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Comments on the Oversight Board’s Decision Regarding Trump’s Facebook Account – Technology & Marketing Law Blog

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Today, the Oversight Board issued its decision regarding Facebook’s decision to suspend Trump’s account for 2 posts Trump made through the January 6 revolt. The determination covers numerous floor (it’s almost 12ok phrases), and that I’ll solely cowl a part of it. The determination has three details:

  • Trump violated Facebook’s guidelines.
  • Facebook was justified to droop Trump’s account, nevertheless it was not justified to droop it for an indefinite interval.
  • Facebook ought to publicly make clear multiple insurance policies.

The “holding” is that Facebook should come again to the Board inside 6 months and higher justify its treatment. (Why did the Board give Facebook a lot time?) The Board explains:

In applying a obscure, standardless penalty after which referring this case to the Board to resolve, Facebook seeks to keep away from its obligations. The Board declines Facebook’s request and insists that Facebook apply and justify an outlined penalty.

I count on Facebook will tackle the Board’s critique by changing the indefinite suspension right into a everlasting termination. The Board gave Facebook a roadmap of how to take action, noting that Facebook had flagged lots of Trump’s prior posts however didn’t situation related strikes. Facebook can regrade these posts, situation strikes, after which terminate Trump’s account for having too many strikes.

I count on most media protection will concentrate on the Board’s validation that Trump violated Facebook’s guidelines, however I personally discover the Board’s dialog concerning the remedial penalties extra noteworthy. The determination says some attention-grabbing issues about how Facebook (and different Internet providers) ought to tackle any violations of its guidelines. I did a deep dive on that situation in my Content Moderation Remedies paper.

Overview of the Decision

Trump Violated Facebook’s Rules. The Board, apparently unanimously, agreed with Facebook that Trump’s posts through the January 6 revolt violated Facebook’s group requirements:

Facebook’s Community Standard on Dangerous Individuals and Organizations says that customers shouldn’t publish content material “expressing support or praise for groups, leaders, or individuals involved in” violating occasions. Facebook designated the storming of the Capitol as a “violating event” and famous that it interprets violating occasions to incorporate designated “violent” occasions.

At the time the posts have been made, the violence on the Capitol was underway. Both posts praised or supported individuals who have been engaged in violence. The phrases “We love you. You’re very special” within the first publish and “great patriots” and “remember this day forever” within the second publish amounted to reward or help of the people intertwined within the violence and the occasions on the Capitol that day…

The Board finds that the 2 posts severely violated Facebook insurance policies and concludes that Facebook was justified in proscribing the account and page on January 6 and seven….Given the circumstances, proscribing Mr. Trump’s entry to Facebook and Instagram previous January 6 and seven struck an applicable steadiness in mild of the persevering with threat of violence and disruption.

The Board famous that Trump additionally could have violated Standard on Violence and Incitement, however Facebook didn’t depend on that commonplace and neither does the Board. However, a minority of the board would have utilized this commonplace and thinks Trump violated Facebook’s dignity worth as well.

Facebook’s “Indefinite Suspension” Remedy Isn’t OK. The Board signifies that Facebook’s short-term suspension of Trump’s account was justified in mild of the hurt Trump triggered on the revolt and the dangers of additional hurt after the revolt. However, the Board takes situation with Facebook’s use of an indefinite suspension:

Facebook’s imposition of an “indefinite” restriction is obscure and unsure. “Indefinite” restrictions usually are not described within the Community Standards and it’s unclear what requirements would set off this penalty or what requirements will likely be employed to take care of or take away it. Facebook offered no data of any prior imposition of indefinite suspensions in every other instances. The Board acknowledges the need of some discretion on Facebook’s half to droop accounts in important conditions like that of January, however customers can’t be left in a state of uncertainty for an indefinite time….The Board finds that it’s not permissible for Facebook to maintain a person off the platform for an undefined interval, with no standards for when or whether or not the account will likely be restored.

I feel the Board is correct to call out Facebook for utilizing an “indefinite” suspension, however I feel Facebook may take the place that the suspension was pending the Board’s evaluate. (It could also be simpler for Facebook to revive suspended accounts than terminated accounts). Facebook can tackle the Board’s issues by changing the indefinite suspension right into a everlasting termination if it might justify that final result. That’s most likely what Facebook ought to have finished within the first place.

