Judge Patty Shwartz, a rapporteur for the three-judge panel, said Section 230 of the Communications Decency Act of 1996 only protects information provided by third parties and not recommendations that TikTok itself makes through an underlying algorithm on its platform.
He acknowledged that the ruling departed from previous court rulings and others holding that Section 230 exempts an online platform from liability for failing to prevent users from transmitting harmful messages to others.
But he said that reasoning was no longer valid following the U.S. Supreme Court’s ruling in July on state laws aimed at restricting the power of social media platforms to curb content they deem objectionable and violate their free speech rights.
In those cases, the Supreme Court held that a platform’s algorithm reflects “editorial judgments” about “compiling the third-party speech it wants in the way it wants.” Shwartz said that under that logic, content curation using algorithms is the company’s own speech, which is not protected by Section 230.
“TikTok makes decisions about what content is recommended and promoted to specific users, and in doing so, it engages in its own first-party pitch,” he wrote.
TikTok did not respond to requests for comment.
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