Responsibility of Social Media Intermediary concerning Core Crimes

I. Introduction

The Social media intermediary are very widely used over all over the world and it is used my majority of the population all over the world. It can easily be used to communicate information through posts which can constitute direct and public incitement to genocide under article 25(3)(e) of the INTERNATIONAL CRIMINAL COURT statue because

• The posts can be directly and publicly incite genocide
• The author of the posts can intended to directly and publicly incite genocide

The posts on social media intermediary are helpful in fulfilling the condition of article 25(3)(e) of INTERNATIONAL CRIMINAL COURT statue as they can publicly incite genocide became they help in a call to commit genocide by a medium of mass communication as a call to commit genocide communicated “by technical means of mass communication, such as by radio or television” or “in the press, through... The cinema or other ways of reaching to public” constitute public incitement⁴. The use of social media intermediary as a whole or forming a group on social media intermediary can be considered to be a specific medium of communication as similar to analogy of that of radio broadcast because of two simple ways :1) access a radio set and 2) tune into specific radio channel. Similarly these two steps can be used to see posts on social media intermediary for communication of posts of incitement to genocide.

1) Social media aid and abetment (assistance) in providing resources to incite core crimes

• Article 25(3)(e) of the INTERNATIONAL CRIMINAL COURT statue “ a person shall be criminally responsible and liable for punishment.... If that person.... In respect of crimes of genocide, directly and publicly incites others to commit genocide” and the social media intermediary can come under the liability upon them and their CEO for criminally responsible for incitement on their own platform.

(1) A person is responsible for the media he controls: the CEO can be responsible for the content and consequences of the posts under the control of their own social media intermediary and is responsible for the media that he controls as he provides a forum for the media’s content and has the power to review it and ban it when it is published whether as an editor, publisher or as an owner⁵. The touchstone of responsibility is control over the media content as in most popular case of SIIREK, Siirek was a major shareholder of a company that owned a weekly review that published two readers letter that provoked enmity and hatred and Siirek argues that he should not be responsible for the content of the letters as he only has a commercial and not an editorial relationship with the review but ECtHR rejected the argument because he was an owner and as such had the power to shape the editorial direction of the review.⁶

(2) The principle of attributing responsibility on the basis of control applied equally in the context of social media as the owner of social media intermediary should be equally, if not more be responsible for their content because they are able to screen content and are actively involved in the selection of content targeted audience.⁷ As a owner of social media intermediary who owns an unlawful content on his platform and does not remove it remains liable for the posts. Similarly in Myanmar, Facebook was used as a platform to spread misinformation and advocating ethnic cleansing of Rohingya, but Facebook as a social media intermediary made decision about what to take down from their platform as violating their policies but if any other platforms who does not take similar posts down they should be help under the criminal responsibility.

In Tamiz v Google , the EWCA held that Google who owned the blogging Platform in Question to be held liable as a publisher for the defamatory comment of a blogger from the time it received a notice about the harmful content until it was removed from the service, the EWCA noted that it was a “gigantic noticeboard” on which others may post material and Google “can readily remove or block access to any content that does not comply with its terms”⁸

• Social media intermediary can be held on the ground of

(a) Aiding, abetting or otherwise assisting in the direct and public incitement of genocide, including providing the means for it

(b) Direct and public incitement of genocide and acting with the purpose of facilitating it comes within the jurisdiction of the International criminal court.

• A person aids ,abets or otherwise assist a crimes if Permit the use of resources that he controls in order to facilitate the perpetration of a crime. The social media intermediaries are in control and in position of what all to allow on their platform and what not , in. Cases where the content is violating the laws but still are allowed to be shown on their platform they are in a way assisting the crimes of genocide.
• Under article 25(3)(e) of the INTERNATIONAL CRIMINAL COURT statue, all that is necessary is more than a de minimis contribution to the crime, there is no requirement for a substantial contribution to the crime. As in the draft of the INTERNATIONAL CRIMINAL COURT statue it clearly excluded the requirement of a substantial contribution for the criminal responsibility to be established under article as the provision in the ILC draft code of crimes required a “direct and substantial contribution” however the finalised article deliberately excluded this requirement under article 25(3)(c).

