Lawsuit Against TikTok Claims Two Minor Children Died While Performing the “TikTok Blackout Challenge”

The parents of two children recently brought suit in Los Angeles against social media giant TikTok. In their complaint, the parents allege that the children, aged eight and nine, died while performing the “TikTok Blackout Challenge,” which it describes as “videos featuring users who purposefully strangulate themselves until losing consciousness.”

The plaintiffs’ theory of the case is that TikTok is a product “designed to be used by minors and is actively marketed to minors across the United States.” The social media company “designed its product to be addictive to young users” and, according to a recent Wall Street Journal report, “TikTok relies heavily on how much time users spend watching each video to steer them toward more videos that will keep them scrolling, and that process can sometimes lead young viewers down dangerous rabbit holes, in particular, toward content that promotes suicide or self-harm.”

In other words, plaintiffs seek to hold TikTok liable for the design of its app, which the company allegedly knows will addict young users and steer them to harmful conduct such as the Blackout Challenge. Liability is also premised on TikTok’s alleged failure to “warn[] users or parents regarding the addictive design and effects.” Thus, the complaint brings the same type of claims an injured consumer would against the manufacturer of, say, an unsafe tool or appliance. In general, manufacturers are strictly liable for unreasonably dangerous products they place on the market, and for the failure to provide adequate warnings about certain dangers.

I note here that Section 230 of the federal Communications Decency Act bars any legal claim that would treat a “provider … of an interactive computer service … as the publisher or speaker of any information provided by another information content provider.” Thus, to the extent plaintiffs’ claims are read to hold TikTok liable as a publisher of the harmful content, they will be barred. The plaintiffs, however, have presented their claims in a manner resembling those the Ninth Circuit allowed to proceed in a previous case, which accused another major social media app of being a negligently designed product that encouraged users to engage in risky behavior. TikTok’s lawyers will most certainly move to dismiss the case under Section 230, and the court will have to decide whether the plaintiffs’ claims are barred by it.

By the way, the “Blackout Challenge” is apparently not the only bad idea on TikTok. According to the plaintiffs’ allegations, “[t]here have been numerous dangerous TikTok challenges that TikTok’s app and algorithm have caused to spread rapidly, which promote dangerous behavior.” The complaint claims these include the following:

• Fire Mirror Challenge – involves participants spraying shapes on their mirror with a flammable liquid and then setting fire to it.
• Orbeez Shooting Challenge – involves participants shooting random strangers with tiny water-absorbent polymer beads using gel blaster guns.
• Milk Crate Challenge – involves participants stacking a mountain of milk crates and attempting to ascend and descend the unstable structure without falling.
• Penny Challenge – involves sliding a penny behind a partially plugged-in phone charger.
• Benadryl Challenge – involves consuming a dangerous amount of Benadryl in order to achieve hallucinogenic effects.
• Skull Breaker Challenge – involves users jumping in the air while friends kick their feet out from underneath them, causing the users to flip in the air and fall back on their head.
• Cha-Cha Slide Challenge – involves users swerving their vehicles all over the road to the famous song by the same name.
• Dry Scoop Challenge – involves users ingesting a heaping scoop of undiluted supplemental energy powder.
• Nyquil Chicken Challenge – involves soaking chicken breast in cough medicine like Nyquil and cooking it, boiling off the water and alcohol in it and leaving the chicken saturated with a highly concentrated amount of drugs in the meat.
• Tooth Filing Challenge – involves users filing down their teeth with a nail file.
• Face Wax Challenge – involves users covering their entire face, including their eyes, with hot wax before ripping it off.
• Coronavirus Challenge – involves users licking random items and surfaces in public during the midst of the global COVID-19 pandemic.
• Scalp Popping Challenge – involves users twisting a piece of hair on the crown of someone’s head around their fingers and pulling upward, creating a “popping” effect on their scalp.
• Nutmeg Challenge – involves users consuming dangerously large amounts of nutmeg with the aim of achieving an intoxicating high.
• Throw it in the Air Challenge – involves users standing in a circle looking down at a cellphone on the ground as someone throws an object into the air, and the goal is to not flinch as you watch the object fall on one of the participant’s heads.
• Corn Cob Challenge – involves users attaching a corn cob to a power drill and attempting to each the corn as it spins.
• Gorilla Glue Challenge – involves users using a strong adhesive to stick objects to themselves.
• Kiki Challenge – involves users getting out of moving vehicles to dance alongside in the roadway.
• Salt and Ice Challenge – involves users putting salt on their skin and then holding an ice cube on the spot for as long as possible, creating a chemical reaction that causes pain and can lead to burns.
• Snorting Challenge – involves users snorting an entire latex condom into their nose before pulling it out of their mouth.
• Hot Water Challenge – involves users pouring boiling hot water on someone else.
• Fire Challenge – involves users dousing themselves in a flammable liquid and then lighting themselves on fire.

Definitely not the best use of social media.