What responsibility do social media sites like Facebook, Twitter, YouTube, and others have for allegedly helping terrorist groups like ISIS recruit new members and generate money for their terrorist attacks?
Family members of Nawras Alassaf (Plaintiffs), one of the 39 victims of an ISIS terrorist attack at the Reina nightclub in Istanbul, filed a lawsuit against Facebook, Twitter, and Google/YouTube (defendants), seeking damages against the three social media platforms, alleging that they "aided and abetted" the terrorist organization, ISIS, by knowingly allowing ISIS and its supporters to use their platforms and profit from their "recommendation" algorithms.
This issue was raised before the U.S. Supreme Court in an appeal filed by Twitter against the Ninth Circuit's reversal of a District Court judgement that had dismissed the complaint of Plaintiffs for failure to establish a claim.
While allowing Twitter's appeal, the U.S. Supreme Court rejected the Plaintiffs' claims. It held that social media companies could not be shown to "aid and abet" terrorists simply by hosting their content, failing to remove it or recommending it to others.
The U.S. Supreme Court decision assumes importance in India also as the question of social media companies' accountability under S. 79 of the Information Technology Act, 2000, for allegedly "aiding and abetting" the commission of the unlawful act is frequently debated in Indian courts, too.
According to S. 79 of the Act, social media companies or intermediaries are exempt from liability. However, this immunity ends if the intermediary has conspired, aided, abetted, or otherwise persuaded someone to commit the unlawful act, whether through threats, promises, or other means.
Nowadays, there is a proliferation of lawsuits against intermediaries in India, alleging their involvement, amongst others, in violation of the Trademark and copyright laws or committing criminal offences under various sections of the Indian Penal Code and other penal statutes. Moreover, to make Intermediaries liable, Complainants in Indian Courts have started pleading 'aiding and abetting by the intermediaries in the commission of the unlawful act'.
In this background, the decision handed down by the U.S. Supreme Court may have some bearing—if not authoritative—on the interpretation of 'aiding and abetting' mentioned in S.79 of the I.T. Act, 2000.
In the present case, the U.S. Supreme Court was dealing with the claims under the Justice Against Sponsors of Terrorism Act (JASTA) which provides those injured by an act of international terrorism can sue the relevant terrorists directly under—or they can sue anyone "who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism".
Plaintiffs, in support of their claims, had alleged that the defendants aided and abetted ISIS in the following ways: First, they provided social-media platforms, which are generally available to the internet-using public; ISIS was able to upload content to those platforms and connect with third parties on them. Second, the defendants' recommendation algorithms matched ISIS-related content to users most likely to be interested in that content. And third, the defendants knew that ISIS was uploading this content but took insufficient steps to ensure that its content was removed.
On the allegations above, the question for determination before the U.S. Supreme Court was "whether the conduct of the social-media company defendants gives rise to aiding-and-abetting liability for the Reina nightclub attack".
To answer the question, the Court framed two issues for determination: (a) What does it mean to "aid and abet"? And (b) what precisely must the defendant have "aided and abetted"?
The D.C. Circuit's ruling in Halberstam v. Welch, 705 F. 2d 472, was cited by the Supreme Court as "providing the proper legal framework" for "civil aiding and abetting and conspiracy liability" in the absence of the statute's definition of any of the key terms in the phrase "aids and abets, by knowingly providing substantial assistance." Halberstam's legal framework reveals that "aids and abetting" in JASTA refers to a conscious, voluntary, and culpable involvement in another's conduct when evaluated in the context of the common-law tradition from which it originated.
The Supreme Court, based on the plea taken in the lawsuits, found that "none of the plaintiffs' allegations suggests that defendants culpably "associated themselves with" the Reina attack, "participated in it as something that they wished to bring about," or sought "by their action to make it succeed."
The Court held that Defendants' mere creation of their media platforms is no more culpable than the creation of email, cell phones, or the internet generally. Finally, regarding the allegations against the defendants' recommendation algorithms, the Court held that they are merely a component of the infrastructure that filters all of the content on their platforms, and the algorithms have been characterized as unconcerned with the type of content.
The Court, in its ultimate analysis, found that the Plaintiffs' failure to allege that the platforms do more than transmit information by billions of people—most of whom use the platforms for interactions that once took place via mail, on the phone, or in public areas—is insufficient to state a claim that defendants knowingly gave substantial assistance and thereby aided and abetted ISIS' acts.
According to the Court, a contrary conclusion would effectively make any communications provider liable for any wrongdoing simply for knowing that the wrongdoers were using its services and failing to stop them. As per the Court, this would trample on the usual limits on tort liability and disassociate aiding and abetting from culpability.
The Court ultimately decided that the plaintiffs' claims fall far short of credibly alleging that the defendants helped and abetted the Reina attack due to the lack of a connection between that assistance and the Reina attack, the absence of any defendant intending to help ISIS, and the absence of any affirmative and culpable misconduct that would help ISIS.
Interestingly, while reversing the Ninth Circuit's judgment, the Supreme Court heavily relied upon social media companies' business models and held that ISIS' ability to benefit from these platforms was merely incidental to the defendants' services and general business models; it was not attributable to any culpable conduct of defendants directed toward ISIS.
The Court found a flaw in Ninth Circuit's judgement which didn't give any weight to the defendants' arm's-length relationship with ISIS, which was no different from their relationship with their millions or billions of other users—and their undisputed lack of intent to support ISIS.
The Indian Courts, while deciding the culpability of social media Companies, may take a clue from the judgement that the allegation of 'aiding and abetting' will stand if the help by the companies in the commission of an unlawful act is pervasive, systematic, and culpable assistance to the wrongful act. But if a platform consciously and selectively promotes illegal content, it could undoubtedly be guilty under the I.T. Act.
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