The Use of Social Media Evidence in International Courts: Where is the Line?

A blog post by Juliana Palmieri, Junior Associate.

Free speech, the beacon of democracy around the globe, no longer takes place in public parks or town squares. Instead, the sharing of ideas now takes place on private, online platforms. With the click of a button, a thought can be ‘blasted-out’ to millions, internationally. This ‘blast’ via the Internet has created a sense of global-activism and has brought attention to many international crises.[1] Activists around the globe can use the internet, and its various social platforms, to schedule protests, to coordinate efforts, and to inform the world.[2] The ease in communicating with millions quickly transforms local heartaches into global sorrows. For example, the Syrian war was brought to the attention of the world after a picture of a very young, Syrian boy lying face-down on a beach in Turkey was ‘blasted’ out via Twitter. [3] The emotional response to this picture instantly prompted global support and aid for the Syrian refugees.[4] In these instances, speech on such a grand scale has created connection with our fellow humans.[5]

However, the world has also witnessed a dark side to this new, speech-forum. For example, the military in Myanmar set up “troll accounts and celebrity pages” to “distribute lurid photos, false news, and inflammatory posts.”[6] This stream of inflammatory posts created a vast divide among all people living in Myanmar which quickly led to mass executions, rapes, and the burning of villages. Here, the ease and ability to ‘blast out’ inflammatory or false information has become relevant for charges of genocide.[7] This begs the question, in addition to the speaker or ‘blaster’, are others to blame?

This behavior, this dark side, only recently has been reviewed by international courts.[8] For example, in Sweden, Facebook posts were used as evidence against the Facebook user, marking the first time the International Criminal Court heavily relied upon Facebook evidence for an arrest warrant of the user.[9] At what point do these private corporations’ philanthropic goals start to address their role in major atrocities incited by words posted on their platforms? On the other hand, promoting healthy debate through exchange of ideas without fear of repercussion is incredibly important in sustaining democracies and human rights across the globe. Can private companies be held liable for allowing others to “participate in the marketplace of ideas,” an ideal so vital to democracy?[10] Where is the line?

[1] Neriah Yue, The “Weaponization” of Facebook in Myanmar: A Case for Corporate Criminal Liability, 71 Hastings L.J. 813, 817-18 (2020).

[2] Id.

[3] Peter Bouckaert (@bouckap), Twitter (Sep. 2, 2015, 7:29 AM), https://twitter.com/bouckap/status/639037338362978304.

[4] Diane Cole, Study: What Was The Impact Of The Iconic Photo Of The Syrian Boy?, National Public Radio (Jan. 13 2017, 4:06 PM),  https://www.npr.org/sections/goatsandsoda/2017/01/13/509650251/study-what-was-the-impact-of-the-iconic-photo-of-the-syrian-boy.

[5] See generally id.

[6] Neriah Yue, The “Weaponization” of Facebook in Myanmar: A Case for Corporate Criminal Liability, 71 Hastings L.J. 813, 820 (2020).

[7] Emma Irving, ‘The Role of Social Media is Significant’: Facebook and the Fact Finding Mission on Myanmar, OpinioJuris (Sep. 7, 2018), http://opiniojuris.org/2018/09/07/the-role-of-social-media-is-significant-facebook-and-the-fact-finding-mission-on-myanmar/.

[8] Emma Irving, And So It Begins… Social Media Evidence In An ICC Arrest Warrant, OpinioJuris (Aug. 17, 2017), http://opiniojuris.org/2017/08/17/and-so-it-begins-social-media-evidence-in-an-icc-arrest-warrant/ (Explaining how an arrest warrant was issued based on evidence posted on Facebook by a Syrian national).

[9] Id.

[10] See generally David L. Hudson, In the Age of Social Media, Expand the Reach of the First Amendment, A.B.A. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/in-the-age-of-socia-media-first-amendment/ (last visited Jan. 12, 2020) (discussing whether the First Amendment should be expanded with the use of social media platforms in the U.S. as a form of public speech).

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