A US appeals court has upheld the law targeting TikTok that was passed by Congress earlier this year, saying that - unless owner Bytedance sells the app - after 19 Jan 2025, TikTok “will effectively be unavailable in the United States, at least for a time”.
The judges added that they “recognise that this decision has significant implications for TikTok and its users” but - assuming Bytedance stands firm on its position that selling TikTok isn’t an option - that those users may “need to find alternative media of communication”.
TikTok says it is still hopeful the legislation will be blocked in the US Supreme Court, because the judges there have an “established historical record of protecting Americans’ right to free speech”, and has already asked the courts for an emergency injunction to have the 19 Jan deadline paused while it goes through with its appeal.
Otherwise, the ban will shut down “one of the nation’s most popular speech platforms” used by 170 million people in the US “on the eve of a presidential inauguration”, a “critical time in our nation’s history”, TikTok’s new legal filing declares.
Without an injunction, says TikTok, the Supreme Court would be forced to make a decision on a “weighty constitutional question in mere weeks (and over the holidays, no less)”.
Given the significant implications of any ban going into force, the Supreme Court should have the opportunity to review this “exceptionally important” case. Pushing back the deadline will also give incoming President Donald Trump time to consider his position on the ban.
Which is important because there is a “reasonable possibility that the new administration will pause enforcement of the act or otherwise mitigate its most severe potential consequences”, adds the legal filing, noting that “it has been widely reported, for example, that the incoming administration ‘is expected to try to halt’ the ban”. Trump, adds the app’s legal team, “has himself publicly announced ‘I’m gonna save TikTok’”.
Under the act passed by Congress in April, China-based Bytedance has until 19 Jan 2025 to sell the app, otherwise it will be banned within the USA. Given Bytedance has so far insisted a sale is not going to happen, and with the clock ticking, the intervention of either the Supreme Court or Trump, or both, is now required to stop something dramatic happening early next year.
“The TikTok ban, unless stopped, will silence the voices of over 170 million Americans here in the US and around the world on 19 Jan 2025”, says a statement from the shortform video platform, before adding, perhaps somewhat optimistically, that it expects the Supreme Court will intervene “on this important constitutional issue”.
The consequences of a ban, it adds, would be “extreme and irreparable”, resulting in the company taking a huge hit on the number of users it has, adding that “even a temporary shutdown will have devastating effects”. That is because, even with a temporary ban, “many current and would-be users and creators in the United States and abroad will migrate to competing platforms”, and if that happens “many will not switch back if the ban is later lifted”.
This would also mean a huge loss of revenue, with the company predicting that even a one-month shutdown “would result in a loss of 29% of TikTok’s total targeted global advertising revenue for 2025”, while also destroying “TikTok’s ability to attract advertisers” as well as crippling its “ability to recruit and retain talent”.
If the ban goes ahead, it would also be a big deal for the American music industry. The industry has had a pretty rocky relationship with TikTok over the last year. First Universal Music fell out with the platform, pulling down its content in a fight that was resolved with a whimper rather than a bang, widely interpreted by commentators as a sign that the major had only partly got what it wanted.,
Then the NMPA, the body representing music publishers in the US, had a set-to with the short form video app. More recently, TikTok took on digital rights aggregator Merlin and its indie label members, saying that it would do deals directly with labels and distributors, but not continue its deal with Merlin as an intermediary.
However, as became abundantly clear during the UMG vs TikTok standoff, with many Universal-signed artists complaining that the major’s falling out with the company was harming their ability to reach fans, the app is still an incredibly important marketing platform for artists and labels, and also generates increasingly significant revenues for the music industry.
At the heart of the proposed ban is the concern that the Chinese government has direct access to TikTok user-data via Bytedance, presenting a security risk for the US and American TikTok users, but TikTok and Bytedance have repeatedly denied that this is the case.
The “purported concerns about China manipulating the content Americans see on TikTok or misappropriating their private data” are speculative at best, says the company in its latest legal filing.
It adds that the US government’s own defence of the ban “at most asserts that China ‘could’ engage in certain harmful conduct through TikTok, not that China is currently doing so or will soon do so”, and that the government has “repeatedly admitted” that it has “no evidence that China has ever engaged in such behaviour”.
In fact, says TikTok, its parent company Bytedance is “a privately held Cayman Islands-incorporated holding company” that is “majority-owned by global institutional investors” and while it “owns subsidiaries located around the world, including in China”, that is its primary connection to China, and “the Chinese government has no ownership stake in ByteDance Ltd, directly or indirectly”.
Both TikTok and a group of creators who use the platform for their content have argued that the sell-or-be-banned law that Congress passed is unconstitutional, because it breaches the free speech protections provided by the First Amendment of the US Constitution.
However, that free speech claim has been rejected by Congress and Joe Biden’s government, which defended the law in the Washington DC appeals court. And judges there also rejected the free speech arguments last week.
Judge Douglas Ginsburg wrote, “The First Amendment exists to protect free speech in the United States” and that the ban put in place by Congress is “solely to protect that freedom from a foreign adversary nation and to limit that adversary’s ability to gather data on people in the United States”.
As news of the appeal court’s ruling broke, TikTok made it clear that its fight is not over and that it will now take its case to the Supreme Court, saying that the ban was “conceived and pushed through based upon inaccurate, flawed and hypothetical information” and that the only outcome of the ban would be “outright censorship of the American people”.
“There is no imminent threat to national security”, says TikTok, something that’s particularly clear since Congress itself delayed the [ban’s] effective date for 270 days”.
Furthermore, lawyers acting for TikTok “could not more specifically refute the government’s vague assertion” about at national security risk “because all of the detail purportedly supporting it was redacted” in court proceedings. As a result, TikTok was “denied the ‘hallmark’ of an adversary proceeding: ‘access to the evidence tendered in support of a requested court judgment’”.
Beyond the Supreme Court, some have speculated that incoming US President Trump might as yet intervene, as TikTok noted in its new filing. Although he tried to ban the app himself during his first presidency, Trump did pledge to ‘save TikTok’ during this year’s presidential election campaign. That said, a number of Trump’s allies in Washington have been critical of TikTok in the past.
However, if nothing else, Trump could buy Bytedance more time. Under the law passed by Congress, the President can delay the deadline for Bytedance to sell the app by 90 days. Trump becomes President the day after the ban is due to go into effect, so deciding whether or not to delay that deadline could be one of the first decisions he has to make. Unless, of course, TikTok gets its injunction which will buy Trump, the Supreme Court and itself some valuable breathing space.
