On 23 March 2023, TikTok CEO Mr. Chew had to appear before US Congress and was grilled during a more than five-hour testimony. There is a lot to say about the unique political spectacle it was. A lot of media focuses on the potential consequences of this testimony and how Chew’s inability to provide assurances to the Congress men and women may ease the path of legislative ban or a forced sale in the US.
Stichting Take Back Your Privacy (“TBYP”), together with law firm Scott+Scott, assisted in the preparation for the hearing and inter alia made suggestions for the questions to be posed to Mr. Chew. In 2021 TBYP, in collaboration with the Dutch Consumer Association the Consumentenbond, started a collective damages action against TikTok in the Netherlands on behalf of underaged users of TikTok.
TBYP has identified five important take-ways from the Congressional hearing, not relating to a ban or any other potential political measures. These take-aways show the importance of the Dutch litigation and, more generally, why parents should be aware of the risks when their children are on TikTok.
1. TikTok is making some improvements to the TikTok App, but only in the US
In an attempt to avoid a ban or any other drastic measure by the US government, TikTok recently made various alleged improvements to its TikTok App and data storage/collection.
One of these improvements is that TikTok introduced different versions for different age categories under the age of eighteen. In the US, TikTok introduced an “under 13 experience” with – according to Chew in its statement – “zero advertising” on that version. However, this “under 13 experience” was only introduced in the US. Whilst officially TikTok is not available in the Netherlands under the age of 13, the numbers show that in fact hundreds of thousands of children under the age of 13 do use TikTok in the Netherlands. Unlike children in the US apparently, children under the age of 13 are being subjected to targeted advertising in the Netherlands (causing TikTok to breach consumer protection and privacy laws).
2. Pressure from government or coming from litigation is effective
The second take-away follows from the first and that is pressure on TikTok, whether it is coming from governmental organizations or litigation, is effectively forcing TikTok to make improvements to the App and enhance safety.
In TBYP’s opinion, these improvements should also be implemented in the Netherlands. In addition, the changes do not take away the fact that TikTok is still not compliant on many points.
3. TikTok can be harmful to children in many ways
What became very clear during the extensive questioning is that there is a long list of safety issues and potential harmful effects related to the use of TikTok on children. Here is a non-exhaustive list of examples. First, a well-known issue is that on TikTok various challenges are being promoted (for example the Black-out challenge), which have resulted in personal injury and even death. Second, TikTok gets to know its (minor) users very well due to its extremely powerful algorithm. This allows TikTok to provide content fueling a child’s vulnerabilities, e.g. relating to eating disorders or depression. Third, the addictiveness of TikTok and the problematic long use have a negative impact on sleep and the mental health of children in general. Fourth, there is a lot of misinformation being spread on TikTok, for example in relation to alleged dangers of the COVID vaccination.
4. TikTok tries to shift its responsibility on safe use to the users themselves
A fourth take-away is that TikTok tries to shift the responsibility of safe use to the users (and in case of children: to their parents) themselves. Comparable to for example the tobacco industry, that has long used narratives of user-personal-responsibility and free-choice, TikTok also refers to the parents for safe use of TikTok by their children.
TikTok recently introduced family pairing tools so that parents can participate in their teens’ experience and make the choices they think are right for their family. However, in order to access family pairing, parents must also download the TikTok App onto their phone. During the hearing, Chew encouraged parents to enter into conversations with their children about time limits and safe use of the App. But TikTok itself should ensure safe use and offer a service that is compliant with privacy and consumer laws.
5. Extensive data collection: TikTok may know more about your child than you
As became apparent from the hearing, there is not a lot that TikTok doesn’t know about its users, including minors. TikTok collects a tremendous amount of data in order to get a good profile of a child. When this profile, which includes a child’s interests, has been put together, TikTok can offer the right content to keep the child on TikTok for as long as possible.
Importantly, TikTok does not only gather information about a user inside the App but also outside the App. For example, TikTok also collects information about its users from other publicly available sources. Chew was however not able to answer the question why the collection of non-TikTok data (so data collected elsewhere) was needed to provide the TikTok service. And when asked whether China could use all these data to spy on American TikTok users, Chew responded by saying that “I don’t think the spying is the right way to describe it”. In conclusion: TikTok knows a lot about its users and it is unclear what TikTok actually does with that data.