This decision (by the US Court of Appeals for The Third Circuit) has significant implications for social media platforms, not only in the US but globally, as it suggests that algorithmic recommendations can be considered first-party speech and therefore not protected under Section 230 of the Communications Decency Act (CDA). This could potentially open the door for more lawsuits against social media platforms based on their algorithmic recommendations. The court was of the view “For You Page” (FYP) algorithm—is TikTok’s own expressive activity.

Facts

The case revolves around the tragic death of ten-year-old Nylah Anderson, who died after attempting the “Blackout Challenge” promoted on TikTok. TikTok’s algorithm recommended and promoted videos, including the “Blackout Challenge,” to Nylah Anderson on her “For You Page” (FYP). The challenge encouraged viewers to engage in acts of self-asphyxiation. After watching the video, Nylah attempted the challenge and unintentionally hanged herself.

Court Ruling

The question before the Court was whether TikTok was protected under Section 230 of the Communications Decency Act (CDA), which provides immunity to interactive computer services from liability based on content posted by third parties. The court determined that TikTok’s algorithmic recommendations are considered TikTok’s own expressive activity, or first-party speech. This means that TikTok’s algorithmic recommendations are not protected under Section 230 of the CDA.

Our comments

The tension between social media platforms and other intermediaries over information posted by users and resultant liability or exemptions by platforms claiming ‘safe harbour’ has been the subject of intense debate and litigation in the Indian courts. The court has so far tried to balance the free speech and the platform’s liability. At the same time, the Courts are finding the arguments of the platform that their role is limited to the “take down” mechanism on being notified is not appreciated as illustrated by the Court’s observation below and the recent amendment of Section 79 of the Information Technology Act and Intermediary Rules 2021.
In a case before the Delhi High Court, J. Mukta Gupta in a case titled RELIANCE INDUSTIES LTD. Vs QUIKR INDIA PVT. LTD CS (COMM) 143/2020 before the Delhi High Court while considering the contention of the Defendants that a) Defendant’s portal automatically lists the advertisements. The system being auto-generated, the defendant has no mechanism to ascertain the authenticity of the third parties b) As and when any party lodges a complaint the defendant pulls down the said URL observed.

the defendant runs this web portal not for charity but earns income from it and to claim that since the system is auto generated, the defendant has no mechanism to ascertain the authenticity cannot be accepted. Whether the same would need a policy change in the defendant’s working is for the defendant to decide and any action of the defendant which has a cascading effect not only on the plaintiffs’ right in the trademark, copyright etc. but also affects the gullible job seekers has to be with sufficient due diligence and in compliance with the relevant provisions.