Complicity of Social Media Companies in Inciting Genocide Hakim A. Inciting Genocide on Social Media As a threshold matter, a social media company’s employee cannot be complicit in directly and publicly inciting genocide unless the incitement has been committed on social media. Four elements must be satisfied in order for someone to be guilty of incitement: (1) the incitement must be intentional (mens rea); 2) it must be public; (3) it must be direct; and (4) the defendant must have the specific intent to cause genocide. The question of whether an incitement is intentional—distinct from the question of specific intent—turns on whether the statement itself is intentional. Accordingly, in the context of social media, an incitement will almost always be intentional, given that one rarely posts online accidentally. Whether an incitement is public or direct is a more difficult inquiry. But because social media is, by its nature, a “technological means of mass communication,” proving incitement as public is less of an obstacle.162 In this way, incitements on social media are no different from Streicher’s weekly newspaper or Nahimana’s radio broadcast.163 They all involve the widespread dissemination of information to external audiences and are therefore all public. There are some notable distinctions, however, between social media and these other mediums, at least with respect to certain applications of social media. For example, using social media for private messaging would probably not be public. Moreover, if a social media user has tailored his or her privacy settings such that the incitement is viewable only among a small number of individuals, the post may not satisfy the public requirement.164 But generally speaking, the use of social media to post incitements for others to view will likely be public. With respect to Myanmar, a 2018 report by the U.N. Independent International Fact-Finding Mission on Myanmar (IIFFMM) revealed that Tatmadaw officials routinely used social media to disseminate information about the Rohingya to nationwide audiences.165 Any incitement was therefore public, more similar to a newspaper or a radio broadcast than private correspondence among a small number of individuals. The next question is whether the incitement is direct. As stipulated in Section II.B., while a vague suggestion is not direct, an incitement need not be an explicit 162 163 164 165 See CLICC, supra note 56, at 271 n.272 (noting that an incitement is public where a “technological means of mass communication” is deployed). See Prosecutor v. Nahimana, Case No. ICTR 99-52-T, Judgment and Sentence, ¶ 486 (Dec. 3, 2003), http://perma.cc/9PWE-ERDZ; United States v. Streicher, Judgment, 301–03 (Int’l Military Trib. Oct. 1, 1946), http://perma.cc/6JUR-L9TZ. See David Nield, How to Control the Privacy of Your Social Media Posts, WIRED (Oct. 20, 2019), http://perma.cc/M73D-GLUT (explaining the privacy options on various social media). Detailed Report, supra note 11, at ¶¶ 1327–28; see also Paul Mozur, A Genocide Incited on Facebook, With Posts from Myanmar’s Military, N.Y. TIMES (Oct. 15, 2018), http://perma.cc/MB9K-2K5T. Summer 2020 107