The Facebook Oversight Board's Human Rights Future

67 Pages Posted: 23 Aug 2022 Last revised: 14 Nov 2022

See all articles by Laurence R. Helfer

Laurence R. Helfer

Duke University School of Law; University of Copenhagen - iCourts - Centre of Excellence for International Courts

Molly K. Land

University of Connecticut School of Law

Date Written: August 22, 2022

Abstract

Responses to the new Oversight Board created by Facebook (now Meta) have run the gamut from enthusiastic to overtly suspicious. Many observers are highly skeptical of the Board’s ability to hold Meta accountable or protect the rights of the platform’s users because of its narrow jurisdiction and nonexistent enforcement power. We argue that the skeptics incorrectly compare the Board to a domestic court. The central dilemmas and challenges that the Oversight Board faces—as a body of consent-based jurisdiction and constrained authority—are similar to those confronted by international human rights tribunals.

Viewing the Oversight Board as a de facto human rights tribunal sheds light on the strengths and weaknesses of the Board’s structure, decision-making, and potential future trajectory. Key design features that observers have criticized are, we argue, strengths the Board can use to expand its authority over time, develop human rights norms, and influence other efforts to regulate social media platforms. In fact, when compared to human rights tribunals, the Board’s achievements are impressive. In just two years, it has issued decisions on issues ranging from hate speech to misinformation, pushed Meta to give more consideration to the context of speech, and obtained important concessions from the company regarding transparency, government take-down requests, and the impact of content moderation on marginalized communities.

This Article is the first to examine the human rights origins of the Oversight Board, its strategies for pressuring Meta to improve its content moderation policies, and how it is extending human rights norms to private social media companies. We complement this analysis with a range of recommendations for the Board to be even more effective, as well as explore possible risks and challenges, including backlash, whitewashing, and negative spillover. Our sanguine vision of the Board’s future is thus by no means assured. Nonetheless, when viewed in light of the experience of international human rights tribunals, the Board has the potential to serve as an important check on Meta and to significantly advance the promotion and protection of human rights online.

Keywords: social media, human rights, technology, cyberlaw, international law, international tribunals, content moderation, facebook, freedom of expression

Suggested Citation

Helfer, Laurence R. and Land, Molly K., The Facebook Oversight Board's Human Rights Future (August 22, 2022). Duke Law School Public Law & Legal Theory Series No. 2022-47, Cardozo Law Review, Vol. 44, No. 6, 2023, Available at SSRN: https://ssrn.com/abstract=4197107 or http://dx.doi.org/10.2139/ssrn.4197107

Laurence R. Helfer

Duke University School of Law ( email )

210 Science Dr.
Box 90360
Durham, NC 27708
United States
+1-919-613-8573 (Phone)

HOME PAGE: http://law.duke.edu/fac/helfer/

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

University of Copenhagen Faculty of Law
Karen Blixens Plads 16
Copenhagen S, DK-2300
Denmark

HOME PAGE: http://jura.ku.dk/icourts/

Molly K. Land (Contact Author)

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

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