Products Liability Law Reporter

The Third Circuit Court of Appeals held that video-sharing social media company TikTok, Inc., and its corporate parent were not immune from liability in a suit brought by the mother of a child who unintentionally hanged herself after viewing a video recommended by TikTok.

TikTok, Inc., via its algorithm, recommended and promoted third-party videos to Nylah Anderson, 10, on her “For You Page” (FYP). One of the videos showed the so-called Blackout Challenge, which encouraged viewers to record themselves engaging in self-asphyxiation, including choking themselves with belts, purse strings, and other items until passing out. Anderson attempted to conduct the challenge after watching the video and unintentionally hanged herself.

Anderson’s mother, on behalf of her estate, sued TikTok, Inc., and ByteDance, Inc., alleging strict products liability and negligence. The plaintiff alleged that TikTok was aware of the Blackout Challenge, allowed users to post videos of themselves participating in the challenge, and recommended and promoted Blackout Challenge videos to minors’ FYPs through its algorithm. The district court dismissed the complaint, finding that TikTok was immune under §230 of the Communications Decency Act, which immunizes interactive computer services from liability based on content posted by third parties in certain circumstances, specifically when the defendant is sued for someone else’s expressive activity or content.

Reversing in part and vacating in part, the Third Circuit noted that recent Supreme Court case law held that a platform’s algorithm that reflects editorial judgments about compiling third-party speech in the way that it wants is the platform’s own expressive product and is protected by the First Amendment. Accordingly, the court held, curating compilations of others’ content via algorithms also constitutes first-party speech under §230.

Thus, the court concluded, TikTok’s FYP algorithm, which recommended the Blackout Challenge to Anderson on her FYP, was TikTok’s own expressive activity and constituted first-party speech. Because §230 immunizes only information provided by another, the court reiterated, §230 does not bar the plaintiff’s claims.

Citation: Anderson v. TikTok, Inc., 2024 WL 3948248 (3d Cir. Aug. 27, 2024).

Plaintiff counsel: AAJ members Jeffrey P. Goodman and Robert J. Mongeluzzi, both of Philadelphia.