TikTok faces the music on both sides of the Atlantic, but the US and EU are playing different tunes
The US and EU have taken wildly different approaches to platform regulation, and TikTok is feeling the effects of both this week
By the end of this week, short-form video platform TikTok will have received an ultimatum from both the US Government and the European Commission. The US will give TikTok’s Chinese parent company ByteDance a year to either divest its holdings in the platform or face an outright ban in the country, as part of a bill that has sailed through the House and Senate, and is expected to be signed by President Joe Biden. The Commission, meanwhile, yesterday gave TikTok a final 24 hour window to provide “proof of safety” of its new TikTok Lite app, which financially incentivises users to engage with more content and creators. Otherwise it will suspend the new app’s reward system.
On the surface these two cases appear similar. Each involves a government telling the platform operator to “do this… or else”. But dig deeper and key differences emerge. The US is taking a “shoot from the hip” approach by adopting legislation crafted specifically at TikTok, as an “application controlled by a foreign adversary”, while the EU is applying existing legal procedures to a concrete problem with the platform’s actual functionality. At the risk of drawing grand cross-continental lessons from a single case, I think this reflects something about differences between American and European cultures of technology policymaking.
The American ultimatum: sell or go
TikTok has long been an awkward part of the American social media landscape. Not for its 170 million users, who it seems can’t get enough of it (more on that below). But TikTok is a subsidiary of ByteDance, a Chinese-operated and part-Chinese-owned company who also operates Douyin, a similarly wildly popular app, for the domestic Chinese market. These facts alone are enough to have put the US side of the ByteDance business in the crosshairs of policymakers, against the backdrop of rising tensions between the US and China as a whole.
Facing this pressure, ByteDance has taken various steps to try to insulate TikTok. The platform has its own CEO, Shou Zi Chew, who is Singaporean—a salient fact that seemed to escape the notice of certain members of the House Energy and Commerce Committee who probed him for his links to the CCP. TikTok LLC is incorporated in California, like many an all-American tech firm, and even developed the not-so-subtly-named “Project Texas” to transfer the hosting of Americans’ data to the US company Oracle and host content moderation functions within the US. These were designed to allay concerns about Chinese measures such as the National Intelligence Law, which requires Chinese organisations to support national intelligence work, and a broader fear that Beijing could seek to manipulate TikTok’s algorithm to deliver pro-Chinese or anti-American content to users.
These concerns are, mostly, theoretical—though headlines such as “TikTok tracked UK journalist via her cat's account” haven’t exactly helped with the company’s PR efforts. Nor did a recent attempt to enlist TikTok users to contact their congressional representatives and urge them to back off legislation targeting the platform—which led to threatening calls and seems to have backfired, given the large margin by which the bill passed Congress. But critics of the bill argue that it reflects merely a self-interested desire on the part of the US government for all popular platforms to have American owners and operators, and thus, to fall more clearly within the orbit of US influence and implicitly its surveillance. Certainly, by expressly identifying ByteDance as a “foreign adversary controlled application”, the US bill shares with the UK’s recent Rwanda legislation the idea that lawmaking can be used to make a subjective opinion—“TikTok is controlled by a foreign adversary”, “Rwanda is safe”—a fact for the purpose of enacting a wider policy measure. Regardless of its merits or justifications, the TikTok divest-or-ban bill involves the US government picking winners—or in this case, a loser. And while today’s target has close ties with America’s foremost geopolitical rival, as Meredith Whittaker argues, tomorrow’s target could be more benign.
The European ultimatum: tell or go
The European Commission’s approach is altogether different, reflecting a divergent legal and political culture but also the cold hard truth about the dominance of non-European platforms mediating European life. Start with the law: the Commission’s threat is grounded not in a novel, target-specific parliamentary assertion, but instead in the Digital Services Act (DSA), passed in 2022 after much wrangling and in force since last year. The DSA lays out a set of gradated responsibilities for online platforms depending on their size and reach in the continent. TikTok, along with many large American and a handful of European counterparts, received the designation of Very Large Online Platform (VLOP), which accords it the most strenuous set of obligations. This includes the requirement to conduct proper risk assessments and make reasonable attempts to mitigate these risks, both on a regular basis, and “prior to deploying functionalities that are likely to have a critical impact on” a series of risks (italics mine). By formally launching proceedings against TikTok Lite, the Commission alleges that TikTok may be in breach of these specific regulations.
TikTok Lite, by the way, is a new app launched this month in France and Spain, which rewards users with goodies such as Amazon vouchers for undertaking what the company rather joylessly calls “video watch tasks”. In addition to watching more videos, tasks also include engaging with content creators and inviting friends to join the platform. The EC’s Digital Commissioner Thierry Breton did not mince words about TikTok Lite, claiming that the app may be “toxic and addictive”. But the difference between Breton’s perhaps alarmist rhetoric and similarly dark if substantively different warnings emanating across the Atlantic is that Breton and the EC have existing statute and clear enforcement procedures on which to base their case. Part 1(d) of Article 34 of the DSA explicitly identifies “serious negative consequences to [a] person’s physical and mental well-being” as a “systemic risk” that TikTok, as a VLOP, must take into consideration. And TikTok was already under Commission scrutiny in a separate probe concerning its protection of minors.
All this amounts to a serious, albeit less immediately existential, problem for TikTok in Europe. The EC’s ultimatum demands only that TikTok “bring arguments in its defence which the commission will carefully assess” in its judgment. But the stakes are high: TikTok Lite faces a ban in Europe unless the company can persuade the Commission of its safety.
The ultimatum game
This contrast casts the EU’s forensic proceduralism in a better light than the US’s more improvisational legislative approach. Several steps that the EU has painstakingly taken over the past several years—drawing up and enacting the DSA; developing a voluntary framework or “nursery slope” for platforms to adjust to its provisions ahead of enforcement; identifying TikTok as a VLOP based on objective criteria; and opening formal proceedings after initial enforcement failed—give its Digital Commissioner’s probe into the app’s “toxicity” and “addiction” a standing start, with legal legs to stand on. By contrast, the US bill was packaged in a wider set of measures wholly unrelated to TikTok or tech, including military funding for Ukraine and Israel, and was passed during a late-night vote following rare bipartisan compromise. Crucially, if and when the bill becomes law, TikTok may yet seek relief through the courts and the First Amendment right to free expression; just months ago, a District Judge blocked a planned ban on TikTok by the state of Montana on free speech grounds. But a late reprieve would not alter the basic contrast in digital policymaking—a comparison which proves unflattering to the US in this case.
However, there’s an important factor that helps explain Europe’s apparently more rigorous approach to regulating big tech, and which arguably reflects just as much self-interest as American efforts: Europe doesn’t have much home-grown big tech. Though a smattering of European platforms are considered VLOPs (including at least one porn provider), none of the very very large platforms are European in origin, operation, or majority-ownership. As a result it’s perhaps politically easier for the EU to cast a wider and less discerning net over big tech as a whole—American, Chinese, or otherwise—and go after any platform that falls short.
While TikTok is facing the music on both sides of the Atlantic, the different charges and tactics used against it suggest that regulatory harmony may be some way off. In the meantime, it has not one but two regulatory battles to fight.±