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Section 230 & TikTok: Cultural Appropriation in the Digital Space

Section 230 & TikTok: Cultural Appropriation in the Digital Space

TikTok’s Algorithmic Bias

On September 25, 2019, Jalaiah Harmon, a 14-year-old dancer and social media creator, decided to create a post with her friend after school.[1] Harmon choreographed a sequence as she listened to the song “Lottery” by the Atlanta rapper K-Camp (later known as the “Renegade dance.”)[2] She filmed herself dancing the sequence, posted it on Instagram, and TikTok user @global.jones uploaded it to the platform, where the dance went viral.[3] Charli D’Amelio,[4] among many other TikTok influencers, posted a video of herself doing the Renegade dance.[5] D’Amelio became a “queen of TikTok” through the Renegade video while Harmon was not credited as the original creator.[6] Harmon’s effort to have influencers tag her was ignored.[7] Nicole Bloomgarden, creator of the Out West dance, went through a similar experience and was attacked after making herself known as the original creator of the dance.[8] Attacking comments included “You didn’t make this dance,” “Charli [DAmelio] made this dance.”[9] Harmon and Bloomgarden’s stories are not unfamiliar. The cycle of oppression, taking, and appropriating, has existed for a long period of U.S. history[10] and is now occurring in the digital space.

TikTok operates with a unique algorithm, called “collaborative filtering”[11] which creates a culture of its own.[12] Collaborative filtering refers to an algorithm that takes physical characteristics of a person’s profile picture and mimics such characteristics to make recommendations.[13] For example, if a TikTok user follows a white woman with blond hair, TikTok would populate recommendations of white women with blond hair.[14] If the user follows an Asian man with short black hair, other Asian men with short black hair would show up in the recommendations.[15] This facially neutral algorithm becomes a problem when TikTok’s largest users are white.[16] Visibility is essential in the creators’ market and TikTok’s collaborative filtering would provide creators of color less visibility than their white counterparts—thus, creators of color would receive less social and economic opportunities.[17]

How Section 230 Assists TikTok to be a Platform of Cultural Appropriation

The Communication Decency Act was enacted to “promote the continued development of the Internet.”[18] Section 230(c)(1) provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[19] The courts have applied this provision to grant blanket immunity to social media platforms like TikTok.[20] As long as the social media platform does not directly create and post contents, it is immune from liability under Section 230 and its failure to monitor and regulate content does not strip away such immunity.[21] Thus, TikTok would be immune from liability under Section 230 for any discriminatory effect of its algorithm.

Cultural appropriation happens when “practices, customs, or aesthetics of one social or ethnic group [are unacknowledged or inappropriately adopted] by members of another (typically dominant) community or society.”[22] Usually, the adopter from the dominant group benefits socially and economically and this benefit is one-sided.[23] Hence, cultural appropriation is inevitably closely related to power imbalance among various racial and ethnic groups. Section 230’s sweeping immunity allows TikTok’s algorithmic bias based on race and ethnicity and its discriminatory effect to continue to exist—encouraging cultural appropriation in the digital space.

Section 230 Reform Efforts

The discriminatory effect of TikTok’s algorithm and the broad application of Section 230 by the courts calls for reforms. As Annika Olson, the assistant director of policy research for the Institute for Urban Policy Research & Analysis, titled her recent article, “It’s Time to Hold Social Media Platforms Accountable.”[24]

A bill, Protecting Americans from Dangerous Algorithms (“PADAA”), was introduced in October 2020 to propose holding service providers liable if content is promoted by “algorithmic amplification” that leads to acts of terrorism.[25] In June 2021, the Disincentivizing Internet Service Censorship of Online Users and Restrictions on Speech and Expression Act (“DISCOURSE Act”) was introduced, which proposed imposing a broader liability on the service providers than PADAA for algorithmic amplification.[26] The DISCOURSE Act provides that a service provider “shall be deemed to be an information content provider” (therefore liable for its content) if it “amplifies information … using an algorithm to target the information directly to users… or engages in a pattern or practice of amplifying information … by using an algorithm … without the request of a sending or receiving user.”[27] In October 2021, A Bill To Repeal Section 230 of the Communications Act of 1934 was introduced to completely repeal Section 230, making the service providers liable for content posted on their platforms.[28]

These efforts, however, do not address the danger inherent to algorithms.[29] Perhaps a complete repeal of Section 230 may not be necessary, but it is necessary that the social media platforms and Congress pay more attention to the bias in algorithms that results in skewed results.

 

Footnotes[+]

Sylvia (Yoo Jin) Cheong

Sylvia (Yoo Jin) Cheong is a third-year J.D. student at Fordham University School of Law. She is a staff member of the Intellectual Property, Media & Entertainment Law Journal and an executive board member of the Fashion Law Society. She studied Civil Engineering (BASc) at the University of Toronto. Upon graduation, she started her legal education in South Korea and continued through the LLM program at the University of Toronto before starting her legal practice in Canada. She is admitted to the state bar of California and Alabama in the United States.