2) Incitement as a crime within INTERNATIONAL CRIMINAL COURT jurisdiction

• Social media intermediaries are responsible for aiding, abetting or otherwise assisting the incitement of genocide because incitement of genocide is “a crime within the jurisdiction of the court” as under article 25(3) INTERNATIONAL CRIMINAL COURT statue. Incitement of genocide under Article 25(3)(e) of the INTERNATIONAL CRIMINAL COURT statue is a standalone crime within the jurisdiction of the INTERNATIONAL CRIMINAL COURT despite not being indulged in the defamation of the crime of genocide under Article 6 of the INTERNATIONAL CRIMINAL COURT statue.
• Internet social media intermediaries have the responsibility to respect internationally recognised Human rights and failing to do the same to removing any content makes them liable. Under the internet intermediary liability regimes – both the safe harbour regime as well as the strict liability regime – the need to hold intermediaries liable for third party content have been recognized, especially where content violates their community standards policies or content is illegal in nature⁹. Providing the platform for incitement or not removing the content violating international community guidelines is also a form of incitement and the social media intermediaries who are not concerned about these should be legally bound by any law. So having duty they need to care more about the content on their own platform and be more active about the use of their platform so it does not get used by non state parties against the state
• Direct and public incitement of genocide is an inchoate offence under INTERNATIONAL CRIMINAL COURT statue. A person can be criminally responsible for incitement of genocide even if genocide does not occur or is not attempted.¹⁰ It necessarily follows that incitement of genocide is not merely a mode of participation but is instead a standalone crime under INTERNATIONAL CRIMINAL COURT statue. The genocide convention and the ad hoc tribunal have long recognised incitement of genocide as a standalone crimes, this allows the prosecution of individuals for incitement without needing to wait for their incitement to be successful.

3) Omissions amounting as a conduct under INTERNATIONAL CRIMINAL COURT statues

• Individual criminal responsibility under article 25 (3)(e) and (e) of the INTERNATIONAL CRIMINAL COURT statue can be established by way of omission when (a) there was a legal duty upon the accused to act and (b) the accused had the capacity to fulfil that legal duty.¹¹
• The ICTY AC accepted this mode of liability in Tadic¹² while ICTY TV in Karadzic held that the “physical elements of aiding and abetting consists of acts or omission specifically directed to assist, encourage or lend support of a crime”¹³ . So the social media intermediaries have a duty to prevent genocide by taking down posts inciting genocide, individuals controlling such social media intermediary have specific legal obligations under National law to remove harmful content
• Similarly content hosts whether natural or legal person¹⁴ in the European union are subject to a notice and takedown rule that imposes a duty to Remove problematic content once they are notified of the content. Content hosts can also be subjected to duties of care reasonable expected of them in order to detect and prevent certain types of illegal activities and are required to implement specific monitoring obligations¹⁵. Internet intermediaries also have the duty to remove posts when there is a direct threat to public safety, or of illegal activities.¹⁶ Moreover, it has previously been recognized that social media platforms should apply international human rights law as basis for content moderation on their platforms,¹⁷ and are governed by the UN Guiding Principles on Business and Human Rights to respect human rights.¹⁸
• Article 5 of the European convention on the prevention of terrorism prohibits the “distribution or otherwise making available of a message to the public, with the intent to incite the commission of a terrorist offence”.¹⁹

4) INTERNATIONAL CRIMINAL COURT jurisdiction over cyberspace in non state party to statutes

• INTERNATIONAL CRIMINAL COURT has jurisdiction to prosecute social media intermediaries if

(a) Part of material element of the crime in question occurred in a state party or

