Section 230 Immunizes TikTok for User-Posted Videos–Day v. TikTok

Day discovered videos on TikTok of her 2-year-old daughter being abused. That’s horrifying, but the opinion doesn’t address the many obvious followup questions, such as: where was the daughter during the abuse? who was abusing the daughter? was that person prosecuted? how did Day find these videos–was it by following people she knew personally, or did she randomly stumble on it, in which case how did the videos get into the poster’s hands? would Day have discovered the abuse without the videos as evidence?

TikTok immediately removed the videos once it learned of them, but Day nevertheless sued TikTok for various forms of negligence. The court grants TikTok’s motion to dismiss.

Day argued that TikTok “did not put any warning on any of the videos claiming they might contain sensitive material; did not remove any of the videos from its platform; did not report the videos to any child abuse hotline; did not sanction, prevent, or discourage the videos in any way from being viewed, shared, downloaded or disbursed in any other way; and ‘failed to act on their own policies and procedures along with State and Federal Statutes and Regulations.'” The court responds:

Plaintiff’s complaint does not allege defendant created or posted the videos. It only alleges defendant allowed and did not timely remove the videos posted by someone else.

This is exactly what Section 230 covers. This court applied the increasingly wonky Seventh Circuit Section 230 jurisprudence, but relying mostly on the Craigslist decision, this judge has no problem reaching the obvious result.

To get around Section 230, Day invoked FOSTA. The facts hint at, but don’t clearly specify, that the videos showed sexual abuse. Either way, the “complaint does not allege any facts suggesting anyone has engaged in a commercial sex act,” so FOSTA doesn’t apply.

Obviously this case involves disturbing and heartbreaking facts, and I hope the wrongdoers are brought to justice. However, taking the fight to TikTok seems like a very indirect route to justice, especially if the videos were essential to stopping the abuses.

Case citation: Day v. TikTok, Inc., 2022 WL 595745 (N.D. Ill. Feb. 28, 2022)

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* My testimony at the House Energy & Commerce Committee: Balancing Section 230 and Anti-Sex Trafficking Initiatives
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