Because Trump has been entirely suspended from Facebook, the only way in which this case could have been adjudicated by the Board is if Facebook itself referred it to the Board, which it thankfully did. What is more, the example of the Trump case shows that if the motivation exists, the Board can still play a major role in deciding some critical and precedent-setting cases. It is thus too early to judge the Board’s long-term usefulness on the basis of its limited current subject matter competence. Douek, who actually pushed Facebook to send the Trump case to the Board, has observed that the board’s limited jurisdiction is the “biggest disappointment in the process of its establishment so far…users can only appeal cases in which their content is taken down by Facebook, and not cases where Facebook leaves disputed content up.” Even though the Board’s limited competence significantly impacts what it can presently do, eventually the Board’s jurisdiction may be expanded. Pursuant to Article 1(4) of its Charter, the Board is empowered to require Facebook “to allow or remove content”, and can also “provide policy guidance, specific to a case decision or upon Facebook’s request, on Facebook’s content policies.” This jurisdiction is very narrow. Let me start by providing some background to the kinds of cases the Board can decide.Īs of now, the Board can only make determinations on whether content posted on Facebook or Instagram should be allowed. If the Board demonstrates the kind of independence and impartiality expected from a modern adjudicative mechanism, accords all concerned parties due process, and ultimately delivers a well-reasoned decision that is adopted by Facebook, it would pass its first real test and gain considerable credibility. In its short life so far, the Trump case is the most high-profile case that the Board will decide since it commenced operations in October 2020. Crucially, Facebook has also requested policy guidance from the Board on suspensions when the user is a political leader. The Board accepted this case following a referral from Facebook to examine their decision to indefinitely suspend Trump’s access to post content on those platforms. On 21 January 2021, the Board accepted to decide a case on Donald Trump’s indefinite suspension from Facebook and Instagram. For the Board, the rubber has now hit the road. When fully staffed, the Board will have 40 members. It sits outside of Facebook’s structure to facilitate its independence, and is funded by an independent trust. The Oversight Board was created to help Facebook answer some of the most difficult questions around freedom of expression online: what to take down, what to leave up and why.”įundamentally, the Board acts as an appellate review mechanism for user content. Explaining the need for the Board, Facebook itself has said that as its “community grew to more than two billion people, it became increasingly clear to the Facebook company that it shouldn’t be making so many decisions about speech and online safety on its own. Now, we do have such a forum in place, and it is called the Facebook Oversight Board (“Board”). So, in 2018 Facebook announced plans to create an independent oversight body to review content decisions underpinned by a robust legal framework. It is hardly surprising that Facebook has faced immense pressure to become more accountable. As Klonick puts it, “through its ‘semipublic rules’ called ‘Community Standards’, Facebook has created a body of ‘laws’ and a system of governance that dictate what users may say on the platform”. There is no doubt that Facebook is one of the most powerful arbiters of online speech. Facebook exercises extraordinary power over individuals in the digital world, and the grave consequences of what is said on Facebook can easily spill into the physical world too.
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