826 HASTINGS LAW JOURNAL [Vol. 71:813 abuse.97 This theory implicates individuals if they have knowledge and committed a substantial act in furtherance of the human rights violation.98 In Prosecutor v. Duško Tadić, the International Criminal Tribunal for the Former Yugoslavia (ICTY) defined intent as “awareness of the act of participation coupled with a conscious decision to participate by planning, instigating, ordering committing or otherwise aiding and abetting in the commission of a crime.”99 The International Criminal Tribunal for Rwanda (ICTR) in Prosecutor vs. Jean-Paul Akayesu further clarified intent of complicity in genocide as “knowingly” such that the “accomplice knew of the assistance he was providing in the commission of the principal offense.”100 As such, the substantial act must have been committed “on the basis that . . . [the corporation’s] activities or operational choices . . . contributed, in some material way, to the gross human rights abuses.”101 International criminal law remains unclear as to what state of mind is required to trigger corporate criminal liability. Although there is no current forum to hear these cases, this Note explores the theoretical principles of corporate criminal complicity as applied to social media corporations. III. THE APPROPRIATE STANDARD FOR SOCIAL MEDIA COMPANIES There are a number of considerations in determining the standard for criminal liability for social media corporations. On one hand, imposing harsh standards for criminal liability may result in social media companies refusing to operate in the host country. The fear of burgeoning criminal liability may also encourage social media companies to over-censor content and thus, lead to another form of speech suppression.102 On the other hand, the lack of criminal liability may give social media companies free rein to operate with impunity. Social media companies may continue to enter markets that have the potential to misuse their platforms without a second thought as to their responsibility. Neither extreme is ideal. As discussed in Subpart II.A, the original advocates of corporate liability outlined concrete guidelines to primarily encourage corporations to uphold international human rights.103 Because corporations are fictional legal entities 97. See Cassel, supra note 68, at 308–309. 98. Press Release, Int’l Criminal Tribunal for the former Yugoslavia, Tadić Sentence Increased to 25 Years Imprisonment, ICTY Press Release JL/P.I.S./447-E (Nov. 11, 1999). 99. Id. 100. Prosecutor v. Jean-Paul Akayesu, Case No. ICTR 96-4-T, Judgement (Int’l Crim. Trib. for Rwanda Sept. 2, 1998); see also Michael J. Kelly, Prosecuting Corporations for Genocide Under International Law, 6 HARV. L. & POL’Y REV., 339, 340 (2012). 101. Zerk, supra note 58, at 30. 102. David Ingram, Foreign Governments are Fed Up With Social Media—and Threatening Prison for Tech Employees, NBC NEWS (Apr. 12, 2019, 9:07 AM), https://www.nbcnews.com/tech/tech-news/foreigngovernments-are-fed-social-media-threatening-prison-tech-employees-n993841 (“Faced with criminal penalties, companies will err on the side of removing content.” (quoting Eileen Donahoe, executive director of Stanford University’s Global Digital Policy Incubator)). 103. See supra Subpart II.A.