This article was updated on 9 December.
A US TikTok ban — in discussion since 2022 — just got closer to becoming a reality: on 6 December, TikTok’s attempt to overturn its looming ban was rejected.
TikTok argued that the law was unconstitutional because it represented a “staggering” impact on the free speech of its 170 million US users. The court rejected TikTok’s argument, instead saying that the law “was the culmination of extensive, bipartisan action by the Congress and by successive presidents”. The court denied that the law contravenes the First Amendment, as TikTok contended.
This comes after the House of Representatives passed a bill in March 2024 that means, unless TikTok divests from its Chinese owner Bytedance, the platform could very well be removed from app stores in the US. The bill won by an overwhelming majority in a rare bipartisan vote, passing on a 352-to-65 vote ratio. The Senate passed the bill in April 2024, and President Biden is signed it into law — which will come into effect the day before Donald Trump is inaugurated on 20 January. If the ban comes into effect, TikTok will be removed from app stores, and users will no longer be able to update the app.
Now, TikTok plans to push back against the ban in the Supreme Court. “While today’s news is disappointing, rest assured we will continue the fight to protect free speech on our platform,” TikTok CEO Shou Zi Chew wrote in a memo. “Our next step is to seek an injunction of the ban, pending review by the US Supreme Court.” TikTok did not immediately respond to a request for comment.
The bill remains a controversial move. The ban’s critics hold that it is a First Amendment violation, and also critique lawmakers for focusing on banning TikTok before dealing with America’s more pressing issues. Other concerns include the impact on small businesses that have come to rely on the app for sales, as well as the seemingly rushed process (it went from committee to vote in four days). Supporters of the ban believe TikTok poses a national security risk and shouldn’t be allowed to operate in the US while owned by a Chinese company.
“[TikTok] is trying almost every avenue to lobby anyone that will listen to them, and to seek as much legal recourse as possible – and will do so to the bitter end,” says social media consultant Matt Navarra, who was surprised how quickly the bill moved through Congress earlier this year.
A TikTok ban would disrupt an emerging ecosystem for creators, small businesses and major brands that have built up followings and strategies based on TikTok’s short-form videos as well as TikTok Shop, the in-app e-commerce platform that rolled out in the US last September. TikTok is the second-top social shopping destination for young consumers (Instagram is first), according to Insider Intelligence. Just over a third (36.1 per cent) of respondents in Insider Intelligence’s research said they had made a purchase on TikTok Shop. More important than Shop usage, though, is the app’s reach. TikTok contributed $24.2 billion to US GDP last year, according to a report by economics consultancy Oxford Economics. It drove $14.7 billion in small business owners’ revenue and supported 224,000 jobs. And there are over 170 million active users in the US (as per the report), ready to watch.
Brands and creators should “absolutely” be more worried than before, says Navarra.
“It’s disappointing that this is the one thing our lawmakers can agree on,” says Jade Beguelin, co-founder of skincare brand 4am Skin, which uses TikTok frequently. “It’s disappointing for small businesses.”
TikTok CEO Shou Zi Chew testified before Congress on Thursday, offering solutions to quiet lawmakers’ security concerns. What should brands do now?
“It’s one of, if not the most popular app, with a large number of popular demographics — particularly younger users,” says Navarra. “The level of engagement with their content is hard to replicate the same way on other platforms.” Other platforms (like Instagram and YouTube) offer similar reach, but for hardcore TikTok users, he says, the news will cause anxiety.
Creators still have lots of options, Navarra says, noting the similar formats, editing tools and monetisation options of Instagram Reels and YouTube Shorts. “It should be relatively easy to switch and start posting that TikTok content somewhere else.” But, if a creator’s following is primarily on TikTok, he says, they are left to grow an audience on a new platform.
Permele Doyle, founder of marketing agency Billion Dollar Boy, recalls India’s 2020 TikTok ban: “Creators and brands simply shifted resources to YouTube Shorts, highlighting the sector’s resilience.”
What’s next?
Wisconsin Republican Rep. Mike Gallagher rejects the characterisation of a ban. He told reporters: “It’s not a ban. It puts the choice squarely in the hands of TikTok to sever its relationship with the Chinese Communist Party. As long as Bytedance no longer owns the company, TikTok can continue to survive.”
