful, and I'm one of those people who believes the only correct response to anything is to put the kettle on...
Yet another court inventing a section 230 exception.
The supreme court also said in various cases that it's free speech when a site or service picks what content they will allow...moderation, arguably a form of curation. So by this logic a site is liable if they moderate? A situation 230 was enacted to prevent (undoing the Prodigy decision).
The internet isn't safe kids and parents need to parent not use TikTok etc as a babysitter.
"The internet isn't safe kids and parents need to parent..."
So if a kid is unlucky enough to have bad parents then it's just tough shit and they deserve be left to mercy of every nasty nutter on the internet?
That's what CPS is for. A 10 year old left to browse TikTok unrestricted and unsupervised. If TikTok is liable for promoting the video the parents should be liable for negligence.
" then it's just tough shit and they deserve be left to mercy of every nasty nutter on the internet? "
Not so different to real life if a child decides to wander off and try taking themselves to look around a city. The child might come back with a load of new experiences. Or they might vanish and never be seen again.
In either case, as the above poster notes, there is surely an aspect of parental neglect in failing to, you know, parent .
It seems like a politically safe opinion with regards to Tik Tok given the US' hostility towards it and its Chinese owners at present but I wouldn't be surprise if there's a sudden backtracking of this once it threatens to affect good old American social media companies.