The Supreme Court has released their decision in Twitter v. Taamneh. This decision was a unanimous decision authored by Justice Thomas with one short concurrence by Justice Jackson. In this case, Twitter was defendant and victim is plaintiff at the lower courts. The facts of this case are fairly straight forward. A terrorist committed a terrorist attack. One of the victim’s families sought to hold Twitter responsible for aiding and abetting this attack. The parties agree on most elements of the lawsuit: that this was a terrorist attack, performed by an international group, etc.
The only question before the Court is “thus whether defendants’ conduct constitutes “aid[ing] and abett[ing], by knowingly providing substantial assistance,” such that they can be held liable for the Reina nightclub attack.” The Court ruled that no, Defendant’s conduct is not enough to hold them liable for damages. The facts that the victim’s family allege do not state a violation under the law because the element of aiding and abetting was not proven and so the complaint should be dismissed for failure to State a claim.
The Court recognized how social media platforms and their recommendation system works: more cooking videos are recommended to those who watch cooking videos, more ISIS content is presented to those who watch ISIS content. ISIS uploads content showing people celebrating terrorist attacks and recruiting more members. Plaintiffs however insist that because these platforms know what content they are recommending and if these platforms don’t stop recommending terrorist content, they are liable for aiding and abetting the next attack because Defendants make money from uploads by having advertisements posted next to the content.
The relevant portion of §2333(a) of the Justice Against Sponsors of Terrorism Act (JASTA) reads, “who aids and abets, by knowingly providing substantial assistance.” Because those terms which are critical to this discussion aren’t defined in the statute, Justice Thomas turns to the common law to interpret these terms. The common law allows for secondary liability to be placed on those who aid and abet criminal activity; the criminal understanding significantly undergirded the civil aiding and abetting in the tortious context.
The Court analyzed a 1983 case Halberstam v. Welch and recognized that the facts of Halberstam case are vastly different from the Twitter case. Aiding and abetting is not an open ended concept because if it were, an innocent bystander could be implicated for failure to call the police. However, the Court recognized, outside of very few narrow circumstances, our legal system does not impose liability on individuals for their failure to act. Likewise in a business context some additional action is required besides a mere sale, because it is all too easy to rest liability on merchants selling disfavored products or mailing disfavored items. The Court recognized that some affirmative action on the part of Defendant to facilitate the ends of the wrongful action must occur.
The parties also disagreed over what specifically defendants must aid and abet. Plaintiffs argued that the object defendants aid and abet be a person; plaintiffs therefore argue that aiding ISIS generally is enough, and proving knowledge of this specific terrorist act is unnecessary. Defendants argued that the object refers to international terrorism and that proving knowledge of this specific act and a link between this act and defendant’s actions is essential in order to rest liability on them. The Court ruled that neither side was exactly correct, but here that doesn’t matter because aiding and abetting is about secondary liability for a wrongful act. The Court ruled that it is not enough for the defendant to have given aid to a transcendent enterprise separate from actionable wrongdoings, but a close link isn’t required.
With that, Justice Thomas turns to the specific case and recognizes that Defendants didn’t give ISIS any special treatment. “The only affirmative conduct defendants allegedly undertook was creating their platforms and setting up their algorithms to display content relevant to user inputs and user history.” Plaintiffs never allege the terrorist who attacked ever used any of the social media websites himself. In a footnote on page 22, Justice Thomas notes that Plaintiffs concede that defendants attempted to remove at least some ISIS-sponsored accounts and content after they were brought to their attention.
“To be sure, it might be that bad actors like ISIS are able to use platforms like defendants’ for illegal—and sometimes terrible—ends. But the same could be said of cell phones, email, or the internet generally. Yet, we generally do not think that internet or cell service providers incur culpability merely for providing their services to the public writ large. Nor do we think that such providers would normally be described as aiding and abetting, for example, illegal drug deals brokered over cell phones—even if the provider’s conference-call or video-call features made the sale easier.” Page 23 of the opinion of the Court
Justice Thomas recognized that these algorithms didn’t do anything special for ISIS content: “[D]efendants’ ‘recommendation’ algorithms are merely part of that infrastructure. All the content on their platforms is filtered through these algorithms, which allegedly sort the content by information and inputs provided by users and found in the content itself.” The next sentence recognizes that the algorithms are agnostic as to the content that is uploaded, but ALL content goes through the algorithms. American law is leery of imposing liability on people for passive inaction. Aside from that, the link between the socials and the attack is separated by so many links in the chain of action.
Justice Thomas recognizes that some situations exist where liability for action can be found, but this situation is not that case.
Gonzalez v. Google shares similar facts to Twitter as reasoned above, so because the question dealt with §230 of the Communication Decency Act, the Court left it for another day because aiding and abetting is much easier to handle. Google was written per curiam and is only 3 pages long. Because the facts are so similar to Twitter as detailed above, the case was sent back to the 9th circuit for them to reanalyze in light of the Twitter decision. The justices were wise leave the question of §230 questions for a different day because the Plaintiff in Google has the same problems that the plaintiff does in Twitter
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