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In an article published 4/2 in the New York Law Journal, Segal McCambridge Shareholder Carla Varriale-Barker discusses the tragic case of Nylah Anderson, a 10-year-old who died by self-asphyxiation trying to recreate the TikTok “Blackout Challenge” promoted to her by the app’s algorithm. The “Blackout Challenge” involved individuals recording their efforts to choke themselves using an array of common objects until they passed out. Nylah’s estate subsequently sued TikTok and its parent company, asserting product liability and negligence causes of action.
“By the time Nylah viewed the ‘Blackout Challenge,’ TikTok knew it was circulating, and that its algorithm was directing this content to children,” writes Varriale-Barker. “The ‘Blackout Challenge’ had already been implicated in the death of several children, some of whom were younger than 12. However, TikTok took no action to curtail the dissemination.”
Initially, Anderson v. TikTok, Inc. was dismissed when the District Court determined that the defendants were subject to immunity for such claims pursuant to Section 230 of the Communications Decency Act, which shields content providers from third-party content. An appeals court, however, disagreed, asserting that Section 230 did not apply since TikTok’s algorithm essentially equated to “speech” and not a third party’s expressive conduct.
“As the Internet has grown in scope and sophistication, beyond what Congress could have imagined when it conferred immunity upon Internet Service Providers like TikTok, the question of what conduct transcends mere publishing of third-party content has also flourished,” writes Varriale-Barker. “Although the outcome is uncertain, it is clear that the boundaries of Section 230 will continue to be pushed into new territory.”
Read the story in full; click here (subscriber-based).
