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U.S. Courts’ Approach to Human Rights Claims Clouds Corporate Liability

An Exploration of Corporate Accountability, Human Rights and Content Regulation — Part 3

The multiple issues raised by Facebook’s role in the Rohingya genocide have prompted me to embark on a series of blog posts to explore corporate accountability, human rights and social media platform content regulation. In my last post, I explained how U.S. law shields web publishers from liability from suit over content posted by third parties — and that, even absent that shield, litigation is in many ways ill-suited to address the broader issues raised by Facebook’s power in Myanmar.

But some suits, particularly those with human rights claims, can raise awareness and force change by virtue of their moral force — even if they never reach a jury. Courts, however, in the U.S. and elsewhere, are still grappling with the question of whether, and under what circumstances, international human rights law applies to corporations at all.

In the United States, the Alien Tort Statute (ATS) serves as the primary vehicle to raise human rights claims against corporations. The ATS provides that federal courts have jurisdiction over actions brought by foreign nationals “for a tort only, committed in violation of the law of nations or a treaty of the United States.” Thus, under the ATS, people who are not citizens of the United States have access to its federal courts to bring civil suits arising out of wrongful acts that violate the law of nations or a treaty to which the United States is a party.

There is, of course, a catch (several actually). First, there is the question of what exactly it means to “violate the law of nations or a treaty of the United States.” In Sosa v. Alvarez-Machain, the Supreme Court held that the ATS embraces only those violations of the law of nations that arise out of “specific, universal and obligatory” norms — such as acts of piracy or crimes against ambassadors — which the First Congress likely had in mind when it passed the ATS in 1789. Courts have held that genocide, war crimes, and crimes against humanity are violations of the law of nations and thus may be raised in an ATS suit.

As for ATS claims arising out of a “treaty to which the U.S. is a party,” the Sosa decision limited those as well. The Court dismissed the plaintiff’s reliance on the International Covenant on Civil and Political Rights, because “the United States ratified the Covenant on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts.” Generally speaking, a non-self-executing treaty is a treaty that may not be enforced in the courts without prior implementing legislation by Congress. The three human rights treaties that the United States has ratified are all non-self-executing.

In the Facebook-Myanmar example, the U.N. Human Rights Council released a report charging that “Facebook has been a useful instrument for those seeking to spread hate, in a context where for most users Facebook is the internet.” The report recommended that six Myanmar military officers should be prosecuted for genocide, including Senior-General Min Aung Hlaing (2.9 million Facebook followers). Facebook did not remove the accounts of those officers until the day that the initial report was released, despite earlier warnings that Facebook “substantively contributed” to the spread of anti-Rohingya hate speech in Myanmar.

The recently-released full report of the UN Fact-Finding Mission in Myanmar found that anti-Rohingya content on Facebook included several themes, including labeling the Rohingya as an existential threat to the country and to Burmese racial purity, “and of Islam as a threat to Buddhist religious sanctity and its status in Myanmar.” The report further found that, “death threats, incitement to violence and discrimination, and online harassment are common features as well, not only against the Rohingya themselves but also against moderate commentators, human rights defenders and ordinary people who have views that differ from the official line.”

The UN Fact-Finding Mission also noted that, “given Facebook’s dominance in Myanmar,” several Facebook accounts were “particularly influential considering the number of followers (all over 10,000, but some over 1 million), the high levels of engagement of the followers with the posts (commenting and sharing), and the frequency of new posts (often daily, if not hourly).” It concluded,

“The Mission has no doubt that the prevalence of hate speech in Myanmar significantly contributed to increased tension and a climate in which individuals and groups may become more receptive to incitement and calls for violence. This also applies to hate speech on Facebook.”

Incitement of mass murder can constitute a crime against humanity. In the Nuremberg trials, Julius Streicher, the publisher of the anti-Semitic paper Der Stürmer, was found guilty of crimes against humanity and executed. The judgment specifically referred to articles that demanded annihilation and extermination of Jewish people “in unequivocal terms.” The court continued, “With knowledge of the extermination of the Jews in the Occupied Eastern Territory, this defendant continued to write and publish his propaganda of death” and held that his “incitement to murder and extermination” constituted a crime against humanity.

View of the defendants in the dock at the International Military Tribunal trial of war criminals at Nuremberg.

