Facebook and its Oversight Board: How Administrative Law Matters

A few months ago, Facebook published its Oversight Board Charter. Faced with mounting pressure about its treatment of complaints about its content moderation decisions, the company’s response was to create an Oversight Board:

The purpose of the board is to protect free expression by making principled, independent decisions about important pieces of content and by issuing policy advisory opinions on Facebook’s content policies…It will provide an accessible opportunity for people to request its review and be heard.

Each of the Board’s decisions will be “binding” and “Facebook will implement it promptly, unless implementation of a resolution could violate the law” (Article 4). There is an impressive undertaking to make each decision “publicly available” in a “database of case decisions on the board’s website, subject to data and privacy restrictions” (Article 3, section 6). In a further effort to ensure transparency, a “plain language explanation” will accompany each decision (Article 3, section 5). Moreover, the Board is not expected just to make ad hoc decisions on a case-by-case basis: “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” (Article 2, section 2).

This is essentially a private-law construct, which has not been created by virtue of any legal obligation on Facebook. Nonetheless, given the outsized role Facebook and similar companies play in modern life, it is a construct which is of general interest. Plainly, the Board is expected to play an important role in helping Facebook move forward: its decisions may be accompanied by “a policy advisory statement” which Facebook will have to take “into consideration” (which, having regard to the public nature of the statement, it will be under pressure to do) (Article 3, section 5) and Facebook may even “request policy guidance” from the Board (Article 3, section 7.3).

Given that exercises of public power (broadly understood) are at issue, administrative lawyers can legitimately ask questions about the design of the Board. In particular, there are several ways in which they can contribute: independence, scope of review and procedural fairness are centrally important to the design of this institution.

Independence requires financial security, security of tenure and administrative autonomy. Without these three features, a decision-maker is less likely to render free and unfettered decisions and, more importantly, is less likely to be perceived to be free and unfettered. Administrative lawyers emphasize perception because, for one thing, whether a decision-maker is actually free and unfettered is impossible to determine and, for another thing, independence is designed to secure public confidence in decision-making institutions, something to which perception is often more important than reality.

Administrative lawyers will also appreciate that it is one thing for Facebook to say that the members of its Oversight Board “will exercise neutral, independent judgment and render decisions impartially” (Article 1) but quite another thing to ensure it:

• In terms of security of tenure members will serve three-year terms and provision is made for “term renewals” (Article 1, s. 3). The trustees of the Board will decide on renewals but the question administrative lawyers have learned to ask is: by reference to what standards? Unless an arm’s length body determines what the standards are and whether members have met them, the Board’s appearance of independence risks being compromised. The trustees may remove a member for “violations of the code of conduct” but not “due to content decisions they have made” (Article 1, section 8): again, the standards are left unclear, as are the procedural protections a member enjoys when removal is countenanced.

• In terms of financial security, Article 1, section 5 provides that the trust “will arrange for compensation”, but this skeletal provision will have to be fleshed out. Key here is, first, a guarantee that members’ remuneration will not be reduced during their tenure (as a punishment for decision-making that does not favour the interests of others) and, second, a guarantee that the carrot of increased pay will not be dangled in front of them as a reward for making decisions in favour of the paymasters’ interests.

• In terms of administrative autonomy, the board is to have “a full-time staff…responsible for supporting the board’s administration and operations” (Article 3, section 1). Presumably, this “responsibility” is owed to the board which, if it is to be truly independent, must be able to control its staff. That the staff’s “primary duties” are set out in the Charter is unfortunate in this regard. As for selecting members of the Board, Facebook will have a hand in the initial selection process, by selecting a group of co-chairs who in turn will, with Facebook, “jointly select candidates for the remainder of the board seats”. Future members will be selected “based on a review of the candidates’ qualifications and a screen for disqualifications” (Article 1, section 8). If the Board is to be perceived as independent, it will have to act autonomously in the process of selecting new board members.

