This is a guest post by Elizabeth Boomer, an international law consultant in the Global Legal Research Directorate. Elizabeth has previously written for In Custodia Legis on Technology & the Law of Corporate Responsibility – The Impact of Blockchain, 30th Anniversary of the United Nations Convention on the Rights of the Child, and United Nations Day – A Time to Reflect on the Potential Role of the International Court of Justice.
Have you heard of Facebook’s new Oversight Board? If you use Facebook or Instagram, you may want to pay attention…
Back in late 2018, Mark Zuckerberg announced Facebook’s plan to create an independent body to “uphold the principle of giving people voice while also recognizing the reality of keeping people safe.” In his public announcement (posted on Facebook, of course), Zuckerberg emphasized that governments and internet companies must work together to establish an “ideal long term regulatory framework” for content governance and enforcement, or “where the lines should be drawn between free expression and safety”. But, you might ask, isn’t that the role of domestic and international laws governing freedom of expression, in the first place?
Over the next 18 months, the body proposed by Zuckerberg was created, through public consultations, in-depth workshops, and roundtables. This process included writing the Oversight Board Charter, identifying applicable standards (the Community Standards, among other standards, as further explored below), and naming the initial board members, which include international law professors. The Oversight Board then began accepting cases in October 2020. So far, admissible types of cases include i) an appeal when a user’s content is removed from Facebook or Instagram and when the user has exhausted the company’s appeal process, ii) a referral of a case from Facebook itself asking whether content should remain up or come down. The Oversight Board is then tasked with determining whether the content should be allowed or removed in compliance with Facebook’s community standards.
Out of more than 220,000 cases submitted to the Oversight Board since October 2020, the inaugural docket of six cases released on December 3, 2020, was described by one expert on online speech regulation as taking up the “greatest hits of Facebook content moderation controversies,” including issues related to hate speech, nudity, and COVID-19 misinformation. The Board’s criteria (the Overarching Criteria) for selecting cases is designed to focus on cases that i) would affect a large number of users, ii) are of critical importance to public discourse, and iii) raise important questions about Facebook’s policies.
The Inaugural Decisions and the Applicable “Legal” Standards
On January 28, 2021, the Oversight Board announced its first five decisions. The sixth case was dropped from the docket because the user voluntarily deleted the content at issue. A replacement case was selected and a separate decision was announced in February. While there are many fascinating aspects of these first decisions (see here and here), the topic of this post is the treatment of international human rights law in a transnational sphere. When assessing how international human rights law, as between states, was employed in these decisions, it is important to keep in mind that the Oversight Board is also assessing the transnational law governing Facebook users, or what can otherwise be called stateless law.
In each case, the Oversight Board’s decisions examined the removal of content according to (i) whether the post complied with Facebook’s own standards (Facebook’s Community Standards and Facebook’s Values – Voice, Authenticity, Safety, Privacy and Dignity), and then (ii) whether the removal of content violated international human rights law. Also, in each case, the Oversight Board invoked the United Nations Guiding Principles on Business and Human Rights (UNGPs), endorsed by the UN Human Rights Council in 2011, which establish a voluntary framework for the human rights responsibilities of private businesses. Beyond the reference to the UNGPs’ general obligations for businesses to respect human rights, so far the cases have further cited the following international treaties, commitments and guidelines:
- The right to freedom of expression: The International Covenant on Civil and Political Rights (ICCPR), Article 19 and Article 20;
- General Comment No. 34, Human Rights Committee (2011) (General Comment 34);
- The Rabat Plan of Action, OHCHR, (2012);
- UN Special Rapporteur on freedom of opinion and expression, reports: A/69/335 (2014); A/HRC/38/35 (2018); A/73/348 (2018), A/74/486 (2019) and A/HRC/44/49 (2020);
- The right to non-discrimination: ICCPR Articles 2 and 26;
- International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Articles 1, 4 and 5, as interpreted by the Committee on the Elimination of Racial Discrimination, General Recommendation No. 35 (2013) (GR35);
- The right to life and security: ICCPR Articles 6, as interpreted by General Comment No. 36, Human Rights Committee (2018) (GC36);
- The right to security of person: ICCPR Article 9, para. 1, as interpreted by General Comment No. 35, para. 9, Human Rights Committee (2014);
- The UN Working Group on Human Rights and Transnational Corporations, in conflict situations (A/75/212, 2020);
- The right to health: International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 12; General Comment No. 14, the Committee on Economic, Social and Cultural Rights, E/C.12/2000/4 (2000);
- The right to effective remedy: ICCPR, Article 2; General Comment No. 31, the Human Rights Committee, CCPR/C/21/Rev.1/Add. 13 (2004);
- The right to privacy: ICCPR, Article 17;
- The rights of the child: Convention on the Rights of the Child (CRC), Article 6; General Comment No. 13, the Committee on the Rights of the Child, CRC/C/GC/13 (2011).
