Debating the Facebook Oversight Board and Self-Regulation Mechanisms

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event card collage with panelist photos main photo: Paul Butler / CC BY 2.0 /

On October 7, 2021, the Inter-American Dialogue held the event "Debating the Facebook Oversight Board and Self-Regulation Mechanisms." The event featured a presentation of a new report from the Peter D. Bell Rule of Law Program, Content Moderation and Self-Regulation Mechanisms: The Facebook Oversight Board and its Implications for Latin America, authored by Edison Lanza and Matías Jackson. The event also brought together experts in the areas of content moderation and freedom of speech for a conversation on the impact the Facebook Oversight Board (FOB) has had on freedom of expression in Latin America and the world. 

Michael Shifter, president of the Dialogue, gave opening remarks, followed by a presentation of the new report by Edison Lanza, author of the report and former special rapporteur for freedom of expression of the Inter-American Commission on Human Rights. The panel was composed of Catalina Botero, co-chair for the FOB, Nicolás Comini, Facebook’s public policy manager for Latin America, Gustavo Gómez, executive director of OBSERVACOM, and Mary Hansel, acting director of the International Justice Clinic at the University of California’s Irvine School of Law. The discussion was moderated by the Dialogue’s director for the Peter D. Bell Rule of Law Program, Santiago Canton. 

In his opening presentation, report author Edison Lanza highlighted the novel nature of Facebook’s self-regulatory mechanism, especially given social media’s increasing influence on public discourse and its users’ freedom of expression. The report presented a series of recommendations for the FOB which focused on (1) the explicit inclusion of international human rights norms within the board’s charter, (2) increased levels of transparency, and (3) the enlargement of the mechanism’s channels for appeal and range of jurisdictions. Lanza concluded his opening presentation with a call for a “horizontal dialogue” between social media platforms and their regulatory efforts, to create consensus on regulatory mechanisms that respect and acknowledge international human rights norms.

Panelists agreed that self-regulation measures should not displace other forms of regulation. Gómez asserted that while self-regulation measures such as the FOB can be beneficial complements, they cannot be the sole mechanism through which content is regulated, particularly, as Hansel later adds, because these measures were not the result of democratic processes.

When asked what non-state actors —such as academia and civil society— can do to guarantee the protection of human rights within platforms’ content moderation, Gómez argued that civil society must push legislative efforts in Latin America to focus not only on moderating user content but on platforms’ regulatory measures themselves, ensuring above all that these measures respect human rights norms. In regards to academia, Hansel asserted that academics should systematically analyze regulatory decisions within the context of human rights, also encouraging the FOB to explicitly include the protection of human rights norms within its charter. 

On the relationship between Facebook and the FOB, Comini asserted that Facebook considers the FOB’s recommendations to be pertinent and productive, stating that the company will integrate these recommendations in good will, in so far as they fit within the company’s larger mission and model. As Comini expressed, Facebook has updated its automated content moderation algorithm following the FOB’s decision on a case regarding the publication of nudity for the purpose of breast cancer awareness in Brazil. 

Nonetheless, Botero introduced a point of contention between the FOB and Facebook: Facebook has complete discretion over what information it provides to the FOB, creating what Botero considers to be an obstacle to the board’s advisory capacity. Botero considered this issue to be particularly pertinent given the recent release of the Wall Street Journal’s “Facebook Files”, which brought into light the company’s lack of transparency in regards to its "XCheck" or "cross-check" program. This program is used to perform content moderation on accounts from high-profile users. Botero also brought up this lack of transparency when asked why the accounts of some public officials such as Donald Trump's have had accounts suspended while others are not. As Botero explained, the FOB itself questioned this decision by Facebook and recommended that the platform should establish clearer, and more consistent measures of content regulation among its users. Hansel agreed with Botero that there should be increased transparency, and argued that the FOB should have subpoena power over Facebook. 

The event ended with a Q&A session. When asked what the US Congress' role should be on regulating social media content, Hansel reiterated her position that she felt "much more comfortable" with state regulation aimed at the corporate arena rather than regulation of speech, particularly because of prior, "problematic" attempts by states to regulate content on social media platforms. Regarding whether content should be taken down only when mandated by a judicial order, Gómez established that even when self-regulation mechanisms are not replacements for public regulation, organisms such as the FOB are necessary, adding that he believes they should be granted even more independence. 

Despite its shortcomings and limitations, all participants agreed that the FOB was an innovative and productive step towards the protection of freedom of expression in Latin America, as it is a model other social media platforms can learn from to place greater guarantees on the protection of freedom of expression within their regulatory structures.


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