The Gambia v Facebook: Obtaining Evidence for Use at the International Court of Justice

Abstract

On September 22, 2021, a US magistrate judge ordered Facebook to disclose "de-platformed" materials relating to the perpetration of ethnic hatred against the Rohingya Muslim-minority in Myanmar. This post examines that decision, including the potentially sweeping implications of the ruling for on-line privacy, and considers how the evidence sought by The Gambia from Facebook relates to its pending action under the 1948 Genocide Convention against Myanmar at the International Court of Justice. The difficulties inherent to applying the Stored Communications Act, a US federal statute, to social media companies engaged in content moderation suggest that legislation, rather than piecemeal litigation, is urgently required.

Keywords: Free expression, privacy, social media, content moderation, accountability mechanisms, discovery, International Court of Justice, Rohingya, Myanmar, Facebook

JEL Classification: K1, K33, K44