The Transformative Potential of Meta’s Oversight Board: Strategic Litigation within the Digital Constitution?

Abstract

Meta’s Oversight Board (OB) is at the center of divisive debates. Some commentators look at this experiment as the “Supreme Court” of a global order that is going through a process of constitutionalization. Others express concern about the OB, seen as a way to avoid public accountability and, more generally, as the legitimization of global private censorship. Either way, the debates normally focus on the important but still relatively narrow issue of content moderation and freedom of expression. In contrast, it is the manipulation of individuals and the related social effects—among them, the mental health distress of young people—deriving from the business model of digital platforms—so-called informational capitalism—that needs to be counteracted. Against this background, this article, resorting to societal constitutionalism as an analytical framework, aims to contribute to the debates on digital constitutionalism. It has two goals. First, to use the instruments available within Meta’s normative system to thematize the broader, systemic effects of social media and digitality in constitutional terms. Second, to question informational capitalism ‘from within’, using the right to the mental health of children as a case study. In this sense, it is an exercise of (strategic) legal imagination that focuses on the internal side of an involved actor. After the introduction, section 2 analyzes the features of Meta’s normative system, distinguishing between juridification (2.1) and constitutionalization (2.2). Against this background, section 3 outlines a litigation strategy aimed at bringing such issues before the OB. It separately examines the strategies preceding the proceeding (3.1.), the authority and scope of OB’s jurisdiction (3.2), the relevant standards of review (3.3), and the potential content of the decision and the policy advisory statements (3.4). Section 4 concludes.

Keywords: Meta, content moderation, freedom of speech, Oversight Board, societal constitutionalism, strategic litigation, informational capitalism, constitutional theory