TikTok collects personal data from users' online activity, including information about messages users send or receive, the content users provide, the way they interact with ads, the time they spend interacting with different content, the hardware and software they use, and their locations. Although the app is free, TikTok generates revenue from selling the information to various companies. TikTok's user interface also displays (either publicly or privately) a user's number of "friends" as well as the number of interactions, views, likes, dislikes, reactions, and comments on user provided content. Hashtag challenges are a popular trend on TikTok, wherein users take some action, record it, and post with a particular hashtag, such as the "Blackout Challenge," where users asphyxiate themselves on camera, and the "Nutmeg Challenge," where the user attempts to ingest enough nutmeg on camera to induce hallucinations and other side effects.
In addition to alleging that TikTok's platform uses design features intended to keep young users on the app for as long as possible to maximize advertising revenue, Nevada also alleged that TikTok publicly and knowingly made several misrepresentations and omissions to deceive consumers about young users' safety on the platform. Nevada cited internal TikTok documents acknowledging that young users use the platform compulsively and access harmful content. Nevada also alleged that because of young users' unhealthy engagement with the TikTok app, they suffer mental, physical, and privacy harms.
TikTok moved to dismiss, arguing that Section 230 of the federal Communications Decency Act immunizes TikTok from liability for third-party content published on the TikTok platform. The federal district court denied TikTok's motion, concluding that Section 230 did not bar Nevada's claims.
Section 230 immunizes internet service providers from liability for posting content created by third parties. But the district court concluded that Section 230 did not immunize TikTok because the complaint did not seek to place TikTok in the shoes of third-party content creators. Rather, the Complaint sought relief based solely on TikTok's own content, including the platform design and TikTok's misrepresentations and material omissions about the safety of its platform.
TikTok argued that designing algorithms and making decisions about the structure and operation of a social media platform inherently entail choices about what content can appear, and those types of choices are traditional publisher functions. TikTok also argued that Nevada's misrepresentation claim depends on allegations that TikTok did not do enough to block and remove content, which also are core publishing functions.
The court was unimpressed with TikTok's arguments. It held, "[t]hough the State references problematic third-party content in its complaint—such as TikTok 'challenge' trends and videos depicting drugs, sex, and suicide—it does so to support its claims that (1) TikTok made misrepresentations about its enforcement of the platform's community guidelines and the safety measures that TikTok implements and (2) TikTok knows that young users experience mental, physical, and privacy harms due to their compulsive TikTok use. . . . this claim does not trigger [Section] 230 immunity because the State seeks to hold TikTok liable for its own statements and omissions and resulting duties to users with only a tangential relationship to third-party content."
The court's ruling means that the case will proceed to discovery. Nevada will now be allowed to delve deeply into TikTok's practices. TikTok most likely would rather avoid that process. I suspect active settlement negotiations are underway.