Social media and secondary liability
On June 16, 2021, the Fifth Circuit held that social media providers cannot be held secondarily liable under the Anti-Terrorism Act (“ATA”) for aiding and abetting a foreign terrorist organization based on an individual’s acts within the United States. Plaintiff Retana, a victim of the July 2016 shooting committed by Micah Johnson (“Johnson”) in Dallas, Texas, along with his husband (together “Plaintiffs”) sued several social media companies (“Defendants”) alleging that Defendants were secondarily liable for Retana’s injuries under the ATA because “they provided material support to Hamas, a foreign terrorist organization that used Internet services and social media platforms to radicalize Johnson to carry out the Dallas shooting.” Specifically, Plaintiffs alleged that Defendants were secondarily liable under the ATA because Johnson was radicalized by Hamas’ posts and posts of other hate groups, such as the African American Defense League, since Johnson “liked” their pages. Five days prior to the shooting, Johnson also posted a “rant” against white people on social media, and, four days later the African American Defense League posted that it was “time to act.”
The district court dismissed the case under Rule 12(b)(6), finding that Plaintiffs failed to state a claim upon which relief could be granted. Plaintiffs appealed the dismissal of their secondary liability claim under the ATA.
The Appellate Court Opinion
The Fifth Circuit affirmed the District Court’s decision. The appellate court began by discussing secondary liability under the ATA, which was established in 2016 when Congress enacted the Justice Against Sponsors of Terrorism Act (“JASTA”). JASTA provides the following:
A plaintiff injured by (1) an “act of international terrorism” that is (2) “committed, planned, or authorized” by a designated foreign terrorist organization (3) may assert “liability … as to 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 found that Plaintiffs did not establish any of the foregoing factors. With respect to the first and second elements, the court explained that the shooting was committed by one individual entirely within the United States and thus, although Johnson may have been radicalized by Hamas’ posts on social media, this was not an “international” act of terrorism because Hamas did not plan or even take credit for the shooting.
With respect to the third element, the court also found that Plaintiffs could not establish that Defendants “knowingly provid[ed] substantial assistance” to Johnson or even to Hamas. A D.C. Circuit court in Halberstam v. Welch, 705 F.2d 472, 477 (D.C. Cir. 1983), established three factors for determining secondary liability for aiding and abetting:
(1) [T]he party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; and (3) the defendant must knowingly and substantially assist the principal violation.
Under the third factor, Plaintiff must establish: “(1) the nature of the act encouraged; (2) the amount of assistance given by the defendant; (3) the defendant’s presence or absence at the time of the tort; (4) defendant’s relation to the principal; (5) defendant’s state of mind; and (6) the period of the defendant’s assistance.” The Second Circuit, in Linde v. Arab Bank, PLC, 884 F.3d 314, 329 (2d Cir. 2018), further elaborated on the foregoing, stating that “aiding and abetting an act of international terrorism requires more than the provision of material support to a designated terrorist organization; it requires awareness.” (internal quotations omitted).
The court ultimately held that Plaintiffs’ amended complaint failed to establish the third factor of JASTA because the complaint only made conclusory statements that Defendants were “generally aware” of Hamas’ role in the shooting. Here, Johnson acted entirely alone – a “self-radicalized ‘lone wolf’”. The court held that merely “liking” “black separatist hate groups” who communicated with and were radicalized by Hamas on social media does not reach the threshold to establish a relationship between Johnson and Hamas or Johnson and Defendants, nor is it enough to even link Hamas to the shooting. Thus, the court held that the complaint did not sufficiently allege that Defendants “knowingly” and “substantia[lly]” assisted Johnson or Hamas.
Although the Retana court focused on 18 USC § 2333, this case sets forth a general framework for finding social media platforms secondarily liable in other circumstances. This case signals that Plaintiffs in future litigations will likely face a higher burden to find social media platforms liable for their users’ actions. Moreover, this case further establishes that although posts, tweets, groups, messages, photographs, etc. are hosted on social media platforms which automatically disseminate these posts, tweets, groups, messages, photographs, etc. globally, the applicability of international laws may depend solely on where one user resides.