TikTok Under Threat in the United States and the European Union: What Are the Implications for Freedom of Expression?

I. Introduction

When the Chinese tech company ByteDance launched TikTok in September 2016, probably few predicted its meteoric rise: it took only two years for the platform to surpass established giants like Facebook, Instagram, Snapchat, and YouTube in downloads. As if that were not enough, TikTok surpassed one billion monthly active users in just five years, while Facebook and YouTube reached that figure only eight years after their respective launches. 

The most remarkable thing about the Chinese platform is not just its size: its transformative capacity is also surprising. Initially conceived as a platform for creating humorous and musical videos, over time TikTok evolved into what it is today, an unprecedented hybrid between a social media and search engine: despite its features being quite similar to those of, for example, Instagram, many of its users also turn to TikTok to search for the same information they would have previously googled.

It should not be surprising, then, that both due to its vast reach and its uniqueness, TikTok has begun to exert a significant influence on the contemporary digital landscape. It is true: with the increase in popularity came a larger number of users. But, parallel to this process, the increasingly frequent questioning of the Chinese platform's seemingly lax privacy and transparency policies (which, for example, allowed ByteDance to spy on journalists) has shaped a narrative aimed at discrediting its legitimacy. 

Broadly speaking, there are two types of accusations that flank TikTok: on the one hand, those that depict the platform as a surveillance tool of the Chinese government, and therefore consider its use a threat to national security, especially in the United States. In this regard, it is often claimed that TikTok's integrity, privacy, and transparency policies provide lower protection standards than those of its competitors. On the other hand, due to users' tendency to engage deeply and for prolonged periodswith the social platform, many have considered that TikTok generates addiction among its younger users. A hyperbolic version of this latter concern describes the Chinese social network as “digital fentanyl.”

These statements, or a combination of them, are being used to justify and promote the prohibition or ban of TikTok. The United States and, more recently, the European Union, are ot immune to these developments.

II. United States of America

On April 24, 2024, President Joe Biden signed the “Protecting Americans From Foreign Adversary Controlled Applications Act,” which requires the Chinese company ByteDance to sell its stake in Tiktok in the United States within nine months, under the threat of banning its service in the country. The Act, which received broad bipartisan support—something hard to find in the United States Congress when it comes to internet regulation—was included in a legislative package that also provided financial aid to Israel and Ukraine, to facilitate its swift passage through the chamber. 

Tiktok has approximately 170 million users in the United States alone. The arguments presented by legislators to approve this initiative are related to national security. The Tiktok platform, which is not available in Chinese territory, is owned by Bytedance Ltd., registered in the Cayman Islands. Tiktok, for its part, has offices in Singapore and Los Angeles, according to the company, which denies having direct ties with the Chinese government, although it acknowledges that the government holds 1% of the shares of its subsidiary Douyin Information Service Co., Ltd., as required by Chinese law. The fact is that U.S. congressmen remain skeptical of Bytedance's claims, which assert that it is completely independent of the government and the Chinese Communist Party.

Although the specific information considered by Congress to take this measure was not revealed to the public, the legislators' concerns seem to boil down to three main points. On the one hand, there is the suspicion that Chinese tech companies work closely with the government of that country, which would require them to hand over a large amount of user data, including that of users located in the United States. On the other hand, there are also suspicions that Tiktok could manipulate its algorithm so that users find content in their feed that benefits certain viewpoints, particularly Chinese government propaganda and content aligned with the Communist Party of that country. Republican Congressman Mike Flood even wrote in an op-ed in 2023 that Tiktok is “a propaganda machine that promotes disinformation under the influence of one of [the United States'] main competitors.” Finally, there is a suspicion that the Tiktok app could be used to spy on users who have it installed on their smartphones, which is why the US Congress had already decided, in 2022, to ban the app on government devices.

This is not the first time that the United States has decided to move forward with banning Tiktok in its territory. In 2020, then-President Donald Trump signed a decree imposing economic sanctions on Tiktok and WeChat, a Chinese-origin instant messaging service, always citing national security reasons. The effect that this decree would have had in practice would have been to effectively prevent the use of Tiktok in the United States. The sanction against Tiktok was successfully challenged in court, so it did not come into effect. The WeChat ban met the same fate. Finally, it was President Biden himself who, in 2021, decided to reverse the sanctions. There were also attempts by state legislatures to ban the activity of the Chinese giant in their territories. The state of Montana launched a ban in 2023 that did not withstand judicial scrutiny. The state of Texas, on the other hand, successfully defended in court a measure that requires every state agency in Texas to “prohibit its officers and employees from downloading or using TikTok on any of their government-issued devices.”

