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TikTok - legal concerns over fast-growing video app

Posted on 29 November 2019 by Carter-Ruck


TikTok, an online application where you create and share short videos, has been in the news this week following a widely-criticised decision by the Chinese-owned company to suspend a user's account after she posted about China's treatment of the Uighur Muslim population.

If you have teenage children or are otherwise young at heart, you may already be familiar with the app, which is growing fast and raises a host of legal and reputational concerns for users - and their parents.

For the uninitiated, TikTok is a social media app used for creating and sharing short videos of less than 60 seconds with the TikTok community - encompassing everyone on the app, as opposed to your agreed 'followers' as is typical on other social media platforms. The app offers videographers the opportunity to set their creations to music and add special effects before posting. Tiktok gained huge popularity in 2018, one year after its 2017 launch, and hit one billion downloads globally in February of this year. The set-up of the app, the content of the videos and the users themselves give rise to a number of potential legal issues.

TikTok's various legal issues to date (Tencent lawsuits, data protection fines in the US, brief bans in India and Indonesia relating to child safety on the platform) are often exacerbated by the fact that the average user age is 16, and that many much younger users bypass the 13 year old age limit. A BBC study from April revealed a significant quotient of TikTok users are below the required age, and that some of those posting and interacting on the app are as young as 9. The app has received criticism for being slow to responds to users reporting content.

Data Protection

TikTok was fined $5.7 million by the US Federal Trade Commission in February of this year for illegally collecting the data of its young users and now faces an investigation by the UK Information Commissioner's Office into how TikTok collects and uses data, in particular that of the children using the app. There are further concerns regarding the open messaging service embedded in the app which does not provide any additional safeguarding on a child's account versus an adult's. The UK's ongoing investigation queries whether the company could be violating the General Data Protection Regulation ("GDPR") Recital 38 which merits "specific protection with regard to [children's] personal data, as they may be less aware of the risks, consequences and safeguards concerned and their rights in relation to the processing of personal data".

A claim under the GDPR circumvents some of the limitations inherent in other actions such as defamation; there is no requirement to show that serious harm has been done to the reputation of the claimant, and no requirement to show that England and Wales is the most appropriate place to bring such a claim, although other jurisdictional considerations apply. This is clearly relevant in the case of TikTok whose slightly murky Chinese origins bring complications to budding legal complaints. Additional benefits include the range of remedies under the GDPR, such as the right to erasure (Article 17) and the right to object to processing (Article 21). Depending on the information held, and on whom, it may be important to be able to tailor your remedy.

Breach of Privacy, Harassment and Common Assault

The nature and content of many TikTok videos provide for legal concern; it is not uncommon to see videos on the app where those involved or captured might object to being published. In the UK, protected rights include that of a right to respect for your family and private life. This can include a variety of aspects such as information relating to your health, sexual orientation, religion and more.

The content of popular TikTok videos often include pranks performed on unsuspecting members of the public. One such prank involves dropping a bucket over someone's head. Whilst it may seem amusing, there is a real possibility for those afflicted to consider this harassment or common assault. Clearly, these claims are strengthened by the act itself being caught on video and published.

Clearly there are issues with both the set-up and the use of TikTok around the world, but these are applicable to existing social media platforms and will likely give rise to future regulation. The conclusion of the UK's ICO investigation should shed further light on ongoing and future data protection claims in relation to TikTok.

By Amber Courtier, Carter-Ruck



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