The Board provides Facebook some steerage about how you can craft cures for person violations:

Facebook ought to use much less restrictive measures to handle doubtlessly dangerous speech and shield the rights of others earlier than resorting to content material elimination and account restriction….This penalty should be based mostly on the gravity of the violation and the prospect of future hurt. It should even be per Facebook’s guidelines for extreme violations, which should, in flip, be clear, crucial and proportionate.

In my Content Moderation Remedies paper, I agree with each of those points.

Recommendations to Facebook. The Board made multiple further coverage suggestions to Facebook, together with:

  • “Facebook should publicly explain the rules that it uses when it imposes account-level sanctions against influential users….If a head of state or high government official has repeatedly posted messages that pose a risk of harm under international human rights norms, Facebook should suspend the account for a period sufficient to protect against imminent harm. Suspension periods should be long enough to deter misconduct and may, in appropriate cases, include account or page deletion.”
  • “Undertake a comprehensive review of Facebook’s potential contribution to the narrative of electoral fraud and the exacerbated tensions that culminated in the violence in the United States on January 6. This should be an open reflection on the design and policy choices that Facebook has made that may allow its platform to be abused.”

Implications

Content moderation choices can’t please everybody. As I’ve repeatedly mentioned, content moderation is a zero-sum game. Someone will get the specified final result, another person doesn’t. That’s very true with respect to Trump’s social media accounts, which have been polarizing (and a nonstop supply of weblog fodder). Indeed, Trump’s Twitter account spurred diametrically opposed lawsuits towards Twitter. One lawsuit sued Twitter for not removing it, one lawsuit sued Twitter for removing it. Isn’t this the quintessential no-win scenario? Every determination will make some folks sad.

Is Facebook getting good ROI from the Oversight Board? In an try to beat the no-win nature of content material moderation choices, Facebook invested $100M+ into the Oversight Board with the hope that the Board, as a substitute of Facebook, would take the warmth from the parents sad with the zero-sum final result. Today’s determination–a high-profile account what place persons are assured to complain concerning the outcomes–is precisely the state of affairs that Facebook thought was value all that cash. If you don’t like Trump’s Facebook account being gone, Facebook needs you to yell on the Oversight Board and never it.

I’ve by no means understood Facebook’s selections as a result of I don’t assume it might obtain its desired outcome. The haters will nonetheless hate Facebook. Worse, if the Oversight Board isn’t saw as credible, then Facebook’s honoring of their choices hurts Facebook’s fame. Cognizant of the credibility issues, the Oversight Board has taken many steps to exhibit its independence from Facebook, together with lobbing many criticisms of Facebook (on this determination and elsewhere). But when the Oversight Board criticizes Facebook–a crucial precondition to the Oversight Board gaining its own credibility–then it provides extra gasoline to the Facebook haters. For instance, the Board unambiguously criticized Facebook for making up an off-the-book sui generis treatment and applying it to Trump’s account. For those that assume Facebook was out to get Trump, this determination stokes their anger.

Thus, I don’t see how Facebook solves any of its issues by way of the Oversight Board. What Facebook actually needs is a reputable and fully unbiased physique that solely has fawning reward for Facebook’s choices. Given that’s not potential, Facebook will both get a $100M+ shill, or it has empowered an unbiased physique to publicly spotlight its errors. So Facebook obtained a win right here in having the Board endorse its determination that Trump broke the foundations, however I feel the choice is finally a Internet loss for Facebook.

Because this situation isn’t resolved, it can flare again up. Facebook has to come back again to the Board to justify its cures throughout the subsequent 6 months. This ensures one other spherical of worldwide media protection over these points and can spur the haters to as soon as once more publicly declare why they hate Facebook. To me, that feels like a foul final result; however possibly Facebook and the Oversight Board see any press protection as a Internet win.

Don’t overlook cures. It’s not horny for the Oversight Board to concentrate on  cures, however cures are crucial to the legitimacy of any governance system–and all too usually, they’re undertheorized in comparison with the substantive guidelines. I hope Facebook will comply with the Oversight Board’s instruction to assume extra systemically about how cures match into its general content material moderation scheme. I favored the Board’s steerage, however I feel there’s extra to this story as I discuss in my expansive paper.

Case quotation: Case decision 2021-001-FB-FBR, Oversight Board, May 5, 2021

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