Giulia Alves Maia
The Facebook / Meta Oversight Board (OB) is one of the most novel developments in law and governance in recent years. The Oversight Board has ignited a major debate about its character, form, operation, and effects. It has been modelled as a “Facebook Supreme Court”, and its structure and style of its reasoning, as well as its use of precedent, give the appearance that the OB operates in a similar way to a court. On 26 April 2023, City Law School hosted a hybrid event entitled The Facebook/Meta Oversight Board: International and Regional Law Applications to discussion these and other issues.
The event brought together a number of experts in the field to present and discuss their research. Among those present were Professor Elaine Fahey (City Law School); Dr Jed Odermatt (City Law School); Prof. Laurence R. Helfer (Duke Law School, UN Human Rights Committee); Prof. Molly Land ( University of Connecticut School of Law); Dr. Richard Danbury (School of Communication & Creativity, City); and Stefania di Stefano (Geneva Graduate Institute).
The discussion kicked off with a presentation by Professor Helfer, an expert in international law and institutions, adjudication and dispute settlement, human rights (including LGBT rights), and international intellectual property law and policy. He began by emphasizing that the Oversight Board uses Meta’s internal company norms and international human rights law to evaluate Meta’s content moderation decisions and policies. Helfer also highlighted that the board has the authority to issue binding rulings in cases where individuals appeal Meta’s decisions to remove or maintain content and provides non-binding guidance on Meta’s content moderation policies. Professor Helfer pointed out that the board is increasingly creating international rights norms, particularly with regards to freedom of expression, and other areas too.
Professor Helfer continued by stating that the main aim of his writings was to identify the similarities and differences between the Oversight Board and international courts, as well as the potential impacts of the Board. He highlighted some similarities, such as the use of jurisdiction concepts, applicable law, and the adoption of many strategies from international human rights bodies, as seen in their annual and quarterly reports. Professor Helfer also emphasized the influence of the Oversight Board on content moderation decisions made by other social media platforms and the criticism the board has given to Meta’s content moderation activities and algorithms.
Professor Land, an expert in international human rights, international Law, international intellectual property law, and law and technology, discussed the norms developed by Meta and the Oversight Board on corporate responsibility regarding human rights and the potential risks and challenges of a private entity handling these activities. Professor Land pointed out that Meta has acknowledged that social media platforms may have evaded their obligations in some regions, despite being the primary sources of news over those places. Professor Land demonstrated a global trend towards regulating companies to follow the norms regarding due diligence assessment in the digital sphere developed by the Oversight Board. However, she also cautioned against negative spill overs, as the Board may create statements that are specific to Meta but applied more broadly, potentially leading to inaccuracies. She also expressed concern about the Board’s rapid growth and the fear of creating a social media giant, as there is a push for defining what it truly represents.
The debate continued with a presentation of Dr Danbury, an academic lawyer, journalist, and former practicing barrister, who provided contextual information about the Oversight Board. He started by answering the question of why the Oversight Board was created. He noted that the Board’s creation was due to issues concerning speech regulation and highlighted the significance of the Ruggie Principles in relation to freedom of expression. Dr Danbury also mentioned Facebook’s membership in the Global Network Initiative (GNI) and how it led David Kaye, former Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, to suggest that the company go beyond the GNI and enhance its application of the Ruggie Principles. Moreover, Danbury commented on Facebook’s effective use of the Ruggie Principles. Finally, he discussed the three-step test, which is one of the ways to interpret Article 19 of the ICCPR and emphasized the board’s application of the three requirements of lawfulness, legitimacy, and proportionality when dealing with speech interference.
Stefania di Stefano delved into the interaction between international human rights law and content moderation. Di Stefano began by noting the recent rise in the importance of content moderation and how it is now the subject of the UN Special Rapporteur on Freedom of Expression for 2021. Di Stefano also pointed out that Meta took a considerable amount of time to develop the company’s human rights policy. Di Stefano then explained what the Oversight Board is, observing that its power under its founding charter is unclear and does not explicitly state the reasoning behind Facebook’s decision to initiate content moderation. She mentioned the human rights standards that the board references in its decisions and speaks about the game of interpretation, which involves applying IHRL norms in content moderation and to international legal agents. Di Stefano also discussed the strategies used by the board to overcome its disadvantages, such as identifying its audience, showing commitment to the cause, and gaining authority and legitimacy as a human rights entity. She concluded by suggesting that the Oversight Board and UN Human Rights bodies can collaborate in creating content on content moderation.
Jed Odermatt began his intervention by discussing the role of the Oversight Board, which involves reviewing content moderation decisions made by Facebook/Instagram and issuing advisory opinions on content moderation policies. Odermatt argued that the Oversight Board should be examined through the lens of an international court. While the Board is a form of private governance, it also plays a quasi- public law function: the Board published reasoned decisions; its decisions are binding on Meta and have precedential value; the Board cites various legal sources; and it aims to influence other social media platforms. He also observes that although the Board members are not judges, they show expertise and qualifications similar to that of judges, and the Oversight Board adopts judicial-style reasoning.
Odermatt suggests that the FB Oversight Board is likely to draw inspiration from other courts and exert its influence over other organisations, while utilizing legal precedents as a means of legitimation. He acknowledges that the Oversight Board has employed its own principles and guidelines in rendering decisions, but stresses that it has mainly relied on UN documents as its primary sources. He observes that the board frequently invokes human rights law, but also acknowledges occasional references to national and regional laws, with only a few allusions to EU law.
Professor Fahey drew attention to Facebook’s popularity in Europe and the ongoing regulatory developments in the region regarding the DSA and DMA regulations. Fahey notes that Meta has issued threats to withdraw Facebook from Europe, which poses a significant challenge to the region’s governance and regulation of the issue. She asserts that, in theory, the Oversight Board should be a highly diverse and internationalised body, with efforts being made by members to bring multinationalism to the board. However, Fahey raises concerns about the limited representation of Europeans in the board.
Professor Fahey then described her empirical work that categorizes Oversight Board decisions by sources, regions, and subject matter, revealing a lack of European diversity in the sources used by the Board. She notes that European sources are rarely used and that the Board struggles to identify Europe in its decisions. She highlights that, in theory, EU law instruments, such as the Charter of Fundamental Rights, CJEU case law, EU secondary law, and EU policy, should be employed, but in practice, the Board tends to rely on soft law.
During the discussion session, various topics were addressed, including the methodology used to analyse data, how the Oversight Board should consider regional variations in using sources for its decisions and applying content moderation, and the potential conflict between the board and national and regional authorities. Participants also questioned whether the board would follow the US doctrine of freedom of expression, and whether Facebook’s self-regulation aims to avoid external state regulation. The distinction between Meta and the Oversight Board was also noted, as was the board’s reluctance to act in areas of human rights where there is disagreement. The training and qualifications of board members were also questioned. Finally, the debate turned to the use of the FB Oversight Board as a means of profit maximization.
The work of the Facebook/Meta Oversight Board will continue to inspire academic debate and discussion, especially as it applies and interprets international law, human rights law, and regional law in its decisions.