Stung by repeated criticisms of content moderation decisions in which it either acted or refused to act to remove controversial content such as obviously-doctored political videos, Facebook has developed a new Independent Oversight Board to hear petitions to appeal from those decisions brought by platform users and Facebook itself.  The Oversight Board has been set up and funded by an independent trust, which is designed to allay concerns that Facebook might interfere in its decisions.

As many retailers rely on content creation for their marketing efforts, Facebook’s news is worth noting. For content creators, an adverse Facebook decision to take down content can be disastrous to their livelihood which depends on monetizing that content.  Such a potential adverse business impact is part of the reason why due process on Facebook is long overdue.

Last month, Facebook announced its initial Board composition and published the long awaited bylaws, which detail how the Oversight Board will be operated.

Facebook Oversight Board Procedures

• The Oversight Board will be made up of an independent, international panel, reportedly selected to reflect a diverse set of viewpoints, expertise, and languages. There will, at peak, be 40 members who will serve 3-year terms.  The Board currently includes three prominent law professors from the United States, including co-chair Michael McConnell, who is currently a Stanford Law Professor and formerly a Judge on the Tenth Circuit.
• The right to appeal will not be automatic. The Board will constitute a rotating Case Selection Committee that will develop criteria for selecting among the most meritorious among what are expected to be thousands of petitions for review.  It “will prioritize cases that potentially impact many users, are of critical importance to public discourse, or raise questions about Facebook’s policies.”  Some content decisions, such as assessments of copyright concerns or involving clear violations of law, will not be appealable to the Board.
• Upon acceptance of the case, the Board will forward it to a 5-member board panel. The case submission will include:
  • A statement by the person who submitted the case (and/or who posted the original content);
  • A case history (from Facebook);
  • A policy rationale (also from Facebook);
  • Clarifying information (also from Facebook) if requested by the board; and
  • All additional outside information, if requested by any member of the panel.
• In reviewing individual cases, the panel will seek to determine whether the content complies with Facebook’s “content policies and values.” It will draft a decision for full Board review.
• Once approved for release, the administration will approve the publication of the final decision on the board’s website and promptly notify the persons involved and Facebook.
• The board will publish its decision as soon as it is complete and will translate it into the board’s official languages

Implications

We have yet to see any published decisions from the Board, so the real operational standards and quality of the Board decision-making have yet to be assessed.  Some of the most difficult issues that could arise may stem from allegations of systematic bias that are often leveled against social media platforms, and in the leadup to the United States Presidential Elections, the Boards’ decisions regarding political content are certain to receive significant attention.

Facebook needs this experiment in independent oversight to succeed.  The drumbeats for reform, or even repeal, of Section 230 of the Communications Decency Act is growing louder every day – attracting proponents from both sides of the political spectrum.  An effective and independent Oversight Process might calm the political waters, much as the creation of the industry self-regulatory National Advertising Review Program did in the 1980s.