Tiktok has already filed a lawsuit challenging the new law passed by the United States Congress, alleging its unconstitutionality under the First Amendment. The platform is far from being the only one that considers the measure to violate this clause. Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, believes that the freedom of expression rights of the millions of Americans who post and consume videos on TikTok daily are at stake. 

Regarding the argument related to propaganda and misinformation, Evelyn Douek, assistant professor of law at Stanford University, has stated that “it is a fundamental principle of the First Amendment that the government can’t ban speech on the basis that they don’t like it, or that they’re convinced it’s going to convince people of ideas they don’t like.”

Another justification for this measure is that, given the close connection that Tiktok allegedly has with the Chinese government, it could obtain giant volumes of information about the millions of American citizens who use it daily, posing a national security problem. The issue with this argument is that the Chinese governmentdoes not need Tiktok to obtain this information, as it could pay to acquire it anyway, given the absence of a federal data protection law in the United States. In that sense, skeptics point out that enacting such a law would be a much more effective measure, as it would protect against abuses in the use of personal data committed not only by TikTok but by any other company, regardless of nationality, and at the same time be more proportionate because it is a less restrictive means of freedom of expression than the forced sale of a company under threat of a service ban. Professor Genevieve Lakier of the University of Chicago put itin these terms: “It’s the worst imaginable means of trying to protect users’ privacy, because it’s going to shut down an entire vibrant platform or require its divestment.”

The outcome of the litigation, according to experts, seems difficult to predict, given the unknown evidence the Government will present in support of its reasons. It is well known that U.S. courts give significant weight to national security reasons. On the other hand, if Tiktok succeeds in framing the case as one of freedom of expression, the government measure will have to withstand very stringent constitutional scrutiny (strict or intermediate scrutiny), which is very difficult to satisfy.

III. European Union

On the other side of the Atlantic, threats of a ban on TikTok emerged. Overall, the debate around banning the Chinese platform in the European Union centered around two positions: the conviction that the benefits of the ban outweighed the risks of allowing TikTok to operate without limitations, and the assertion that these risks should be mitigated through less restrictive regulations. Two statements from the same official—ironically—summarize both perspectives.

When in March 2023 the European Commission and the Council of the EU (as happened in the United States) banned their staff from having the TikTok app installed on their phones, Dita Charanzová, Vice President and Head of Cybersecurity for ​​the European Parliament, said that “Cybersecurity must be more important than having a social media app on your phone.” The arguments in defense of the measure also echoed those made in Washington: in both cases, the cornerstone was the (not entirely unfounded) suspicion that the security of users' data was not guaranteed.

A year later, the situation took on a new dimension after the Digital Services Law (DSA) will be officially implemented in the EU member states. From then on, Charanzová adopted a more conciliatory tone, moving away from parallels with the U.S. case: “We are in a different situation.” However, the difference that Charanzová highlighted was less about material circumstances and more about legal frameworks: “[In the European Union] we realized these challenges many years ago and that’s why we have the Digital Services Law, which obliges the platforms to behave differently.” In response to the same cybersecurity issues, the EU now had an alternative a ban: regulation.

The implementation of the DSA shifted the focus of the situation: now TikTok would be investigated for potential violations of regulations regarding child protection, advertising transparency, data access for researchers, and the management of harmful and addictive content. In February 2024, the European Commission launched this formal investigation to assess whether TikTok had implemented effective measures to mitigate the systemic risks associated with its design, especially those that could “negatively affect the physical and mental well-being of users,” as well as “respect for the integrity of minors.” The investigation also scrutinized the efficacy of the Chinese platform's age verification tools and its transparency in presenting data to researchers.

A second formal procedure was opened by the Commission in April regarding the launch of TikTok Lite's “Tasks and Rewards Program” in France and Spain. This new TikTok program, which incentivizes users with rewards for performing certain activities on the platform, raised concerns due to its “addictive potential” and “the lack of proper risk assessment prior to its implementation.” The Commission demanded that TikTok submit a detailed report on the risk mitigation measures adopted and indicated that significant sanctions could be imposed if the company failed to comply with the established obligations. 

