A US appeals court has issued an opinion that could have wide-ranging implications for social media platforms, finding that content selected for users by TikTok's algorithms doesn't qualify for Section 230 protection.

In an 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 decided in 2022 that TikTok was protected by Section 230 of the Communications Decency Act (CDA), which protects social media platforms from liability for content posted by their users. 

The Third Circuit court sharply disagreed.

"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.

"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 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. 

"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. 

"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 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. ®

https://www.theregister.com//2024/08/28/tiktok_blackout_challenge_appeal/