In May 2023 the US Supreme Court held that the Defendants Facebook, Twitter, and Google (which owns YouTube) could not be sued for “aiding and abetting” ISIS to commit a terrorist attack on the Reina nightclub in Istanbul killing a US national whose family claimed damages.

The following extracts from the headnote of the media case report are worth reading (our headings).

Nature of Facebook/Twitter/google platforms

The parties today agree on the basic aspects of these platforms: Billions of people from around the world have signed up for them and upload massive amounts of content each day. Defendants profit from that content by placing advertisements on or near it and use “recommendation” algorithms that match content, advertisements, and users based on information about the use, advertisement, and content being viewed. As the parties represent things, the algorithms here match any content with any user who is more likely to view that content, and the platforms perform little to no front-end screening on any content before it is uploaded. Plaintiffs, however, allege that for several years the companies have knowingly allowed ISIS and its supporters to use their platforms and “recommendation” algorithms as tools for recruiting, fundraising, and spreading propaganda; plaintiffs further allege that these companies have, in the process, profited from the advertisements placed on ISIS’ tweets, posts, and videos.

US statute re aiding & abetting terrorism

In 2016, Congress enacted the Justice Against Sponsors of Terrorism Act (JASTA) to impose 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.” §2333(d)(2). The question here is whether the conduct of the social-media company defendants gives rise to aiding-and-abetting liability for the Reina nightclub attack. Pp. 6–8.

Nothing in the statute defines any of the critical terms in the phrase “aids and abets, by knowingly providing substantial assistance.”

Meaning of ‘aiding & abetting’

Previous case law confirms that “aids and abets” in §2333(d)(2) refers to a conscious, voluntary, and culpable participation in another’s wrongdoing.

The surveyed cases rest on three main elements: (1) there must be a wrongful act causing an injury performed by the person whom the defendant aided; (2) at the time assistance was provided, the defendant must have been “generally aware of his role as part of an overall illegal or tortious activity;” and (3) the defendant must have “knowingly and substantially assist[ed] the principal violation.” 705 F. 2d, at 477. The lower court articulated six factors to help determine whether a defendant’s assistance was “substantial.” They are (1) “the nature of the act assisted,” (2) the “amount of assistance” provided, (3) whether the defendant was “present at the time” of the principal tort, (4) the defendant’s “relation to the tortious actor,” (5) the “defendant’s state of mind,” and (6) the “duration of the assistance” given. [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.”

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.”

In delict law, many cases have thus required a voluntary, conscious, and culpable participation in the wrongful conduct to establish aiding and abetting. In doing so, they further articulated Halberstam’s framework to capture those limits. As above, that framework requires that the defendant give knowing and substantial assistance to the primary tortfeasor; notably, courts often viewed those twin requirements as working in tandem, with a lesser showing of one demanding a greater showing of the other to establish a conscious, culpable participation in the tort.

In the delict context, liability is imposed only when someone commits (not merely agrees to commit) an actual delict. And in this case, the statute limits that liability to injuries caused by an “act of international terrorism,”. 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 4 TWITTER, INC. v. TAAMNEH Syllabus actionable wrong—here, 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 delict and an aider and abettor can assist someone without knowing all the details of his plan.

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[d] in” a tortious act in such a way as to help “make it succeed.”

Mere creation of media platforms not culpable

Defendants’ mere creation of their media platforms is no more culpable than the creation of email, cell phones, or the internet generally. And defendants’ recommendation algorithms are merely part of the infrastructure through which all the content on their platforms is filtered. Moreover, the algorithms have been presented as agnostic as to the nature of the content.

Second, plaintiffs provide no reason to think that defendants were consciously trying to help or otherwise participate in the Reina attack, and they point to no actions that would normally support an aiding-and-abetting claim. Plaintiffs’ complaint rests heavily on defendants’ failure to act; yet plaintiffs identify no duty that would require defendants or other communication-providing services to terminate customers after discovering that the customers were using the service for illicit ends.

In this case, the failure to allege that the platforms here 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. A contrary conclusion would effectively hold any sort of communications provider liable for any sort of wrongdoing merely for knowing that the wrongdoers were using its services and failing to stop them. That would run roughshod over the typical limits on delict liability and unmoor aiding and abetting from culpability.