infoJustice

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A recent article by Barry Sookman, “The Significance of Anderson v. TikTok: A Test for Section 230 CDA,” explores the Third Circuit’s recent decision in Anderson v. TikTok, which redefines the boundaries of immunity granted to online platforms under Section 230 of the Communications Decency Act (CDA). Sookman notes that this decision challenges long-standing protections for platforms regarding user-generated content and the role of algorithmic recommendations as “first-party speech” that may fall outside CDA immunity.

This case involved a wrongful death claim brought against TikTok after its algorithm promoted a dangerous “Blackout Challenge” (which promotes self-asphyxiation) video to a minor. The court’s ruling found that TikTok’s promotion of this content through its “For You Page” was an act of expressive, first-party speech rather than the passive hosting of third-party content (which is ordinarily protected). This interpretation departs from past rulings that broadly applied Section 230 immunity to any activity related to user-generated content.

Sookman highlights two significant factors in the court’s reasoning: (1) the Supreme Court’s ruling in Moody v. NetChoice, which viewed certain algorithmic functions as the platform’s own “expressive product” which is therefore protected by the First Amendment, and (2) Justice Clarence Thomas’s statements in prior cases, which have called for a reassessment of Section 230’s scope to avoid granting overly broad immunity. The Third Circuit’s decision suggests a possible shift in how courts view liability for platforms’ algorithmic recommendations – which can increase accountability for content recommendations, but also result in potentially unfair or unwarranted liability.

Anderson v. TikTok could prompt the Supreme Court to clarify or potentially limit CDA immunity in cases involving platforms’ active content promotion, setting new precedent with far-reaching implications for tech companies and content moderation.

Barry Sookman article here: https://barrysookman.com/2024/09/16/the-significance-of-anderson-v-tiktok-a-test-for-section-230-cda/

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