But Facebook’s failure to promptly remove hate speech from its platform is, of course, significantly different from Streicher’s years of speaking and writing fomenting hatred against Jewish people and specifically calling for their extermination. Whether Facebook’s inaction suffices for liability for the Myanmar military’s human rights abuses committed against the Rohingya remains to be seen.

Courts are split over what degree of corporate involvement in human rights abuses is required to give rise to liability under the ATS. In Presbytarian Church of Sudan v. Talisman, for example, the Second Circuit held that a corporation is not liable unless it acted with the purpose to further human rights abuses. Thus, in that case, it was not enough that the company improved roads and airports with the knowledge that the Sudanese military might use them to mount attacks on civilians, nor was it enough that the company was aware that the Sudanese military violently removed non-Muslims from oil exploration areas. Rather, the plaintiffs had to show that the company acted with the purpose to support the Government’s attacks on civilians. This is a high evidentiary bar indeed.

Other federal circuit courts, however, have found that a corporation can be liable for aiding and abetting if it knowingly and substantially assisted in the human rights violation. In Doe v. Unocal, for example, the Ninth Circuit held that Unocal could be liable for aiding and abetting based on allegations that it hired the Myanmar military to provide security and build infrastructure along its pipeline route despite its awareness that the military employed forced labor to do so. Similarly, in Doe v. Nestle, the plaintiffs sufficiently stated a claim that Nestle and its co-defendants aided and abetted child slavery based on allegations that they provided money, equipment, and training to cocoa farmers on the Ivory Coast, knowing that it would facilitate the use of forced child labor, and that they did so with the unilateral goal of finding the cheapest sources of cocoa.

In the Facebook example, U.N. investigators did warn that its platform was used to spread hate speech against the Rohingya. But the persecution of the Rohingya long predates the advent of Facebook in Myanmar. Moreover, Facebook did not itself create the content at issue — it merely failed to promptly remove it. Thus, even in those circuits where the the knowledge standard applies, courts are likely to be reluctant to hold that Facebook’s failure to take prompt action against anti-Rohingya hate speech amounted to knowing, substantial assistance.

Moreover, even absent questions concerning corporate aiding and abetting liability, substantial hurdles to litigation remain. In the U.S. court system, there is a presumption against extraterritoriality, meaning that courts presume that U.S. laws do not apply outside of the U.S. unless Congress explicitly states otherwise. In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court applied this presumption to ATS claims, holding that plaintiffs could only bring suits that “touch and concern” the United States “with sufficient force.” Mere corporate presence in the United State is not enough. In Kiobel, the claims failed to meet this requirement, as the allegations concerned foreign oil companies aiding and abetting attacks on Ogoni villages in Nigeria. Post-Kiobel, the exact contours of this requirement remain unclear. Courts have reached different conclusions with regard to whether the specific wrongful conduct must take place in the United States or whether it is enough that the defendant is a United States citizen or, in the case of a corporation, is domiciled in the United States.

Finally, in Jesner v. Arab Bank, decided earlier this year, the Supreme Court held that the ATS did not apply to wrongful acts committed by foreign corporations. The Supreme Court, however, did not address whether domestic corporations could be sued under the ATS, and thus left open the question of whether U.S. corporations can be held liable in U.S. courts for violations of the law of nations. The circuit courts of appeal disagree on this fundamental issue as well.

Returning to the Facebook example, my last post explained that Section 230 of the Communications Decency Act likely would bar any claims that arise from the content published by third parties on its platform. But even assuming that Section 230 were not a barrier, this post illustrates that there is much uncertainty in United States law regarding corporate liability for human rights violations.

Other countries have taken a more proactive approach, rather than leave it to the court system to sort out corporate accountability for human rights abuses.

In France, the duty of vigilance law, for example, establishes parent companies’ obligation to identify and prevent human rights violations resulting from the operations of all entities under their control. Additionally, the Swiss National Council is considering a bill to introduce mandatory human rights due diligence for parent companies.

Similar legislative action in the United States is almost certainly a non-starter with the current Congress. Until the Supreme Court takes up the ATS again, or Congress acts to clarify the law or place affirmative obligations on corporations, victims of corporate complicity in human rights violations will have to continue to bring their ATS claims, at great expense, over many years — with no guarantee that they will achieve some measure of justice.

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