TikTok’s algorithm recommended a “Blackout Challenge” video to a ten year-old girl, who died attempting to replicate what she saw. The content was posted by TikTok on the user’s “For You Page”.  The surviving parents’ lawsuit against TikTok was dismissed under Section 230.  But the U.S. Court of Appeal for the Third Circuit reversed:

“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 §230, too. Here, as alleged, TikTok’s FYP algorithm decides on the third-party speech that will be included in or excluded from a compilation — and then organizes and presents the included items on users’ FYPs. Accordingly, TikTok’s algorithm, which recommended the Blackout Challenge to Nylah on her FYP, was TikTok’s own expressive activity, and thus its first-party speech. Such first-party speech is the basis for Anderson’s claims. Section 230 immunizes only information provided by another, and here, because the information that forms the basis of Anderson’s lawsuit — i.e., TikTok’s recommendations via its FYP algorithm — is TikTok’s own expressive activity, §230 does not bar Anderson’s claims.”

 

Anderson v. TikTok, No.22-3061, 2024 WL 3948248 (3rd Cir. Aug. 27, 2024).