(b) Effects of the actions felt on the state party

• If any posts commit incitement of genocide and the part of martial elements of the crime occurred on the territory of a state party then INTERNATIONAL CRIMINAL COURT has jurisdiction under article 12(2)(a) of INTERNATIONAL CRIMINAL COURT statue. As in PTC in Myanmar 2019 “under CIL states are free to assert territorial criminal jurisdiction even if a part of criminal conduct takes place outside it’s territory, as long as there is a link with their territory” ²⁰.
• The effect doctrine has is applicable even when a state may assert territorial jurisdiction if the crime takes place outside the state territory but produces effect within the territory of the state.²¹
• The INTERNATIONAL CRIMINAL COURT jurisdiction under article 12(2)(a) of the INTERNATIONAL CRIMINAL COURT statue also has the effect of doctrine for crimes committed in cyberspace as the borderless characteristics of cyberspace does not prevent the INTERNATIONAL CRIMINAL COURT from exercising it’s jurisdiction where serious crimes of concern to international community have occurred., The INTERNATIONAL CRIMINAL COURT is capable of exercising jurisdiction over such crimes where the effect of such crimes have been felt in a state party and must do so. Article 21(1)(b) of the INTERNATIONAL CRIMINAL COURT statue permits the application of the effects doctrine as a “ rule of international law” states can assert criminal jurisdiction when they suffer from harmful effects of crimes committed over the internet.
• The effects doctrine allows a court to claim jurisdiction for the conduct of a foreign national arising outside the territory of the state but having substantial effect within that territory. The PCIJ²² by deserting the need of the offender to be present at the territory confirmed the doctrine of POE.
• It has been considered as a form of territorial principal which can be read under Art. 12(2)(a) of the INTERNATIONAL CRIMINAL COURT St. A clear establishment of sufficient connection and reasonable foreseeability between the conduct and the effects occurring in the territory of the state party would permit the court to claim jurisdiction which is in adherence to international law.This doctrine has been widely adopted by the states.²³ Thus, the effects doctrine is another way for the localisation of the criminal conduct.
• The Council of Europe Committee of Ministers have also confirmed the effects doctrine in establishing jurisdiction over crimes committed through the internet in its Explanatory Report on the Convention on Cybercrime, stating that a State should not only “assert territorial jurisdiction if both the person attacking a computer system and the victim system are located within its territory”, but also “where the computer system attacked is within its territory, even if the attacker is not”.
• Moreover The presence of computer servers in a non state party cannot be allowed to operate as a protection against liability, even if the content is hosted in that server. This assertion has been supported by the Canadian courts by claiming jurisdiction if there has been dissemination of messages over internet even if the originating servers are located in other countries. The Convention on cybercrimes also states that, if the electronic data is available to public and the servers transmitting those data are located abroad, the State can exercise extraterritorial jurisdiction²⁴.So the defendant cannot claim the defence of the establishment of the servers in a non state party.

II. Conclusion

At present social media intermediaries can escape from the liability of their platform being used for communication of incitement of genocide if the company is head quartered in a non state party and the effect of their platform misuse is also on the state which is not the party to international criminal court statute but if any of the above two falls in the territory of state party we can try social media intermediaries for their criminal responsibility at international community and this is the only option left in making them responsible for their acts as and only International criminal court has the jurisdiction to try such cases if it involved the core crimes. But the scope of jurisdiction needs to be increased to cover the core crimes happening in a state which is not a party to International criminal court statute and for that a new treaty or convention be agreed upon between all the countries so any where in the world there is a misuse of social media intermediaries they can be held responsible for it along with the other accused evolved in core crimes. The issue of cyberspace is new and its uses are beyond anybody’s thinking so it needs to be addressed as soon as possible. So the Crimes in this advanced technological era have more exponential growth and reach, and social media intermediaries are independent of liability under local jurisdiction of any country apart from the country they are having be equally criminally responsible, and Social media intermediary having fully control over the content being uploaded on their platform and having power to remove that content or promoting any content over their platform for facilitating any crime and still not coming under the jurisdiction of many nations of whose citizens are using it can be very dangerous to maintain law and order in those countries. Specially in cases where social media platforms are being used for communication for mass crimes like genocide, war crimes and crimes against humanity. the jurisdiction of International criminal court in respect to Rome statue extending responsibility on social media intermediary pertaining to cyberspace usage for the purpose of incitement to genocide. And the present legal framework is sufficient to deal with the problem relating to crimes committed on cyberspace and new laws are needed which will have potential of dealing with these situation more effectively.

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