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On May 18, 2021, the Inter-American Dialogue, the International Justice Clinic at the University of California, Irvine School of Law (UCI), and Columbia Global Freedom of Expression hosted the online event “The Decisions of Facebook’s Oversight Board: Implications for the Global South, particularly in Latin America”. The event featured a welcome by Michael Shifter, president of the Inter-American Dialogue, and opening remarks by Lee C. Bollinger, president and Seth Low professor of Columbia University. It was moderated by Edison Lanza, non-resident senior fellow of the Rule of Law Program at the Inter-American Dialogue and former special rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR), and four panelists: Catalina Botero, co-chair of the Facebook Oversight Board; Jamal Greene, co-chair of the Facebook Oversight Board; Mary Hansel, acting director of the International Justice Clinic at the UCI Irvine; and David Kaye, clinical professor of law at UCI Irvine and former UN special rapporteur on the Promotion and Protection for the Right to Freedom of Opinion and Expression.
The panel discussed the details of the Oversight Board’s unique model, the application of international human rights law to private entities, and the unanswered questions surrounding the Board’s influence on content moderation jurisprudence and legislation in Latin America. For the Q&A portion, Lanza surveyed members of civil society from the region prior to the event and presented some of their questions.
The panelists commented on the Board’s potential impact on national legislative agendas as well as the judicial decisions of national and regional courts on freedom of expression. Although the use of international human rights standards as an evaluative tool for content moderation is especially innovative, panelists agreed a private entity’s influence in this area poses many unanswered questions, including, “what is [the Board’s] impact on public law, as a private institution evaluating public norms using the tools and rhetoric of a court?” Although the Board resembles a judicial body, unlike a court, Greene indicated that the Board aims to be fully transparent in its decision-making process, outreach, and stakeholder engagement. Botero and Kaye both predicted that the Board’s decisions would eventually inspire judicial and legislative modifications to national content moderation and online freedom of expression frameworks.
Much of the discussion revolved around the potential regional dialogue and engagement with the Global South. While it is important to pay attention to certain regions of the world, the aim in the construction of its human rights standards is towards universality. However, Greene noted the Global South is in no way ignored by the Board, citing the Board’s inclusion of members from the region, including Latin America. Responding to questions on the Board’s measures to counter potential manipulation or misinterpretation of online speech, Greene and Botero assured the Board extends countless resources and measures at the regional and local levels to protect the rights of users and “understand fully the context in which decisions are being made, not to just react mechanically.” However, the panelists agreed the Board could foster greater inclusion of the perspective of the Global South in its decisions. Hansel suggested the Board broaden its global focus by incorporating regional case law into its standards and increase both stakeholder engagement and representation on the panel to better reflect Facebook’s global user base. The Board is also disproportionately made up of US members, despite US users only making up 10 percent of its total base.
Greene and Botero stressed that engagement, criticism, and feedback from civil society organizations are fundamental to the Board’s function and critical to the populations the organizations represent. Although the Board’s apparent receptivity to criticism, engagement, and dialogue is encouraging, panelists agreed the Board could still institute measures to ensure Facebook protects users’ rights to transparency and freedom of speech. Due to its relative novelty, the Board has yet to establish its authority in the realm of content moderation, its autonomy from Facebook, and its ability to hold the platform to transparency with its users. Hansel recommended the Board further embolden their commitment to human rights by explicitly adopting international human rights standards within its governing charter. Additionally, she emphasized the need for a channel providing non-user rights holders a voice in the Board’s decisions. Hansel did, however, credit Facebook for responding to these issues quickly and making minor improvements to its charter. Additionally, Botero noted that Facebook is continuously improving its responses to the Board’s recommendations.
The creation of the Board could foster new developments in the private sector in content moderation, oversight, and online protection of free speech. Noting the influence of Facebook on other media platforms, David Kaye dissuaded other platforms from replicating Facebook’s model and advised that they choose a model appropriate for them, especially given the difficulty of replicating such a resource intensive initiative. Furthermore, the panelists agreed with the concerns that the Board could “monopolize” the conversation around content moderation and online freedom of expression. Botero emphasized that the Board should be one of many measures to ensure user’s rights are protected and reiterated the importance of collaboration across platforms in content moderation and the protection of freedom of expression.