US appeals court revives a lawsuit against TikTok over 10-year-old's 'blackout challenge' death

PHILADELPHIA (AP) — A U.S. appeals court revived on Tuesday a lawsuit filed by the mother of a 10-year-old Pennsylvania girl who died attempting a viral challenge she allegedly saw on TikTok that dared people to choke themselves until they lost consciousness.

While federal law generally protects online publishers from liability for content posted by others, the court said TikTok could potentially be found liable for promoting the content or using an algorithm to steer it to children.

“TikTok makes choices about the content recommended and promoted to specific users, and by doing so, is engaged in its own first-party speech,” Judge Patty Shwartz of the 3rd U.S. Circuit Court in Philadelphia wrote in the opinion issued Tuesday.

Lawyers for TikTok’s parent company, ByteDance, did not immediately return phone and email messages seeking comment.

Lawyers for the mother, Tawainna Anderson, had argued that the so-called “blackout challenge,” which was popular in 2021, appeared on Nylah Anderson’s “For You" feed after TikTok determined that she might watch it — even after other children had died trying it.

Nylah Anderson's mother found her unresponsive in the closet of their home in Chester, near Philadelphia, and tried to resuscitate her. The girl, described by her family as a fun-loving “butterfly," died five days later.

“I cannot stop replaying that day in my head,” her mother said at a news conference in 2022, when she filed the lawsuit. “It is time that these dangerous challenges come to an end so that other families don’t experience the heartbreak we live every day.”

A district judge initially dismissed the lawsuit, citing Section 230 of the 1996 Communications Decency Act, which is often used to protect internet companies from liability for things posted on their sites.

The three-judge appeals court panel partially reversed that decision Tuesday, sending the case back to the lower court for trial.

“Nylah, still in the first year of her adolescence, likely had no idea what she was doing or that following along with the images on her screen would kill her. But TikTok knew that Nylah would watch because the company’s customized algorithm placed the videos on her ‘For You Page,'” Judge Paul Matey wrote in a partial concurrence to the opinion.

Jeffrey Goodman, a lawyer for the family, said it's "inevitable" that courts give Section 230 more scrutiny as technology reaches into all facets of our lives. He said the family hopes the ruling will help protect others, even if it doesn't bring Nylah Anderson back.

“Today’s opinion is the clearest statement to date that Section 230 does not provide this catchall protection that the social media companies have been claiming it does,” Goodman said.