Can families of ISIS-victims sue twitter?

By Professor Michael G. Faure

Recently it was brought in the news that families of Americans killed by ISIS in Belgium and France sued twitter for allegedly failing to keep members of the terrorist organisation of its platform. It was a typical case whereby American victims were killed in Europe but lawsuits are brought in the United States, probably on the basis of the nationality of the victims and their relatives, but maybe also on the link between twitter and the US. This lawsuit raises a number of interesting and legal questions. From a legal perspective the first question which obviously arises in such a tort suit is whether one can hold that the defendant, in this particular case twitter, has acted wrongfully. Were such a case not brought in the US but in any of the EU Member States, the question would arise whether the behaviour of twitter would have violated a standard of care or could be considered a fault. According to the newsflashes the plaintiffs argue in court that twitter violated the Anti-terrorism Act. If that were the case in most European legal systems such a violation of an explicit statutory obligation would almost automatically be considered wrongfulness. But the question would of course arise whether that violation of a statutory duty is as clear as the plaintiffs argue. In addition to wrongfulness plaintiffs would have to show damage, which unfortunately, would in this particular case not be the most difficult aspect of the suit. But probably the most complicated requirement from the plaintiffs’ perspective is that they would also have to show a causal link between any wrongfulness by twitter (assuming that there is) and the damage they have suffered. Most legal systems would at least require that plaintiffs show that but for the wrongfulness of twitter the damage would not have occurred. In other words, it would have to be clear (and proven by the plaintiffs) that without the wrongfulness by twitter (in presumably not preventing ISIS to use its platform) the damage would not have emerged or not in the same way. In legal terms: the wrongfulness by twitter would have to be the conditio sine qua non (CSQN) for the damage. But even if plaintiffs would be able to prove that most legal systems would hold that in addition to this physical CSQN connection (often considered as causality) plaintiffs should also show legal causation in order to make twitter liable. Depending upon the formulation in the legal system it usually means that even when the wrongfulness is considered CSQN plaintiffs would still have to show that the contribution was sufficiently important, in other words adequate to cause the damage. The defendant twitter in this particular case would undoubtedly hold that other factors about which twitter has no control whatsoever were much more important in the emergence of the damage.

In addition to those legal issues one could equally ask the question which social goals these types of lawsuits serve. From a victim’s perspective the goal is obviously compensation. In order to seek compensation victims often sue others than primary tortfeasors, especially when the primary tortfeasors (like terrorists) are insolvent and therefore “judgment proof”. That has brought about a tendency in tort law to bring lawsuits against a variety of gatekeepers, varying from banks lending money, auditors or related corporations. Twitter is yet another (gatekeeper) in the long list of “indirect tortfeasors” where victims who cannot claim against direct tortfeasor seem redress. As a compensation tool tort law always has its limits. The factual and legal barriers to obtain compensation via tort law are often high. That is why in many legal systems (both in the US and in Europe) alternative compensation mechanisms have been worked out to compensate victims of terrorism, for example via first party (victim) insurance, supported through a reinsurance by the state (via the Terrorism-risk Insurance Act – TRIA in the US). However, tort suits do not only have a compensatory function (although that may be the primary interest for the victim). Tort law equally provides incentives to prevention to both direct and indirect tortfeasors and thereby tort law also has an important social function. Even when the plaintiffs in New York may not be successful in obtaining compensation, the lawsuit provides an important signal to twitter (and obviously also to similar providers of internet services to terrorist networks), being that they need to be increasingly alert to whom they provide those services and for which they are specifically used. An exposure to tort liability may hence exercise an important preventive function. If that succeeds and providers of internet services more critically screen the use and users of their services, this could in the end reduce terrorism risk. If that were the case tort law would have exercised its preventive function.

Read more: Faure, M.G., “Attribution of Liability: An Economic Analysis of Various Cases”, Chicago-Kent Law Review, 2016, Vol. 91(2), 603-635.

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