On April 18, the Supreme Court released its decision in two Section 230 cases that could potentially change internet law from the perspective of tort and national security. Through these decisions, the Supreme Court decided to not hold social media companies such as Facebook, Twitter and Google (the owner of YouTube) liable for the content published on their platforms by users.
In a previous article, I described how the plaintiffs in the Supreme Court cases of Gonzalez v. Google and Twitter, Inc. v. Taamneh tried to hold social media platforms liable for terrorist content published on their platforms by third parties. For instance, Taamneh accused Twitter of being responsible for aiding and abetting international terrorism.
According to the Legal Information Institute, Section 230 is part of Title 47 of the U.S. Code. It exempts social media platforms from being seen as publishers of information and shields them from lawsuits on issues involving tort.
In both of these cases, the plaintiffs asked the Supreme Court to enable them to bring a lawsuit according to Section 2333 of the Anti-Terrorism Act (ATA). With this Act, the plaintiffs would have been able to hold social media companies responsible for the death of American citizens in ISIS-directed terrorist attacks in Paris and Istanbul.
The ATA has a provision that permits U. S. nationals who have been “injured . . . by reason of an act of international terrorism” to file a civil suit for damages. The claim in both of these Section 230 cases was that Facebook, Twitter and Google knew for years that ISIS has used their platforms as terrorist recruitment tools.
Related: Supreme Court Changes Immunity Given to Foreign Nations
Legal Liability Depends Upon Different Factors
In the Taamneh decision, the Supreme Court held that the definition of “aiding and abetting” in this context are based on factors articulated by the Supreme Court in a previous case, Halberstam v. Welch. According to Halberstam, liability depends upon these six factors:
- The nature of the act assisted
- The amount of assistance provided
- Whether the defendant was present at the time of the principal tort (wrongful act or the infringement of a right)
- The defendant’s relation to the tortious actor
- The defendant’s state of mind
- The duration of the assistance
Why Did the Supreme Court Not Hold Social Media Companies Liable for User-Generated Content?
In Justice Thomas’s opinion, which served as the unanimous opinion of the Supreme Court, the Supreme Court maintained that the plaintiffs failed to prove factors three through six. According to the Court, the involvement of social media platforms’ algorithms in the promotion of videos uploaded by ISIS operatives was minimal. The algorithms also lacked the ability to discern the source of terrorist content and its nature.
Justice Thomas noted: “By their very nature, the concepts of aiding and abetting and substantial assistance do not lend themselves to crisp, bright-line distinctions. However, both the common law and Halberstam provide some clear guideposts: The point of aiding and abetting is to impose liability on those who consciously and culpably participated in the tort at issue.
“The focus must remain on assistance to the tort for which plaintiffs seek to impose liability. When there is a direct nexus between the defendant’s acts and the tort, courts may more easily infer such culpable assistance.
“But the more attenuated the nexus, the more courts should demand that plaintiffs show culpable participation through intentional aid that substantially furthered the tort. And, if a plaintiff’s theory would hold a defendant liable for all the torts of an enterprise, then a showing of pervasive and systemic aid is required to ensure that defendants actually aided and abetted each tort of that enterprise.
“Here, however, the nexus between defendants and the Reina attack is far removed. As alleged by plaintiffs, defendants designed virtual platforms and knowingly failed to do “enough” to remove ISIS-affiliated users and ISIS related content—out of hundreds of millions of users worldwide and an immense ocean of content—from their platforms.
“Yet, plaintiffs have failed to allege that defendants intentionally provided any substantial aid to the Reina attack or otherwise consciously participated in the Reina attack, much less that defendants so pervasively and systemically assisted ISIS as to render them liable for every ISIS attack.”
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These Supreme Court Decisions Mean That Social Media Companies Are Immune to Lawsuits Regarding Their Content…For Now
After these rulings, further discussion of Section 230 has been rendered moot. A different Supreme Court decision in both Gonzalez and Taamneh would have made life more complicated for social media companies, especially on the legal front.
Now, the Supreme Court has unanimously ruled that social media companies can maintain their immunity from prosecution regarding their content for the foreseeable future. Consequently, someone else will need to pay attention to what terrorist organizations are posting on platforms and how that content is used from recruitment purposes.
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