Judge rules TikTok must face class claims over speech restrictions

A prospective class action against the company behind TikTok will move forward in Los Angeles County Superior Court after a judge ruled that the social media giant is not federally or constitutionally protected in a lawsuit alleging that the site's terms of use unlawfully restrict user speech.

The class allegations echo similar claims in a case against Paramount Global, which successfully demurred without leave to amend in another Los Angeles Superior Court department just days earlier.

Judge Laura A. Seigle overruled the demurrer from TikTok on Wednesday, rejecting arguments that the claims are barred by California Civil Code Section 1670.8, also known as the "Yelp Law." It prohibits subjecting users to terms containing a clause that waives the consumer's right to make any statement, positive or negative, about the seller, its employees or its services.

"Nothing in Section 1670.8 prevents defendants from removing, altering or posting material on their website," Seigle ruled. "Nothing in the statute prevents defendants from having rules that prohibit certain speech on the website.

"The [first amended complaint] does not seek to hold defendants liable for permitting or prohibiting speech, but for requiring certain terms in a contract for the purchase of products from the TikTok Shop. Plaintiffs' claims do not implicate defendants' First Amendment right," she continued.

Singleton Schreiber attorney Andrew D. Bluth of Sacramento represents plaintiffs in both cases.

Defendants in the TikTok case are represented by McDermott Will & Schulte attorneys James J. Hawk, Irene L. Azcarraga, Erica B. Lang and Arianna R. Swazer in Los Angeles.

Counsel for the parties did not respond to phoned or emailed requests for comment by press time on Thursday.

Plaintiffs allege that TikTok, also known as TTI in court documents, included unlawful provisions within the contractual terms governing purchases through the TikTok Shop, allegedly seeking to prevent California consumers from making disparaging statements regarding TikTok or its products, thereby muzzling or chilling consumer criticism. Hagen et al. v. TikTok Inc. et al., 23STCV28623 (L.A. Super. Ct., filed Nov. 11, 2023).

"Pursuant to the Terms on the Platforms, Defendants told Plaintiffs and the Class members that they must agree to not make any statements that TikTok finds objectionable, or which may expose TikTok 'to any harm. . . of any type,'" an amended complaint filed in May read.

"The Terms also require purchasers to agree that they will not 'post a review about a Product that [the customer has] not purchased from a Merchant on TikTok Shop, including where [the customer has] purchased it elsewhere,'" the complaint continued. "The Terms further require customer to 'promise to [TikTok] that the content of [the customer's] review is accurate, is not misleading, and reflects [the customer's] genuinely held belief in respect of the relevant Product.'"

In a demurrer filed in September, the defense sought dismissal primarily on grounds of federal law, arguing that the claims were prohibited because they interfered with TikTok's editorial control over content under the Communications Decency Act, or CDA, which states, "No 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."

"TTI falls within the CDA's immunity here--i.e., as to content that TTI did not provide, create, or develop--because it provides an interactive computer service, which is 'any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server,'" the demurrer read, quoting from 47 U.S.C. § 230(f)(2); Winter v. Facebook, Inc., No. 4:21-CV-01046-JAR, 2021 WL 5446733, at *4 (E.D. Mo. Nov. 22, 2021).

However, Seigle differed on the application of the act, ruling that TikTok is not acting as a publisher under the law.

"Plaintiffs allege defendants required purchasers of products from the TikTok Shop to enter into purchase agreements containing terms contrary to California law," Seigle wrote. "In the context of selling products according to certain terms, defendant is not acting as publisher. Plaintiffs would have no claim if they merely alleged that defendants imposed terms of use of the website prohibiting the posting of certain types of materials."

Seigle's ruling contrasts with a Sept. 23 ruling by Judge David S. Cunningham III, which sustained a demurrer by Paramount Global on the grounds that non-disparagement clauses on its websites, including streaming platform Paramount+, do not violate the Yelp law. Sweeney et al. v. Paramount Global, 23STCV31038 (L.A. Super. Ct., filed Dec. 19, 2023).

"The purpose of the Yelp Law is to protect consumer statements regarding sellers or goods, particularly on third-party websites like Yelp. The challenged language in the [amended complaint] does not prohibit consumer speech on these external platforms," Cunningham ruled.

Bluth, plaintiffs' counsel in both cases, said plaintiffs in the Parmount case would appeal the ruling.

A hearing on class certification in the TikTok case is set for Aug. 24, 2026.