116 F.4th 180
3rd Cir.2024Background
- Ten-year-old Nylah Anderson died after attempting the "Blackout Challenge," a dangerous viral video promoted to her by TikTok’s algorithm on her "For You Page" (FYP).
- Nylah’s mother, Tawainna Anderson, brought suit against TikTok and ByteDance under theories including strict products liability and negligence, arguing the algorithm recommended the deadly content to her daughter, resulting in her death.
- The District Court dismissed Anderson’s claims, holding Section 230 of the Communications Decency Act (CDA) immunized TikTok from liability for harms arising from third-party content.
- Anderson appealed, contending TikTok’s tailored recommendations via its algorithm constitute the platform’s own conduct (first-party speech) not protected by Section 230.
- The case turned on whether TikTok’s recommendation algorithm makes it liable for its own expressive acts or immunized conduct relating solely to third-party content.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TikTok is immune under §230 | TikTok’s algorithmic recommendations are TikTok’s own expressive conduct, not protected as third-party content under Section 230. | Section 230 provides broad immunity for all acts tied to the display and arrangement of third-party content. | Section 230 does not bar claims based on TikTok’s own expressive recommendations via its algorithm. |
| Liability for mere hosting | Anderson does not seek liability for mere presence of Blackout Challenge videos on TikTok. | Any liability for third-party content posted must be immunized under Section 230. | No liability for mere hosting of third-party videos; that is immunized. |
| Liability for recommendations/algorithm | TikTok’s knowing recommendation/promotion of dangerous content constitutes its own conduct, separate from third-party content posting. | Recommendations are merely arranging others’ content, thus within Section 230 immunity. | TikTok’s algorithmic recommendations are expressive acts of TikTok itself and not immune. |
| Applicability of precedent (NetChoice) | Recent Supreme Court cases recognize platforms’ algorithmic recommendations as a form of first-party expressive activity. | Prior circuit decisions immunize all traditional editorial functions, including recommendations, under Section 230. | Adopts NetChoice view: expressive algorithms are platforms’ own speech and not wholly immune. |
Key Cases Cited
- Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) (interpreted Section 230 as broadly immunizing ISPs for third-party content)
- F.T.C. v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009) (Section 230 immunizes only for third-party content, not provider’s own unlawful content)
- Moody v. NetChoice, LLC, 144 S. Ct. 2383 (2024) (algorithmic curation is platform's expressive product, not purely third-party speech)
- Doe ex rel. Roe v. Snap, Inc., 88 F.4th 1069 (5th Cir. 2023) (concurrence discussing limitations of Section 230 immunity)