Scope of review is about the role appellate or reviewing bodies play in scrutinizing first-instance decisions. Here, the Board is certainly designed to play an appellate or reviewing function:

In instances where people disagree with the outcome of Facebook’s decision and have exhausted appeals, a request for review can be submitted to the board by either the original poster of the content or a person who previously submitted the content to Facebook for review. Separately, Facebook can submit requests for review, including additional questions related to the treatment of content beyond whether the content should be allowed or removed completely (Article 2, section 1).

But the difficulty lies in determining exactly what the scope of this role is. In trying to determine the scope of review in a given situation, public lawyers distinguish between different types of appeal. There is a spectrum running from de novo appeals at one end, where no heed is paid at all to the original decision and the appellate body comes to an entirely independent decision, to appeals on points of law or jurisdiction at the other end, where the appellate body can weigh in only on carefully circumscribed matters.

Along the spectrum one of the most important issues is how much deference the appellate body (here, the Board) should pay to the original decision-maker (here, Facebook). In turn, this depends on the type of matters under consideration and the expertise of the various decision-makers. In terms of subject-matter expertise, Board members are required to “have demonstrated experience” as collaborative team players and “have familiarity with matters relating to digital content and governance, including free expression, civic discourse, safety, privacy and technology” (Article 1, section 2). Familiarity is not an especially demanding criterion. But the Board’s key function is to “Interpret Facebook’s Community Standards and other relevant policies (collectively referred to as ‘content policies’) in light of Facebook’s articulated values” (Article 1, section 4, emphasis original). This does not call for any particular expertise. Put another way, the Board is going to be as much of an expert in applying Facebook’s written policies and articulated values to content decisions as anyone in the company. This points towards a very broad scope of review.

This conclusion is underpinned by the provision that Facebook will put before the Board the information “that is reasonably required for the Board to make a decision” and that the Board “may gather additional information” allowing it to gain as full a picture as possible of the content decision (Article 2, section 3). With such ample access to information, there is little call for the Board to defer to Facebook’s content decisions.

However, the Board’s Charter seems to pre-suppose that content decisions arrive neatly packaged. This seems dubious. For one thing, there may be technical issues bound up with content decisions. Here, inasmuch as Board members are not required to have any technical expertise, only mere “familiarity”, there might be occasion for them to defer to the judgement of Facebook’s technical experts on some questions. For another thing, Facebook will not implement Board decisions which “could violate the law”: there may be difficult issues of copyright law or national criminal law which are implicated in content decisions and on which Board members are not expected to have expertise. Again, deference to Facebook — here, their in-house lawyers and external counsel — might be appropriate.

In general, the Board should exercise more or less plenary review powers but on some issues, a measure of deference might be appropriate and restrict the scope of an appeal.

Procedural Fairness

Only skeletal procedures have been set out for involvement in matters heard by the Board: “The posting person or the reporting person will have the opportunity to submit relevant and informed written statements to the Board” (Article 2, section 3).

Inevitably, questions will arise as to whether individuals should be entitled to make oral representations, whether information held by Facebook should be disclosed to them to facilitate their appeals, whether individuals can retain legal counsel, whether Facebook employees will be subject to cross-examination and many other things besides. Administrative lawyers tend to answer such questions by striking a balance between the competing interests, an unenviable task on which the Board will inevitably be required to expend significant energy.

To be fair to Facebook it might not have been possible or prudent to anticipate at this stage every possible procedural issue which might arise but the skeletal framework offers little or no guidance to the Board on how it will deal with individuals who claim particular procedural rights. Administrative lawyers may well yet have a useful role to play.

Conclusion

The publication of the Charter is an interesting development. It is an exercise of public power, one of which administrative lawyers should take note. Years of grappling with difficult issues relating to independence, scope of appeals and procedural fairness means administrative lawyers are well placed to contribute to important public debates about the structures companies such as Facebook (and Google, Twitter and others) put in place to manage their platforms.

This content has been updated on December 16, 2019 at 15:27.