TikTok sued over Blackout Challenge: Section 230 immunity challenged - The UpStream

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TikTok sued over Blackout Challenge: Section 230 immunity challenged

posted Sunday Sep 1, 2024 by Scott Ertz

TikTok is known for a lot of things, but its bizarre trends and challenges have become its most controversial. From the more tame trends like the Cinnamon Challenge to incredibly dangerous trends like the Tide Pod Challenge, TikTok has promoted a number of odd things. One of the more dangerous trends was the Blackout Challenge in 2022, which led to several deaths. This week, a court ruled that Section 230 does not insulate the company from fault in relation to the deaths from the Blackout Challenge.

What was the Blackout Challenge?

The 2022 Blackout Challenge on TikTok was a dangerous social media trend that encouraged participants to choke themselves with household items until they passed out, then film the experience and share it online. This challenge, which gained significant traction on the platform, led to numerous injuries and fatalities, particularly among young users. The challenge's popularity highlighted the risks associated with viral internet trends, especially those that involve self-harm or risky behavior.

Tragically, the Blackout Challenge was linked to the deaths of at least 20 children within an 18-month period. The challenge's spread raised serious concerns about the role of social media platforms in moderating harmful content and protecting vulnerable users. In response to these incidents, TikTok faced legal actions and increased scrutiny from regulators and parents, who demanded stricter content moderation and better safety measures to prevent such dangerous trends from proliferating. The Blackout Challenge serves as a stark reminder of the potential dangers of viral challenges and the need for greater awareness and intervention to protect users, especially minors.

A challenging lawsuit against TikTok

In May 2022, Tawainna Anderson filed a lawsuit against TikTok and its parent company, ByteDance, following the tragic death of her 10-year-old daughter, Nylah. Nylah had attempted the dangerous Blackout Challenge. The lawsuit alleges that TikTok's algorithm promoted these harmful videos to young users, including Nylah, despite the known risks. Anderson's legal action claims that TikTok and ByteDance were aware of the challenge and failed to take adequate measures to prevent such content from being accessible to minors.

The case has drawn significant attention to the responsibilities of social media platforms in moderating content and protecting vulnerable users. Initially, a federal district court dismissed the lawsuit, citing Section 230 of the Communications Decency Act, which provides immunity to platforms for third-party content. However, when a service begins altering the content that it shows to users, it can lose its immunity under Section 230.

A legal reprieve in court

This week, the Third Circuit Court of Appeals partially reversed this decision, allowing the lawsuit to proceed. The court ruled that TikTok's algorithm, which curates and recommends videos, could be considered the platform's own expressive activity, thus not protected under Section 230. This ruling could have far-reaching implications for how social media companies manage and recommend content, potentially leading to stricter regulations and greater accountability.

Social media companies have continued to try to hide behind Section 230, while actively promoting and demoting certain content. Section 230 is intended to protect platforms, defined as digital intermediaries that allow others to share speech and content. However, it does not protect publishers, defined as moderated content services. Publishers determine what content will be shown, what content will be not be shown, and the priority of that content. The court has said that, in this case, the prosecution can argue that TikTok's curated algorithm could disqualify it from Section 230 protections, allowing the case to move forward.

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