TikTok can be sued for blackout challenge videos, court rules

The mother of a 10-year-old Chester girl who died while attempting a viral “blackout challenge” inspired by videos she saw on TikTok can sue the social media platform for the role she says it played in her daughter's death, a federal appeals court in Philadelphia ruled.

For decades, federal law has protected online publishers from lawsuits over content others post on their platforms. But in its decision Tuesday, the U.S. Court of Appeals for the Third Circuit found that those protections do not necessarily extend to the algorithms social media companies develop to present that content to their users.

“TikTok makes decisions about the content recommended and promoted to particular users and, in doing so, engages in its own expression,” District Judge Patty Shwartz wrote for the three-judge panel that decided the case.

” READ MORE: 10-year-old girl from Chester died in a choking challenge on TikTok. Her mother is suing the video platform.

The ruling, which legal experts described as novel, could have significant implications for social media companies that have relied on this legal protection for years to fend off attempts to hold them liable for the content they host.

Although courts have rolled back those protections in recent years, the Third Circuit's ruling appears to go further than previous decisions, said Amy Landers, director of the intellectual property law program at Drexel University.

“As far as I know, this is the furthest a court has ever gone,” she said.

Neither TikTok nor its owner ByteDance Inc. responded to requests for comment on Wednesday.

For Tawainna Anderson, Nylah's mother – who accidentally hanged herself with her mother's purse in 2021 while mimicking videos presented to her by TikTok's “For You Page” – the ruling revives a lawsuit she filed after her daughter's death.

“Nothing will bring our beautiful little girl back. But we take comfort in knowing that by holding TikTok accountable, we can help other families avoid future, unimaginable suffering,” the Anderson family said in a statement through their lawyers.

The Blackout Challenge

The blackout challenge was a TikTok trend that gained popularity in 2021, especially among children. Children would choke themselves with household objects until they passed out and then upload the video to the social media platform.

According to Bloomberg Businessweek, the deaths of at least 20 children – including 15 aged 12 or younger – have been linked to the Blackout Challenge.

Among these children was Nylah, a 10-year-old who enjoyed dancing to videos on TikTok.

Nylah attempted the Blackout Challenge in December 2021 after learning about it on her “For You Page,” where TikTok recommends content. She hung her mother's purse on a hanger in a closet at her home, placed her neck on the strap, and passed out.

She lost consciousness. When her mother found her, she was unconscious. Nylah died five days later in a children's hospital.

When Nylah died, TikTok was aware of the problem of dangerous challenges on the platform. A month earlier, the company had released the results of a global survey on teens' use of the platform. It was part of an effort to “better understand how teens engage with potentially harmful challenges and hoaxes.” One in six teens in the survey said they had encountered a challenge that was risky and either dangerous or very dangerous.

The lawsuit

Anderson sued TikTok and its parent company ByteDance in federal court in 2022. They argue that TikTok continued to allow blackout challenge videos despite knowing they were harmful. And to make matters worse, the platform's algorithm popularized the blackout challenge among teens by curating its “For You Page,” they said.

But within months, a U.S. district judge dismissed the lawsuit, citing federal laws — colloquially known as Section 230 — that protect platforms from lawsuits over the third-party content they host.

“Defendants did not create the challenge, but made it readily available on their website,” wrote Judge Paul Diamond. “Defendants published that work — precisely the activity that Section 230 bars from liability.”

In its ruling Tuesday, the Third Circuit disagreed. While it agreed that Anderson could not sue TikTok solely for hosting the blackout challenge videos that led to her daughter's death, the social media platform did more in Nylah's case, Shwartz wrote.

” READ MORE: Malvern Middle School students created more than 20 TikTok accounts posing as teachers and posting inappropriate content

TikTok's algorithm actively promoted the video to Anderson through her “For You Page.” This page tailors the content served based on demographics, metadata and other information, and is not based solely on users' choices about which videos they want to see.

This approach amounts to an editorial decision, Shwartz wrote in the court's opinion. TikTok's algorithm is itself a form of “expressive content” for which the company can be sued.

“Nylah … probably had no idea what she was doing or that following the images on her screen would kill her,” Circuit Judge Paul Matey wrote in partial concurrence. “But TikTok knew Nylah would be watching because the company's customized algorithm placed the videos on her 'For You' page.”

Tuesday's ruling sends Anderson's lawsuit back to the lower court, where she must now prove that the TikTok algorithm played a role in her daughter's death.

“She has the right to a day in court,” said her lawyer Jeffrey Goodman.