Parents fight to preserve content moderation suit against Google, TikTok

SAN JOSE, Calif. (CN) — 15-year-old Mason Bogard died playing the “blackout challenge” — a trend on YouTube and Tiktok where kids choke themselves until they pass out. The Indiana teen’s 2019 death was ruled an accidental strangulation, according to the local coroner’s office.

His mother, Joann Bogard, blames YouTube and TikTok for not having better content moderation.

Bogard and other parents fought in federal court on Tuesday to keep a product liability class action against YouTube and TikTok alive, accusing the video platforms of misrepresenting their reporting tools for harmful content. The parents claim that these moderation tools could have prevented their children’s death and others like it, if they had been more effective.

“The defendant’s 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 in a Tuesday hearing.

The parents’ 2023 lawsuit filed in federal court in the Northern District of California challenges the platforms’ content reporting features, which they claim are “incapable” of reviewing and responding to user reports.

In court documents, they accuse 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.

The parents said that following their advocacy efforts to report harmful materials on each platform so that other children wouldn’t suffer the same fate as their own, staring down such a random reporting process “retraumatized” them, especially after receiving canned responses to a significant number of their reports.

However, both YouTube and TikTok argued to dismiss the case, saying that the parents’ issues were less with the product and more that they disagreed with their 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 the judge.

Both companies have 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 was imperfect, they argued, it was still protected under Section 230 of the Communications Decency Act, which shields online businesses and social media platforms from liability for content posted by users.

Part of the lawsuit’s struggle right now is that the parents don’t actually know how YouTube and TikTok’s algorithms are actually designed. While the video platforms have publicly shared some general information about how the process works, the specifics of its ranking and recommendation system haven’t ever been fully disclosed to the public.

As a result, the parents have had to rely on their own testing of the algorithm to substantiate their claims.

“And that is the only way that we can see at the moment outside is through these very arbitrary decisions that actually have no alignment with the decision-making policies that the defendants have put out there,” Han said.

U.S. Magistrate Judge Virginia K. DeMarchi seemed doubtful that the parents properly highlighted a harm for the court to address.

“I’m not sure that kind of harm is actionable in all of these causes of action that you’ve described — frustration because a tool is not working as you expect and hope and believe it should,” DeMarchi said.

The judge did not indicate when she would issue a ruling.

Han told Courthouse News that she hoped the court will recognize the “nuanced ways” that consumers can be harmed on social media platforms in its decision.

“A ‘safety tool’ offered to children that fails 95% of the times should be called a defective product and cannot be excused under Section 230,” Han said in an email. “This is not a content decision, it is purely a malfunctioning tool that is misrepresented to the consumers with a veneer of safety.”

Spokespersons for Google and TikTok did not respond to a request for comment by press time.

The parents are seeking an injunction requiring both platforms to institute more robust moderation tools and more than $5 million in compensatory damages, as well as more in punitive damages to be determined at trial.