Judge dismisses content moderation suit against Google, TikTok

SAN FRANCISCO (CN) — A federal judge Tuesday dismissed a class action brought by parents who accused YouTube and TikTok of misrepresenting their reporting tools for harmful content.

Joann Bogard, the mother of 15-year-old Mason Bogard, who died playing the “blackout challenge” — a trend on YouTube and TikTok where kids choke themselves until they pass out — and other parents filed a class action against the platforms in 2023, challenging their content reporting features which they claimed are “incapable” of reviewing and responding to user reports.

The parents accused the companies of making “arbitrary and contradictory” decisions when it comes to moderation, which amount to deceptive business practices considering how the platform is marketed.

“As a platform primarily used by minor children, TikTok has a responsibility to prevent dangerous and fatal trends from thriving on its platform,” the parents said in their lawsuit.

U.S. Magistrate Judge Virginia K. DeMarchi granted the technology companies’ motion to dismiss all eight of the plaintiffs’ claims for failure to state a claim.

Addressing the plaintiffs’ product liability claim, DeMarchi said it was “difficult to escape the conclusion” that the design defect the plaintiffs describe is “bound entirely” to the platforms’ content moderation decisions.

As for the claim of negligence, DeMarchi found the platforms are not required to respond to user reporters in a certain way just because they have a reporting tool or solicit user feedback. She added that under California law, “there is no duty to avoid negligently causing emotional distress to another.”

“In short, plaintiffs have not identified any authority or source for the duty they ascribe to defendants, and they have provided the court with no analysis or argument that might support the existence of such a duty,” she wrote.

Considering the plaintiffs’ claims of negligent and fraudulent misrepresentation, DeMarchi found no reason to “reconsider the court’s prior determinations” over the challenged statements regarding the defendants’ policies and that the plaintiffs failed to state a claim on their own behalf with respect to TikTok’s Senate testimony.

She also found the defendants are protected from the majority of plaintiffs’ claims under Section 230 of the Communications Decency Act, which shields online businesses and social media platforms from liability for content posted by users, and the First Amendment, as content moderation is generally considered protected expressive activity.

“To the extent the court has concluded that defendants are entitled to Section 230 immunity for the statements and conduct plaintiffs challenge, for the same reasons, the court finds that such statements and conduct are also protected by the First Amendment,” she wrote.

In a July hearing on the motion to dismiss, the parents claimed the moderation tools could have prevented their children’s deaths and others like it if they had been more effective.

“The defendants’ failure here is putting out a tool that was incapable of facilitating a review, and the defects that are inherent in these tools that were offered to users were less than 5% accurate, which renders it useless,” Juyoun Han of Eisenberg Baum, who represented the plaintiffs, said during the hearing.

However, both YouTube and TikTok argued the parents’ issues were less with the product and more that they disagreed with the platforms’ moderation decisions.

“There are allegations of plaintiffs making reports acknowledging that videos are taken down in response to their reports. But the reports that they disagree with, the ones that they claim are a product defect, are only when they disagree with the content moderation decision,” Tiana Demas of Cooley, who represented YouTube’s parent company Google, told DeMarchi.

Both companies said they use a mixture of artificial intelligence and human moderators to weed out harmful content on their platforms. But, even if their content moderation is imperfect, they argued, it is still protected under Section 230.

DeMarchi dismissed the lawsuit without leave to amend, finding it “does not appear that any additional amendments could be made to address the deficiencies identified in this order and in the court’s prior order.” She previously granted the defendants’ motion to dismiss all claims in February, but allowed the plaintiffs to file an amended complaint.

In a statement to Courthouse News, Han said that the plaintiffs are “contemplating an appeal as we believe the decision does not address the defect in the reporting tool.”

A representative for Google or TikTok did not immediately respond to a request for comment.

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