The U.S. Supreme Court decided Gonzalez v. Google and Twitter v. Taamneh this month – two closely watched cases where the plaintiffs filed suit against social media companies, asking the courts to hold them liable for terrorist attacks carried out by ISIS overseas.
In the end, the high court simply held that the plaintiffs in each case did not aid and abet ISIS and the plaintiff’s allegations were insufficient to establish liability under 18 U. S. C. §2333, the Justice Against Sponsors of Terrorism Act (JASTA), and dodged the question of whether Section 230 of the Communications Decency Act shielded the companies from liability.
Gonzalez v. Google and Twitter v. Taamneh: Supreme Court Opinions
The plaintiffs filed suit against Facebook, Twitter, and Google (which owns YouTube) for allegedly aiding and abetting ISIS, alleging that ISIS used the social media platforms to recruit terrorists and to raise funds for terrorism, the defendants knew that ISIS was using their platforms, the defendants failed to stop ISIS from using their platforms, and, therefore, the defendants are liable for the terrorist attacks that killed their relatives.
18 U. S. C. §2333: Justice Against Sponsors of Terrorism Act (JASTA)
Under 18 U. S. C. §2333(a), United States nationals who have been “injured . . . by reason of an act of international terrorism” may sue for damages.
Under §2333(d)(2), plaintiffs can also sue “any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.”
The Court’s analysis, sidestepping the issue of whether Section 230 provides immunity from the lawsuits, found that the plaintiffs in each case did not state a valid claim under §2333 because there was insufficient evidence that the defendants “aided and abetted” ISIS in the attack that killed their relatives.
Twitter v. Taamneh
In Twitter v. Taamneh, the Supreme Court found that the first three requirements for a lawsuit under §2333(d)(2) were met:
- The attack was an “act of international terrorism,”
- The attack was “committed, planned, or authorized” by ISIS, and
- ISIS was “designated as a foreign terrorist organization” as of the date of the attack.
The Court found, however, that there was insufficient evidence that the defendants “aid[ed] and
abet[ed]” the terrorist act “by knowingly providing substantial assistance.”
“Aiding and abetting” liability does not apply to bystanders – for example, a person who watches a robbery happen but does not call the police or intervene, is not liable for aiding and abetting the robbery.
The defendant, to be liable for aiding and abetting, must take some “affirmative act… with the intent of facilitating the offense’s commission. This could include “abetting, inducing, encouraging, soliciting, or advising the commission of the offense, such as through words of encouragement or driving the getaway car,” but it does not include a failure to act when a person simply has knowledge of the tortious conduct or criminal activity.
Taken further, the Court notes that, although the defendants may have had knowledge that ISIS was using their platforms and failed to remove their videos, there is zero evidence that the defendants took any action to facilitate the specific attacks that resulted in the deaths of the plaintiff’s family members.
The “bogeyman” of Section 230 that raised fears that the Supreme Court would “break the internet” in their opinions was unfounded in the end, as the Supreme Court did not mention Section 230 once in the 38-page Twitter opinion.
Gonzalez v. Google
In a short, three-page opinion, the Supreme Court disposed of the allegations in Gonzalez v. Google by holding that, as in Twitter v. Taamneh, the plaintiffs failed to state a claim under “either our decision in Twitter or the Ninth Circuit’s unchallenged holdings below,” and noting that “there is no need to address the application of §230 to a complaint that appears to state little, if any, plausible claim for relief.”
Section 230 of the Communications Decency Act Remains Intact
Democrats and Republicans have complained about Section 230 for years, with politicians on both sides of the aisle concerned that tech companies have too much control over what the public sees on social media sites.
Some Democrats have raised concerns that social media has been “weaponized” in recent years to spread falsehoods related to campaigns, elections, and public health issues, and believe that Section 230 should not protect social media companies from liability for promoting harmful content.
Some Republicans have raised concerns that social media sites have removed content or suspended accounts based on the individual’s political views (which may include falsehoods related to campaigns, elections, and public health issues), and believe that Section 230 should not protect social media companies from liability for removing harmful content.
The final take-away of the Twitter and Google cases is that, if there is another reason to deny liability in a particular case, there is no need to even analyze Section 230’s application.
The US Supreme Court deftly dodged the application of Section 230 in the Google and Twitter cases, leaving it up to the legislature to “break the internet” if they see fit.
Please feel free to contact one of our Murray Lobb attorneys to obtain our advice regarding your business’s potential liability for regulating – or not regulating – online content. We also remain available to help you with all your general corporate, employment, construction law, business, and estate planning needs.