{"id":3700,"date":"2021-02-24T16:36:40","date_gmt":"2021-02-24T22:36:40","guid":{"rendered":"http:\/\/blogs.luc.edu\/compliance\/?p=3700"},"modified":"2021-02-24T16:36:40","modified_gmt":"2021-02-24T22:36:40","slug":"may-it-please-the-court-exploring-facebooks-oversight-board-formation-and-decisions","status":"publish","type":"post","link":"https:\/\/blogs.luc.edu\/compliance\/?p=3700","title":{"rendered":"May it Please the Court: Exploring Facebook\u2019s Oversight Board Formation and Decisions"},"content":{"rendered":"

Sarah Ryan <\/em><\/span><\/p>\n

Associate Editor<\/em><\/span><\/p>\n

Loyola University Chicago School of Law, JD 2022<\/em><\/span><\/p>\n

Last Friday, Facebook\u2019s Oversight Board (\u201cthe Board\u201d) issued its latest verdict<\/a>, overturning the company\u2019s decision to remove a post that moderators alleged violated Facebook\u2019s Violence and Incitement Community Standard<\/a>. This judgment brings the Board\u2019s total number of decisions to seven, with the Board overturning the Facebook\u2019s own decision in five out of the six substantive rulings it has issued. The Board\u2019s cases have covered several topics so far, including nudity<\/a> and hate speech<\/a>. Because Facebook\u2019s Oversight Board does not have any modern equivalents, it is worth exploring what went into this experiment\u2019s formation.<\/span><\/p>\n

Developing Facebook\u2019s \u201cSupreme Court\u201d<\/strong><\/span><\/p>\n

While fashioning itself as a haven of free expression<\/a> on the Internet, Facebook has long been the target of criticism that the conspiracy theories, hate speech, and disinformation that run rampant on the platform threaten democracy<\/a>. Because the First Amendment<\/a> complicates the U.S. government\u2019s regulation of \u2018free speech,\u2019 Facebook, like other technology platforms, has exercised nearly unlimited control over content removal. Over time, Facebook developed its own set of Community Standards<\/a> to ensure that its two billion global users \u201cfeel empowered to communicate\u201d but are protected against the risk of harm or abuse that certain content presents.<\/span><\/p>\n

In 2019, in response to even more concerns about Facebook\u2019s threat to democracy<\/a> and calls<\/a> for transparency, accountability, and due process, the company decided to create an independent organization to review its moderators\u2019 decisions, much like the U.S. Supreme Court reviews judicial decisions by lower courts. Previously<\/a>, users could object to content removal by appealing the removal to Facebook\u2019s community moderation team, but that was the extent of any dispute. However, Mark Zuckerberg, Facebook\u2019s co-founder and CEO, has expressed<\/a> his current belief that he and the company should not have complete control over decisions about free expression, political discourse, and safety.<\/span><\/p>\n

In creating the new group, Facebook sought input<\/a> from both the company\u2019s critics and supporters by conducting research on a global scale, with more than 650 people in 88 different countries. This global consultation process resulted in the Oversight Board\u2019s charter<\/a> and governance design, as well as the establishment of an independent Oversight Board Trust<\/a>. Each entity has separate roles and responsibilities, which is meant to help \u201censure mutual accountability.\u201d Facebook began the member selection process with four co-chairs, who then selected the Board\u2019s first sixteen additional members<\/a>, experts who represent twenty-seven countries and a variety of disciplines like the law and human rights.<\/span><\/p>\n

Board members are not Facebook employees, but instead contract directly with the Oversight Board, and their six-figure salaries are funded by Facebook through the \u201cindependent\u201d Oversight Board Trust. Anyone can recommend oneself or another candidate for board membership, through a recommendations portal<\/a> operated by the firm Baker McKenzie.<\/span><\/p>\n

How the decisions work? <\/strong><\/span><\/p>\n

Users of Facebook and Instagram (and Facebook itself<\/a>) can now appeal the Facebook community moderation team\u2019s decisions regarding \u201ctakedowns<\/a>\u201d to the independent Oversight Board, which renders decisions that are supposedlybinding<\/a>, even if they overrule Zuckerberg himself. According to Facebook, around two hundred thousand posts become eligible for appeal every day, but the Board selects only a small number of \u201chighly emblematic cases<\/a>\u201d to review. Each case is reviewed by a panel of five randomly selected members, who remain anonymous. The Board\u2019s charter confirms that the expert panels should generally defer to past decisions in an attempt to set some sort of precedent with the tiny fraction of cases that the Board will actually be able to review. \u00a0<\/span><\/p>\n

While many have labelled the Board as Facebook\u2019s private \u201cSupreme Court,\u201d there are important differences between the bodies. First, unlike the U.S. Supreme Court, users submit a written brief<\/a> arguing their case in lieu of oral arguments. In turn, a Facebook representative files a response brief explaining the company\u2019s reasoning for removing the content. After the panel\u2019s decision is approved by the entire board, it becomes binding for Facebook and is implemented promptly \u201cunless implementation<\/a> of a resolution could violate the law.\u201d Also deviating from the U.S. Supreme Court, the Board\u2019s rulings do not become official Facebook policy<\/a> in the same way Supreme Court follow the tradition of stare decisis<\/em>. The Board\u2019s rulings apply only to the individual case at issue, and while the Board may issue policy recommendations to Facebook with its decisions, these recommendations are only advisory<\/a>. This means that the impact of the Board\u2019s decisions over Facebook\u2019s policies and practices remain to be seen. \u00a0<\/span><\/p>\n

So far, the independent Oversight Board has been met with mixed reviews<\/a>. Its future success seems to depend<\/a> on the degree to which it demonstrates independence, organizational legitimacy, and transparency. It is yet to be seen what relationship might develop between this new body and existing laws and regulations. Some<\/a> posit that this quasi-legal system could cite judicial opinions from different countries, and that real courts might even eventually cite the Board\u2019s opinions in return. Regardless, the world will continue to monitor the Board in the upcoming months, as it resolves the issue of Donald Trump\u2019s removal<\/a> from the platform.\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

Last Friday, Facebook\u2019s Oversight Board (\u201cthe Board\u201d) issued its latest verdict, overturning the company\u2019s decision to remove a post that moderators alleged violated Facebook\u2019s Violence and Incitement Community Standard. This judgment brings the Board\u2019s total number of decisions to seven, with the Board overturning the Facebook\u2019s own decision in five out of the six substantive rulings it has issued. The Board\u2019s cases have covered several topics so far, including nudity and hate speech. Because Facebook\u2019s Oversight Board does not have any modern equivalents, it is worth exploring what went into this experiment\u2019s formation.<\/p>\n","protected":false},"author":66,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[783,1133,1160,1205],"class_list":["post-3700","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-facebook","tag-information-technology","tag-internet","tag-journal-of-regulatory-compliance"],"_links":{"self":[{"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/posts\/3700","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/users\/66"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=3700"}],"version-history":[{"count":0,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/posts\/3700\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3700"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3700"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3700"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}