Thus, after first assessing a post’s compliance with Facebook standards, the Oversight Board generally followed an inquiry into whether the restriction in itself was legal under international human rights law. This included a several step approach, first evaluating the legality of the restriction on expression, i.e. whether the restriction on expression was clear and accessible. Second, the Oversight Board considered the legitimacy of the restriction on expression, i.e. did the restriction on freedom of expression pursue a “legitimate aim.” The Oversight Board then continued to determine whether the restriction on expression was necessary and proportionate. The rules on necessity and proportionality require Facebook to show that its restrictions on freedom of expression are necessary to address the threat and any restriction may not be overly broad. Finally, the Board considered equality and non-discrimination, as any restrictions on expression must respect the principle of equality and non-discrimination. As can be seen from the international legal instruments invoked above, some of the Oversight Board’s inquiries also looked into the right to an effective remedy (the UN Special Rapporteur on freedom of opinion and expression identified the responsibility to provide a remedy as one of the most relevant aspects of the UNGPs as they relate to business enterprises that engage in content moderation (A/HRC/38/35, para. 11), as well as the right to privacy (ICCPR art. 17) and the rights of the child (CRC art. 6).
As to how the cited legal instruments, guidelines and commentaries apply to business enterprises, the Oversight Board is not so specific. Some of the international human rights law was written and ratified for use by states. The Oversight Board also has not addressed what would be the outcome if the application of the Facebook Standards themselves actually contradict international human rights law. Professor Kaye of the University of California, Irvine has argued that this lack of clarification regarding the relationship between the Community Standards and human rights standards could be significantly improved if Facebook expressly integrated human rights principles into its Community Standards, instead of using human rights as a discretionary, secondary tool to assess Facebook’s actions restricting speech.
The Effect of Oversight Board Decisions
As the Oversight Board is not a judicial body applying the law, it would also be reasonable to wonder what the effect of an Oversight Board decision is? Per the Oversight Board Charter, Facebook is required to follow the decision for the post at issue in the case. Furthermore, per Oversight Board bylaw 2.3.1, Facebook will take action on “identical content with parallel context” where it has the “technical and operational capacity to do so.” In addition to these effects, the Oversight Board provides policy recommendations as part of its decisions, which Facebook should “consider”. Recently, Facebook responded to the Oversight Board’s first set of decisions, and by its own account made 11 commitments in response to the recommendations, said it would assess the impact of five recommendations, and refused one recommendation related to COVID-19 misinformation.
What’s Next at the Oversight Board
Following the first round of case decisions on January 28, 2021, the Oversight Board has announced three more cases for consideration, including Facebook’s request to review the indefinite suspension of former U.S. President Trump from Facebook and Instagram. The Oversight Board closed public comments on Trump’s suspension case on February 12, 2021, after receiving at least 9,000 public comments about the ban. The treatment of international human rights law in this case may be of interest. For example, the Knight First Amendment Institute at Columbia University has argued in its submission to the Oversight Board that the real issue should be to clarify under what circumstances Facebook should remove political leaders’ speech or suspend political leaders from its platform, keeping in mind the gatekeeper function that Facebook plays in the public sphere and the U.S. first amendment principle that “debate on public issues should be uninhibited, robust, and wide-open.” (Citing New York Times v. Sullivan, 376 U.S. 254, 270 (1964).) The international NGO Article 19, which advocates for the freedom to speak and the freedom to know, submitted a public comment emphasizing “putting human rights ahead of commercial decisions when they come into conflict.”