Supreme Court of The United States (SCOTUS): While deliberating over the instant case wherein it was alleged that Twitter, Facebook and Google (which owns YouTube) have aided and abetted the Islamic States of Iraq and Syria (ISIS) by knowingly allowing the terror organisation and its supporters to use their platforms as tools for recruiting, fundraising and spreading propaganda and thereby helping ISIS to carry out a terrorist attack at Reina Nightclub in Istanbul; the 9-Judge Bench of the Court, in an unanimous decision, held that, allegations that these social-media companies aided and abetted ISIS in its terrorist attack on the Reina nightclub fail to state a claim under Title 18 of U.S. Code, Chapter 113B §2333(d)(2). The Full Bench of the Court comprised of John Roberts, CJ., and Clarence Thomas*, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson, JJ.
Background: In 2017, Reina Nightclub, Istanbul, Turkey was the ground zero of massive terror attack carried out by Abdulkadir Masharipov, an ISIS (a designated terrorist organisation) operative. 39 people including Nawras Alassaf, whose family members then brought this present lawsuit under Title 18 of U.S. Code, Chapter 113-B §2333(d)(2)1 alleging that that they have been injured by the attack. The family then sued Facebook, Google and Twitter, claiming that they aided and abetted ISIS and thus were liable for the Reina nightclub attack.
The plaintiffs had alleged that ISIS and its adherents have used these social media platforms for years as tools for spreading their propaganda. Like many others around the world, ISIS and its supporters opened accounts on Facebook, YouTube, and Twitter and uploaded videos and messages for others to see. These social media platforms have displayed ISIS content like advertisements, brutal execution videos. Thus, the plaintiffs have alleged that Twitter et all have been crucial to ISIS’ growth, allowing it to reach new audiences, gain new members, and spread its message of terror.
Perusing the allegations, the Court framed the issue that whether the conduct of the social-media company defendants gives rise to aiding-and-abetting liability for the Reina nightclub attack.
The Court considered the issue in the backdrop of Justice Against Sponsors of Terrorism Act (JASTA) which imposes secondary civil liability on anyone “who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.” It was noted that nothing in the statute defines any of the critical terms in the phrase “aids and abets, by knowingly providing substantial assistance.” It was further observed that “aids and abets” in §2333(d)(2) refers to a conscious, voluntary, and culpable participation in another’s wrongdoing.
The Court referred to Halberstam v. Welch2, where the Circuit Court undertook an extensive survey of the common law with respect to aiding and abetting and clarified that those who aid and abet “a tortious act may be liable” not only for the act itself but also “for other reasonably foreseeable acts done in connection with it.”
It was pointed out that because the allegations in the instant case involve international terrorist networks and world-spanning internet platforms, the Court must ascertain the basic thrust of Halberstam‘s elements to determine how to adapt them to the facts of this case. The Court noted that at common law, the basic “view of culpability” animating aiding and abetting liability is that “a person may be responsible for a crime he has not personally carried out if he helps another to complete its commission. However, the concept of “helping” in the commission of a crime or a tort has never been boundless and ordinarily requires some level of blameworthy conduct; those limits ensure that aiding and abetting does not sweep in mere passive bystanders or those who, for example, simply deliver mail that happens to aid criminals.
The Court further stated that it thus is not enough for a defendant to have given substantial assistance to a transcendent enterprise. A defendant must have aided and abetted (by knowingly providing substantial assistance) another person in the commission of the actionable wrong, like in the instant case, an act of international terrorism. However, that does not require a strict nexus between the assistance and the wrongful act; defendants are liable for other torts that are the foreseeable risk of an intended tort, and an aider and abettor can assist someone without knowing all the details of his plan. A defendant’s role in an illicit enterprise can be so systemic and intentional that the defendant aids and abets each act of the enterprise.
As per the requirements of §2333(d)(2), the phrase “aids and abets, by knowingly providing substantial assistance” points to the elements and factors as stated in Halberstam. Those elements and factors should not be taken as inflexible codes but should be understood in light of the common law and applied as a framework designed to hold defendants liable when they consciously and culpably “participate in a tortious act in such a way as to help make it succeed.”
The Court noted that the plaintiffs have established that ISIS committed a wrong and that defendants knew they were playing some sort of role in ISIS’ enterprise. However, the plaintiffs’ allegations do not show that defendants gave such knowing and substantial assistance to ISIS that they culpably participated in the Reina attack. The Court pointed out that plaintiffs did not allege that ISIS or Masharipov used Twitter or other social media platforms to plan or coordinate the Reina attack. Nor did the plaintiffs allege that Twitter gave ISIS any special treatment or words of encouragement. There is no reason to think that defendants carefully screened any content before allowing users to upload it onto their platforms.
The Court pointed out that the plaintiff’s allegations rest less on affirmative misconduct and more on passive nonfeasance. To impose aiding-and-abetting liability for passive nonfeasance, there must be a strong showing of assistance and scienter.
The Court pointed out that plaintiffs’ complaint rests heavily on Twitter et al’s failure to act; yet no duty was identified that would require defendants or other communication-providing services to terminate customers after discovering that the customers were using the service for illicit ends. “Even if such a duty existed in this case, it would not transform defendants’ distant inaction into knowing and substantial assistance that could establish aiding and abetting the Reina attack”.
The Court noted that in the instant case, the plaintiffs’ failure to allege that social media platforms here do more than transmit information by billions of people, is insufficient to state a claim that defendants knowingly gave substantial assistance and thereby aided and abetted ISIS’ acts.
Considering Halberstam v. Welch, the Court thus stated that concepts of aiding and abetting and substantial assistance do not lend themselves to crisp, bright-line distinctions. The nexus between Twitter et al and Reina attack is far removed. Twitter et al designed virtual platforms and knowingly failed to do “enough” to remove ISIS-affiliated users and ISIS-related content from their platforms, yet plaintiffs failed to allege that defendants intentionally provided any substantial aid to the Reina attack or otherwise consciously participated in it.
[Twitter Inc. v. Taamneh, 2023 SCC OnLine US SC 16, decided on 18-05-2023]
*The judgment was authored by Justice Clarence Thomas
2. 705 F. 2d 472