Additionally, “given TikTok's inability to present the risk assessment that should have been conducted before the launch of TikTok Lite,” the European Commission seriously considered imposing provisional measures consisting of the suspension of the rewards program. This procedure presents at least two criticisms: on the one hand, the prima facie measure of suspension seems disproportionate – alternative measures could be imposed that do not involve denying users the ability to share and receive information circulating on the platform, and therefore do not restrict their freedom of expression. Nonetheless, the underlying issue that gives rise to these measures is the crux of the matter: the Commission's investigations seem to start from the presumption of TikTok's guilt; hence, they first impose a sanction (or warn that they will do so) and, secondly, require the platform to—in a manner of speaking—prove its innocence (or, in any case, refute its guilt).

Faced with the evident instigation from the Commission, TikTok decided “unilaterally suspend the TikTok Lite “Tasks and Rewards Program” in France and Spain for an initial period of 60 days (…) and pause the rollout of TikTok Lite in other EU Member States.” Thierry Breton, EU Commissioner for Internal Market, welcomed the decision: “Our children are not guinea pigs for social media. The DSA ensures the safety of our EU online space.” Needless to say, TikTok's suspension was hardly voluntary: it is undeniable that the regulatory pressure and strict oversight exerted by the European Union were decisive factors.

A recent statement from European Commission President Ursula von der Leyen rekindled uncertainty that seemed to have begun dissipating when she declared that an EU ban on TikTok “is not excluded.” If the insinuation alone was not confusing enough, the circumstances in which it were also unclear: at the time of the statement, von der Leyen was in the city of Maastricht representing the European People's Party in the context of a debate regarding the regional bloc's 2024 elections. 

Many European leaders did not to delay their responses to the comments made by the President of the Commission. Croatian president, Zoran Milanović, proposed a notable counterpoint suggesting that EU countries should be able to decide autonomously on a possible TikTok ban: “Why should we ban it in Croatia, Hungary, or Poland if we don't want to?” The lack of a bloc-wide initiative to ban TikTok is perhaps understandable given the lack of incentives for the diplomatic coordination such an effort would require. Although there could be institutional mechanisms to foster this coordination, it would first be necessary to address a fundamental issue: as journalist Pieter Haeck pointed out in a recent article, “the issue with suggestions of an EU-wide ban, though, is that the bloc doesn't have a formal say over national security concerns.”

IV. Conclusion

As outlined in the previous sections, the measures taken (or threatened) by state agents in the United States and Europe against TikTok were particularly draconian. Although it would have been possible in both cases to consider measures far less restrictive of citizens' freedom of expression, authorities opted for the threat of suspension or closure. In the case of the United States, passing a federal personal data protection law or laws requiring greater transparency from platforms seem much more proportionate measures to deal with the real difficulties TikTok poses. In Europe, the severity of the measures that the European Commission threatened to take is striking, especially since the process against the Chinese platform has not yet concluded.

While in both cases the reasons invoked are different, the exceptional harshness of the sanctions (or threats) seems to indicate a different treatment towards TikTok compared to that usually given to other companies. The distrust towards China in the United States has been explicitly expressed in public interventions by numerous government officials and official documents for several years. In Europe, some statements from officials refer to China as a state that spreads disinformation (see, for example, those by Josep Borrellhereandhere). It is important to remember that the adoption of the DSA and the Digital Markets Act (DMA) represents a strong European political commitment in a multipolar world, as it proposes an alternative model of relations between the Union and large tech companies, mostly American and Chinese, imposing burdensome obligations. In the words of Commissioner Ursula Von Der Leyen, the DSA is about “bringing our European values into the digital world".

The threats of suspension, forced sale or ban of TikTok's operations in Europe and the United States set a dangerous precedent. Such drastic measures by democratic governments with significant influence in the international community are being implemented without extremely convincing justifications presented to the public. There is also a suspicion that the primary reasons behind the sanctions might be geopolitical. All of this could pave the way for other states – especially authoritarian ones – to use similar arguments to restrict access to information for their inhabitants. On the other hand, as Meredith Whittaker, researcher and president of the Signal Foundation, wrote, a potential forced sale of TikTok in the United States would intensify the already enormous concentration of tech companies governed by U.S. law and subject to control by its government. This is occurring in a climate of particular hostility towards freedom of expression in general and platforms in particular and in times of uncertainty regarding a possible change in government in the U.S., elements that do not allow for optimism regarding how control over platforms will be exercised. In any case, as the author argues, if TikTok promotes certain discourses and silences others, the same can be said for the rest of the platforms. What is certain is that, with the banning, suspension, or forced sale of TikTok, the digital ecosystem as we know it will no longer be the same and could lose one of its most vibrant actors.