But is TikTok likely to divest from Bytedance? Not willingly, experts say. For one, China’s regulations will make it difficult for TikTok to pursue any deals, as it would require approval from Beijing to sell with the algorithm, says Jasmine Enberg, senior analyst at Emarketer. “TikTok without the algorithm likely won’t be TikTok — and that could significantly hurt its operations in the US.”
TikTok is fighting hard, but internally, Navarra expects that divestment conversations are heating up. “You have to imagine that inside of Bytedance and TikTok, they will be feeling that there is an increased likelihood that they will have to make a call on whether or not they will divest,” he says. This is complex and will have significant implications for the TikTok brand, depending on who it is divested to, he says. Any company that bought TikTok would face regulatory pressures, he flags, in regards to it becoming too large. “You can’t imagine that Meta or YouTube would be particularly happy if Amazon was to become the owner, in terms of competition.” Beyond Amazon, few companies have the money to do anything with TikTok, he says, offering Walmart as another potential purchaser. “It’s such a huge purchase.”
TikTok has already faced challenges in the US. Earlier this year, Universal Music Group (UMG) pulled its artists’ music from the app due to a lack of licences in place. In a statement, the group shared concerns about fair compensation for artists, the “harmful effects” of AI and users’ “online safety”. To UMG artists, they said: “Every indication is that they simply do not value your music.”
In March, Chew testified before Congress during a hearing about whether to ban the app. Then, he outlined four “promises” TikTok will commit to: teen safety; US data protection; government manipulation avoidance; and granting access to third-party monitors. These, it seems, weren’t enough for US officials.
As for what brands can be doing in the meantime? Essentially, what they should’ve been doing all along, Navarra says: diversifying their platform investments and revenue streams. “You should be spreading your creative efforts across multiple platforms. You have multiple options in Reels and Shorts, so if you haven’t already, I would be starting to think about building audiences and cross-posting there.”
This is the approach Beguelin is taking at 4am Skin. Though she doesn’t anticipate an operational halt in the near term, it would be unwise not to prep, she says. For now, the team is exporting all of its TikTok content and beefing up their non-TikTok strategies.
Advertisers, too, should be thinking about diversification. There’s no need to panic, Doyle says they’ll likely be given some warning if a ban comes to pass, which will enable them to finalise most creator and brand campaign partnerships or even rearrange them.
January looms
The bill is gaining momentum at an interesting time for luxury brands, which have recently begun to embrace the platform known for less polished and more authentic content. Loewe, most notably, has found success on the app, posting more low-fi, irreverent content to boost brand awareness among younger consumers. Notably, Loewe is already thinking about how to translate this content back over to Instagram. “It’s an exciting challenge to think about how we can take the work we’ve done for TikTok that’s been so successful and apply it to some kind of graphic short-form video on Instagram,” CMO Charlie Smith recently told Vogue Business. It’s an approach other brands could borrow from.
Creators are already taking the TikTok ban more seriously than before, Enberg says. They’ve been encouraging their followers to migrate with them to YouTube and Instagram. Now, she says, brands need to follow suit. “Brands should also take the prospect of a TikTok ban seriously and develop contingency plans. Brands and creators who rely solely or heavily on TikTok should be diversifying their portfolios and nurturing their audiences on other platforms.” The same goes for advertisers, Doyle says. “[They] should consider reallocating budgets to these alternatives to prepare for a potential ban and gain valuable learnings about performance on other platforms.”
The Trump presidency could bode well for TikTok. Though Trump initially pushed for a TikTok ban, during his campaign, he said that he doesn’t want to ban the app. But, given the law would come into effect the day before his presidency begins, it’s unclear whether Trump would be able to reverse it. Plus, many members of the Republican party voted in favour of the TikTok ban. “It will be tricky for him to navigate party politics, as well as keep a promise he has made,” Navarra says.
It’s hard to predict where the President-elect will stand, Navarra says. “Trump is a particularly volatile and mercurial character, much like his new stablemate Elon Musk, and he himself has yo-yoed over his views on whether TikTok should be banned or not and whether it’s good for America or not,” he says. “But I’m sure that if Trump wants to do something, he will find a way to do it.”
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