Today the Facebook Oversight Board, an advisory body set up by the world’s largest social media platform to provide guidance on its content moderation decisions, opted to maintain Facebook’s suspension of former President Trump’s Facebook and Instagram accounts, but called on Facebook to reassess and clarify its rules regarding the indefinite ban.
The decision to maintain the suspension reflected the Oversight Board’s agreement with Facebook’s assessment of the danger posed by several of Trump’s posts during the Jan 6, 2021 deadly insurrection at the U.S. Capitol and sought to overturn the results of the democratic electoral process. But the Oversight Board also called the indefinite ban “arbitrary” and inconsistent with Facebook’s existing policies and gave the company six months to reexamine its penalty. It has insisted that Facebook figure out a transparent, consistent policy that treats all users fairly and equally.
“Facebook actually shirked its responsibilities,” Oversight Board co-chair Helle Thorning-Schmidt said in a call with reporters, explaining that the board asked Facebook to justify and clarify its penalty and noting the impact of this decision on democracies around the world. Activists in India, Brazil, Myanmar and elsewhere have highlighted concerns with the way social media companies have failed to address what they see as harmful disinformation and incitement to violence by authorities in their countries.
Meanwhile, governments around the world have watched with concern as Silicon Valley-based firms showed how easily they could flip the switch and turn off the megaphone that has allowed world leaders to speak directly to the public and bypass traditional gatekeepers like journalists or press offices.
Germany Chancellor Angela Merkel called Twitter’s ban “problematic” and Mexican president López Obrador vowed to mount an international campaign to combat “censorship” on platforms. Poland went so far as to propose a law that would make it illegal for platforms to remove posts that don’t violate local laws. And in Florida, lawmakers are considering legislation that would prohibit social media companies from deplatforming or shadowbanning politicians or face a fine.
Many lawmakers in the U.S. and around the world argue that private companies like Twitter, Amazon and Facebook, which govern vast swathes of our social, economic, and digital lives, shouldn’t have the right to deny access to their platforms, especially for politicians and world leaders. U.S. lawmakers point to the First Amendment’s prohibitions on government making any laws that abridge freedom of speech, assembly, religion or the press, and policy makers in several countries assert that these powerful platforms are akin to government because they govern so much of our daily lives. But while this is true, the focus should be on promulgating policies that support and promote pluralism and require greater transparency and accountability about content moderation rather than stripping private companies of their right to set their terms of service and community standards.
It is not permissible for Facebook to keep a user off the platform with no criteria for when or if the account will be restored and when its own policies don’t clearly set this out, said Oversight Board co-chair Michael McConnell in a call with journalists. “Our sole job is to hold this extremely powerful corporation responsible.”
The Oversight Board dismissed the claim that newsworthiness was an acceptable justification to protect such content when there is the likelihood of imminent harm. And to argue that Facebook should allow Trump’s posts because they are newsworthy belies the fact that as a world leader he has de facto access to the mainstream media and, as an elite, his words carry greater weight and influence than most others.
Trump’s 32 million followers on Facebook however, were dwarfed by his 88 million followers on Twitter, which held out from kicking him off the longest among the major platforms. Twitter has said its ban is permanent, even if Trump runs for office again. Meanwhile, YouTube’s CEO said that it would reinstate the former president’s account when the risk of violence has subsided.
But given the existential threat that Trump’s presidency, accusations of voter fraud, and continued influence over half of the American electorate poses, not least of all during an ongoing public health emergency, the bans on Trump should remain in place permanently. The risk to democracy is too great. And he has already shown that he can set up his own platform and continue to generate media coverage, so why give him further access to the mainstream?
The Oversight Board includes 20 Facebook-appointed experts in human rights, journalism and technology from around the world. In deciding whether the ban on Trump should remain in place, the Oversight Board considered both the company’s own terms of service as well as international human rights law, which includes the necessary and proportionate principles for restrictions on rights.
On the surface, the Oversight Board appears to privilege freedom of expression over other human rights. According to its website: “The purpose of the board is to promote free expression by making principled, independent decisions regarding content on Facebook and Instagram and by issuing recommendations on the relevant Facebook company content policy.”
But Facebook is not just a social media platform. It is a portal to the internet, a social network, a payment processor, a photo storage depot, a news site, and a dating service that owns two of the world’s other most popular communications platforms — Instagram and WhatsApp. Just as Trump’s posts should not be assessed in a vacuum or outside of the broader context in which they were composed, the platform’s decision and its implications for the broader public sphere should not be analyzed in a vacuum.
For example, last summer Facebook suspended a disinformation network tied to staff of Brazil’s president, Jair Bolsonaro, comprising more than 80 Facebook and Instagram accounts with more than 1.8 million followers as the country was becoming an epicenter for the coronavirus pandemic.
The Oversight Board acknowledged that heads of state and other high-level government officials can have a greater power to cause harm than other people, but also called for uniformity in application of the rules to all users and transparency about the rules that it uses when imposing account-level sanctions against influential users. Time-bound suspensions should be based on the amount of time needed to deter misconduct, although the Board said that account or page deletion could be appropriate in some cases.
I disagree with the Board’s assertion that Facebook should apply the same rules to everyone regardless of who they are. The words of a president have a greater potential to be dangerous and lead to incitement or harm than the average Joe, and arguably even more than other influencers who don’t have the power of the U.S. military, economy, and political apparatus behind them. If you’re not familiar with the importance of considering the Speaker, Audience, Context, and Medium of a given message, check out the dangerous speech framework proposed by Susan Benesch.
Trump, or for that matter any of the other world leaders who complained about the decisions of Facebook and Twitter to deplatform the sitting U.S. president, can call a press conference whenever they want. They can rally their press offices and the resources of the state to convey their messages and perspectives, and if they decide to use another service the press and the pundits typically follow them there. So there should be a lower threshold to protect the speech rights of world leaders to use the accounts of private companies, and they should certainly obey a higher standard of conduct and be beholden to the community standards accordingly.
Facebook presumably must now do the homework assigned to it by the Oversight Board. Let’s hope the company comes back in six months with a clear rationale and policy explaining that demagogues are not granted the privilege of using its platform to disseminate disinformation, inspire violence, and undermine the foundations of democracy.