The danger of TikTok’s viral challenges and its legal limits

The danger of TikTok’s viral challenges and its legal limits

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The danger of TikTok’s viral challenges and its legal limits

A woman files her teeth as part of a viral challenge supposedly to achieve perfect teeth.

File your teeth at home, selectively apply sunscreen to your face, or pour water into boiling oil. These are some of the latest viral challenges on TikTok practiced by young people around the world, putting their health in danger in order to have fun or show off on networks. Some of them can have serious consequences, even fatal, as in the suicidal game of the Blue Whale. The spread of this type of evidence has become a difficult risk to control. However, not everything goes. Despite being a controversial issue, its promoters may face civil and criminal liability for damages caused.

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To begin with, we must distinguish harmful challenges, but without bad intentions, from those that invite users to commit suicide, self-harm or hurt someone. Among the latter, the one known as La hunt del pijo, consisting of accumulating attacks on young people from wealthy neighborhoods, or the video that encourages the rape of women one day a year. They are challenges that cross all red lines and that can be criminally prosecuted. Although, as Pablo Lightowler-Stahlberg, a criminal lawyer at Oliva-Ayala Abogados, explains, the biggest problem is that its creator can seldom be identified, to which is added the difficulty of judging the facts “when their origin is in other countries”.

The promoters of extreme challenges or games that incite the participant to take his or her own life can be punished by inducing suicide, “as long as said result is intentional,” the lawyer points out. That is, cases such as those that occurred recently in Italy and Venezuela, where two minors have died as a result of carrying out the Blackout Challenge, a challenge consisting of blocking breathing until loss of consciousness, would be excluded, because they are not directed at the death of participants.

However, after a recent reform, the law punishes with up to three years in prison those who intentionally encourage or incite self-harm or deliberately promote eating disorders among minors or the disabled. On the other hand, it does not require that suicidal games be directed towards a specific person, as is required if the victim is of legal age.

The participation of minors in challenges aggravates the matter. When the person who accepts the challenge is of legal age, explains Lightowler-Stahlberg, “the criminal responsibility of the hypothetical provocateur or inducer is generally excluded by the self-endangerment in which the victim himself places himself.” That is, it is presumed that you have freely decided to submit to the risk involved in the test and assume the consequences. However, the acceptance is not considered valid when the person who is injured has not yet reached the age of eighteen.

But, beyond criminal law, could compensation be claimed for the damages suffered by imitating these videos? For Eugenio Llamas, professor of Civil Law and managing partner of Llamas Abogados, as long as the content is lawful, this is only feasible when the injured party has not consciously and voluntarily put himself in danger. In these cases, the lawyer believes, “it must be admitted that the damages that are deliberately wanted by the author and, therefore, are not susceptible of compensation.” In addition, he adds, the negligent intervention of those affected weighs in the decision on compensation for the damage, both to exclude it and to reduce it.

Efrén Díaz, lawyer and head of Technology at the Mas y Calvet Law Firm, sees, on the other hand, other legal loopholes. If promoters are considered as service providers and participants as consumers, the former, in general, “will be liable for damages caused by defective services.” Therefore, says Díaz, in the event that someone suffers a problem for following any of the challenges proposed on social networks, “they can claim directly from their creators.” The difficult thing will be to prove that the defendant was the “agent” who caused the damage.

The jurisprudence on liability for harmful services “is very varied and conditioned by specific cases,” assumes Díaz. In the United States, the death of a 15-year-old teenager from following the Benadryl Callenge set off all alarms last year. It was about ingesting said antihistamine to upload a video with the hallucinogenic effects it causes. The drugmaker was quick to issue an alert message to parents and engaged in conversations with TikTok to withdraw the challenge.

And it is that, demanding responsibilities from the platforms that host this content is not easy. As Aitor Prado, a lawyer specialized in new technologies, explains, to the extent that they play a mere intermediary role “they will be exempt from responding for this type of damage.” Another thing would be if they promoted the challenge “taking sides with it.”

Social networks could also have to respond, adds Lightowler-Stahlberg, if, despite banning criminal content, they do not delete it “as soon as they are aware of its existence.” In fact, a Spanish court has already condemned Google INC (as the owner of YouTube) as subsidiary civil liable for a crime against moral integrity committed by a user. It was a video in which, by covering an advertisement for Ikea, he simulated that the minor protagonist was shot in the head.

Although in this case the sentence was never carried out, since it was revoked by the Constitutional Court, the lawyer predicts: “It may not be a long time that we will see resolutions that hold a platform or social network responsible for the damages caused as a result of some content uploaded to them ”.

Not so miracle diets

Social networks have viralized nutrition gurus who use these platforms to give health advice or miracle diets. Several professional associations have already warned about these practices, since they can threaten people’s health. As the jurist Aitor Prado points out, there could be a case of “certain intrusion” if the streamer or instagramer substitutes the services of a professional without being qualified for it. Even, warns the criminal lawyer Pablo Lightowler-Stahlberg, they could respond for the crime of injury or reckless homicide if, presenting themselves as experts, they promote behaviors as harmful as drinking water with bleach.