EFF to Third Circuit: TikTok enjoys immunity under Section 230 for video recommendations

EFF legal intern Nick Delehanty was the lead author of this post.

EFF filed an amicus brief with the U.S. Court of Appeals for the Third Circuit in support of TikTok’s request that the full court reconsider the case Anderson vs. TikTok after a three-judge panel ruled that Section 230 immunity did not apply to TikTok’s recommendations on user videos. We argued that the panel was wrong on the law, and this case has far-reaching implications for the Internet as we know it today. EFF was supported on the mission by the Center for Democracy & Technology (CDT), the Foundation for Individual Rights and Expression (FIRE), Public Knowledge, Reason Foundation and the Wikimedia Foundation.

At issue is the panel’s misapplication of First Amendment precedent. The First Amendment protects publishers’ editorial decisions about whether and how to display content, such as the videos TikTok shows users through its recommendation algorithm.

Additionally, because common law allows publishers to be liable for other people’s content they publish (e.g., defamatory letters to the editor in print newspapers), Congress also passed Section 230 to shield online platforms from the First Amendment’s limited protections Liability to protect harmful user-generated content.

Section 230 has been crucial to the growth and diversity of the Internet – without it, Internet intermediaries would potentially be liable for any content posted by users, making it less likely that they would provide open platforms for third-party opinion.

In this case, the Third Circuit panel incorrectly concluded that TikTok’s endorsements of user videos amounted to first-party speech by TikTok because TikTok enjoys First Amendment protections for editorial decisions and is therefore ineligible for immunity under Section 230 . In our letter, we argued that First Amendment protections for editorial decisions and Section 230 protections are not mutually exclusive.

We also argued that the panel’s decision is inconsistent with what all other circuits have found: that Section 230 also immunizes the editorial decisions of Internet intermediaries. We have made four main points in support of this argument:

• First, the panel ignored the language of Section 230 because editorial decisions are included in the commonly understood definition of “publisher” in the statute.
• Second, the panel created a loophole in Section 230 by allowing plaintiffs harmed by user-generated content to circumvent Section 230 by focusing on an online platform’s editorial decisions about the presentation of that content.
• Third, it is critical that Section 230 protects editorial decisions despite the additional First Amendment protections because Section 230 immunity is not only a defense against liability, but also a way to end litigation early. Online platforms could ultimately win lawsuits on First Amendment grounds, but the time and expense of protracted litigation would make them less interested in hosting user-generated content. Section 230’s immunity from suit (as well as immunity from liability) furthers Congress’s goal of broadly encouraging expression online.
• Fourth, TikTok’s recommendations are explicitly part of a publisher’s “traditional editorial functions” because recommendations reflect decisions regarding the display of third-party content and are therefore protected by Section 230.

We also argued that upholding the panel’s decision would harm not only internet intermediaries but all internet users. If internet intermediaries were responsible for recommending or otherwise deciding on third-party content posted on their platforms, they would end meaningful content curation and engage in strict censorship to remove anything that could be legally problematic from their platforms. These responses to a weakened Section 230 would significantly restrict users’ freedom of expression online.

The entire Third Circuit should recognize the error of the panel’s decision and reverse it to preserve free speech online.