Rokita
An Indiana judge on Thursday denied the state’s motion for a preliminary injunction in its lawsuit against TikTok and parent company ByteDance.
Allen County Superior Court Judge Craig Bobay said in his ruling that the state hasn’t “shown a reasonable likelihood of success on the merits at trial” and “is not likely to prevail in its attempt to enjoin the defendants from making the complained-of representation” regarding the app.
Bobay additionally said the court lacks jurisdiction over TikTok and its parent company, meaning the state is not entitled to an injunction.
The next hearing in the case is scheduled for June 6 in Allen Superior Court. The state can appeal the decision.
Indiana Attorney General Todd Rokita filed a pair of lawsuits in December against TikTok and its owner, Chinese company Bytedance. They are the first state suits against the company.
Rokita claims the social app misleads its consumers about the level of inappropriate videos that are viewable by children, and that it collects “reams” of sensitive data on consumers. He also alleges that TikTok encourages kids to commit vandalism.
“The TikTok app is a malicious and menacing threat unleashed on unsuspecting Indiana consumers by a Chinese company that knows full well the harms it inflicts on users,” Rokita said in an earlier statement.
Too young for TikTok?
Attorneys for both parties appeared in court March 3 for a hearing on the state’s motion for preliminary injunction.
The state sought to prohibit TikTok from engaging in “illegal and deceptive consumer practices” in its Apple App Store description. They alleged that TikTok improperly cites its content as “infrequent” or “mild” when referring to videos on the app that contain profanity, crude humor, mature or suggestive themes, alcohol, tobacco, drug use and sexual content or nudity, according to court filings.
The attorney general’s office said the app should instead be described as containing “frequent” or “intense” depictions of such content, which would increase the minimum age restriction to download the app to 17 years old. Currently, TikTok’s age rating is designated for users 12 years old.
They pointed to the Google Play and Microsoft stores, where TikTok has a “T for Teen” rating.
During the hearing, the court heard from five witnesses about whether the app’s practices inflict harm.
Indianapolis clinical psychologist Dr. Megan O’Bryan — one of three witnesses for the state — said she was concerned about “hypersexualized” social media content.
The psychologist explained that teenagers’ frontal lobes are not yet developed, so they have less ability to regulate their usage of the app, and persistent usage can lead to significant exposure to “hypersexualized videos.”
She cautioned that TikTok can normalize sexualized videos and lead teen girls to create such content. That could lead teen boys to move on to view pornography, she added.
Also testifying for the state, University of Southern California professor Jon-Patrick Allem referred to his study of 194 TikTok videos, which found that almost 70% of the videos had a “neutral” sentiment toward substance use. Another 25% were “positive” toward substance abuse, and about 6% of the videos were “negative” toward substance use.
Statistics and research expert Charles Cowan — a witness for TikTok — pushed back on Allem’s study, however, saying his methodology was biased and contained mathematical errors.
Tracy Elizabeth, TikTok’s head of family safety and development health, added that the vast majority of content on TikTok is “safe, affirming, healthy, and suitable for users of all ages,” court documents show.
The app uses human and artificial intelligence moderators to identify violations of its Community Guidelines, including depictions of nudity and sexual intercourse.
Elizabeth said that between July and September 2022, 110 million videos were removed from the platform for policy violations, although 11 million of those videos had been viewed prior to removal.
In his ruling, Bobay found the state failed to prove TikTok made false or deceptive representations.
“The Court concludes that TikTok operating an online service that is available in Indiana and all other states is not sufficient to establish specific jurisdiction, when it is being sued over responses made to the App Store’s questionnaire,” Bobay wrote.
The court agreed with TikTok that terms like “mild” or “intense” used to describe the frequency of certain content are “subjective.”
“The Court concludes that the State has failed to establish that TikTok made a false or otherwise deceptive representation when it identified the relevant content categories as ‘infrequent’ in response to the App Store’s question regarding their ‘level of frequency’,” Bobay continued. “The State has not carried its burden to show the falsity of TikTok’s representation that the content categories appear ‘infrequently,’ especially when comparing the relatively small amount of allegedly suspect content to all of the content appearing on TikTok.”
Bobay’s order noted, too, that Indiana consumers download the app for free, so there is no consumer transaction for gaining access to TikTok. He said it’s not clear if the state’s Deceptive Consumer Sales Act (DCSA) covers free apps.
“If the Indiana legislature wants the DCSA to apply to such a common activity as downloading free apps, it can easily do so by amending the definition of ‘consumer ‘transaction’ to include the act of downloading a free app,” the judge wrote.
Background on the lawsuit
Rokita maintains that TikTok sends sexualized or other adult content to young users despite claiming it’s appropriate for teens.
The app’s algorithm “serves up abundant content depicting alcohol, tobacco and drugs; sexual content, nudity and suggestive themes; and intense profanity. TikTok promotes this content regardless of a user’s age, which means that it is available to users registered with ages as young as 13,” the suit claims.
The complaint contrasts TikTok’s U.S. app with its Chinese counterpart, Douyin, which requires users to verify their real names and use the app for 40 minutes or less if they’re under 14.
“An essential part of TikTok’s business model is presenting the application as safe and appropriate for children ages 13 to 17,” Rokita’s office said.
If TikTok were honest about how much drug, alcohol and sexual content appears on the platform, it wouldn’t qualify for a “teen” rating in app stores, and far fewer young people would use it, the suit contends.
By Casey Smith. The Indiana Capital Chronicle is an independent, not-for-profit news organization that covers state government, policy and elections.
