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Facebook's "Supreme Court" Has Implications for International Law

Last year, Facebook created its widely dubbed "Supreme Court" (officially the Oversight Board) in an effort to outsource some of the platform's most difficult content decisions. By all accounts, Facebook hoped the Board would have global legitimacy to make the toughest content decisions and help avoid reputational damage for being biased, arbitrary, tone-deaf, or worse. To get the Board started, Facebook created a separate nonprofit, donated $130 million to it to cover the Board's costs and hand-picked 20 members (14 of whom are lawyers) from 16 countries. Recently, Facebook presented its new Board, perhaps its most controversial content decision: whether to permanently banish a former US President (in this case President Trump for his comments regarding the Capitol violence on January 6th.) This set off a firestorm of commentary over both whether Trump should be banned from Facebook and whether the Board has — or lacks — legitimacy to permanently banish major political figures.

It doesn't take a lot of research to recognize that among Facebook's 2.8 billion users, millions will find lots of content highly objectionable; or that among the world's almost 200 national governments, many classify lots of content on Facebook "illegal." Getting out of this vortex in a commercially-viable way is evidently FB's main goal in creating the Oversight Board. But it won't be easy.

Much to its credit, the Board began its life with a handful of content decisions that read like high court rulings: it recites facts, describes the governing "law," explains its reasoning and renders a decision. Some involve controversial, highly-visible topics. Importantly, the Board has made quite clear that the "law" that it is interpreting is whatever content rules Facebook sets forth; although often as seen through the lens of "relevant human rights standards"; by which the Board seems to mean various United Nations' agreements.

The key to understanding the future of this particular approach to global Internet content management lies in two key concepts that are prominently featured in the Board's Charter: 1) "Free expression is paramount, but there are times when speech can be at odds with authenticity, safety, privacy, and dignity.", by which Facebook seems to mean that there is a presumption of free speech that can be curtailed based on 4 stated limitations; and 2) "For each decision, any prior board decisions will have precedential value and should be viewed as highly persuasive when the facts, applicable policies, or other factors are substantially similar.", by which Facebook seems to mean that if you can make the case that any content dispute is the same as one already decided, then -based on that precedent- you should prevail.

Given the size and global importance of Facebook as a principal medium for advertising, publicity, entertainment, official announcements, news, opinion and political discourse, it's difficult to see how large numbers of commercial, political, religious, legal, and other controversies will not work their way to Facebook's "supreme court." By its own report, the Board has already received almost 200,000 requests for judgements… and that number can only grow.

Naturally, professional legal, public relations and lobbying practices have already popped up, claiming expertise on "how to manage one's Oversight Board appeal." Particularly because precedent (or "caselaw") plays such an important role in determining whether content is — or people are-- allowed on/banned from Facebook, this professional practice can only grow.

As Facebook's content management practices become more refined and documented, the world's largest platform cannot avoid an ever-expanding role of deciding which ads, comments, politicians, manifestos, books, photos, videos, and other content to ban and which to allow. Having chosen to do so through a multinational, quasi-judicial format like the Oversight Board does not change that fact, but it does organize it. And this global, private law approach to Internet content management may well pre-empt the emergence of public international Internet content law.

The more so because the Oversight Board's documented, quasi-judicial approach will have a great impact on other large platforms. If nothing else, the Board's decisions will give other platforms cover to make identical decisions and leave it to Facebook's Board to justify them. Moreover, apparently, nothing would prevent other global Internet platforms from referring their own Internet content issue(s) to this Oversight Board. And, if the Board gains traction and legitimacy (from governments, industry, civil society, media, etc.), then it might well make sense for a wide range of Internet platforms to refer their own content issues to what might then be called "The Internet's Oversight Board."

In that sense, Facebook's quasi-independent, quasi-judicial, multinational approach to Internet content management will affect the development of both private and public international law regarding Internet content. Whether this Board evolves into Facebook's private "Supreme Court" or into the Internet's International Court of Justice will be one of the most important developments in Internet law and policy over the next several years. We should certainly expect many (hundreds?) of thoroughly-documented rulings from the 20 experts selected by Facebook on a wide range of Internet content issues. The impact of these "rulings" on the Internet at large remains to be seen.

By Roger Cochetti, Author and Commentator on Internet and Commercial Space Policy

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Comments

An alternative view By Anthony Rutkowski  –  May 10, 2021 5:09 pm PDT

My old colleague Roger's commentary here seems to restate most of the newsworthy facts.  Facebook established nothing more than a hyped company advisory committee not much different than innumerable others.  We have both sat on many of them over the years.

However, to assert that some company advisory committee "will affect the development of both private and public international law regarding Internet content" and potentially become "the Internet's International Court of Justice" and "one of the most important developments in Internet law and policy over the next several years" is in some space beyond hyperbole.

Thanks Tony. To be clear, I’m not By Roger Cochetti  –  May 12, 2021 8:17 am PDT

Thanks Tony. To be clear, I’m not predicting that the OB will preempt national or international regulation of Internet content...only that given its design and makeup, it certainly will have an impact on both and it could preempt either. I think it’s undisputed that purely national regulation of Internet content will not be globally effective and of the global efforts to address content on the Internet (Global Internet Forum, Christchurch initiative, etc.) none has adopted the judicial process and the star power of the OB.  Time, as usual, will tell.

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