Facebook’s hand-picked ‘oversight’ panel upholds Trump ban — for now

Facebook’s content decision review body, a quasi-external panel that’s been likened to a ‘Supreme Court of Facebook’ but isn’t staffed by sitting judges, can’t be truly independent of the tech giant which funds it, has no legal legitimacy or democratic accountability, and goes by the much duller official title ‘Oversight Board’ (aka the FOB) — has just made the biggest call of its short life…

Facebook’s hand-picked ‘oversight’ panel has voted against reinstating former U.S. president Donald Trump’s Facebook account.

However it has sought to row the company back from an ‘indefinite’ ban — finding fault with its decision to impose an indefinite restriction, rather than issue a more standard penalty (such as a penalty strike or permanent account closure).

In a press release announcing its decision the board writes:

“Given the seriousness of the violations and the ongoing risk of violence, Facebook was justified in suspending Mr. Trump’s accounts on January 6 and extending that suspension on January 7.

However, it was not appropriate for Facebook to impose an ‘indefinite’ suspension.

It is not permissible for Facebook to keep a user off the platform for an undefined period, with no criteria for when or whether the account will be restored.”

The board wants Facebook to revision its decision on Trump’s account within six months — and “decide the appropriate penalty”. So it appears to have succeeded in… kicking the can down the road.

During a press conference, the FOB’s co-chairs Michael McConnell and Helle Thorning-Schmidt and its director of admin, Thomas Hughes, discussed the ruling and the process undertaken to reach it — which was a majority decision, with some minority opinions included in the full decision published today.

The FOB confirmed that while it agrees Facebook had sufficient justification to suspend Trump’s account on January 7 (and to remove posts that violated its policies against praise for violent acts), it believes the tech giant imposed an improper penalty which was not in line with its own rules.  

Its requirement is that Facebook revisit the case, with the board essentially encouraging it to take a full six months to deliberate, and then either restore Trump’s account, make the ban permanent or define a suspension for a set period of time, in line with its rules.

“The opinion stresses that Facebook’s own policies do not authorize an indefinite suspension,” said McConnell during a call with reporters, emphasizing that the company’s own policies don’t allow for such a ‘fence-sitting’ restriction and noting too that internationally recognized principles of freedom of expression “maintain that restrictions on speech must be clearly stated understandable”.

“Indefinite penalties of this sort do not pass the international or American smell test for clarity, consistency and transparency,” he added.

“The board’s role is to ensure that Facebook’s rules and processes are consistent with its content policies, its values and respect human rights. In applying an indeterminate and standard-less penalty and then referring the case to the board to resolve Facebook actually shirked its responsibilities,” said Thorning-Schmidt. “The board insists that Facebook apply and justify a clear penalty.”

She also went through a long list of policy recommendations the FOB is making alongside the Trump decision — such as that when it imposes a ban on an influential user it should assess the risk of inciting harm before the suspension period ends and that influential users who still pose a risk of harm should not be reinstated — suggesting that if Facebook takes its recommendations on board it will have a much easier time making a decision on Trump at the second pass.

The seven policy recommendations also include the suggestion that Facebook publish a new policy to govern its response to crisis situations and set limits on its discretion — including a requirement to review its own decision within a fixed time.

The board also wants Facebook to conduct a review of the role its platform played in contributing to a narrative of election fraud and publish the report, she said.

Facebook is not bound by FOB policy recommendations. But it is bound by individual case decisions and has seven days to implement them (although, in this case, it’s a bit of a meaningless deadline — but presumably Facebook will need to begin its review of Trump’s suspension within a week).

Thorning-Schmidt said the policy recommendations build on what she called “a pattern of recommendations” it has issued in other cases this year that she said “called out shortcomings in Facebook’s content policies and called for far greater transparency from the company”.

“The decision made by the Oversight Board today illustrates, in my view, exactly why independent oversight matters. Anyone who is concerned about Facebook’s excessive concentration of power should welcome the Oversight Board clearly telling Facebook that they cannot invent new, unwritten rules when it suits them,” she went on.

“The board’s purpose is to shift Facebook from an arbitrary approach to content moderation to one where Facebook’s rules are clear, transparent and treat all users fairly. This is important not just for users in the United States but users all over the world, including the countless political leaders, campaigners and dissidents around the world who depend on Facebook to engage with communities.”

Asked during a Q&A session with journalists, the FOB was asked whether it wasn’t itself shirking its responsibility by bouncing a decision on Trump right back to Facebook. But Thorning-Schmidt denied it was passing the buck — arguing it’s given the company clarity on the steps it needs to take to move past the current impasse.

“The board has made a clear decision. Facebook’s initial suspension of president Trump was correct. That’s very clear. But also we’re saying that an indefinite ban was not acceptable — and the reason why is because Facebook actually failed to follow its own rules on removing harmful content by choosing an indefinite suspension,” she said.

“I like to point out that this is perhaps more a decision that concerns Facebook and its users, rather than Trump. Because what we’re basically saying is that it can’t be left up to Facebook to just choose their own penalty for users — they have to follow their own rules. If users have to follow the community standards and the values of Facebook and Instagram, Facebook has to do the same. So we’re basically saying that all users are equal and that Facebook also has an obligation towards the community standards — and that is to follow their own rules.”

McConnell confirmed that Facebook’s second decision on Trump could be appealed or referred back to the board again — extending the uncertainty around the future of the former U.S. president’s Facebook deplatforming for (potentially) even longer than six months.

“It’s certainly a substantial possibility [the board will be asked to decide Trump’s case again in future],” he said.

“But if Facebook follows our recommendations and does what we’re hoping… this time the decision will be deliberate, it will be in accordance with Facebook’s rules, it will be clearly explained, it will be on the basis of actual findings about severity of the conduct and the possibility of likelihood of future harm — and, at that point, our expectation and hope is that it will be a much easier matter because Facebook will have done what it should have done the first time.”

“I want to emphasize that this is not the only case in which Facebook has engaged in ad-hoc-ery,” he added. “As we see so many — we’ve gotten over 20,000 appeals from users — who are frustrated at not knowing what the rules were, not knowing why Facebook took the decision it took. A kind of bewildering mess. And I believe that the very existence of an independent oversight board is designed to change the culture of content moderation on the platform.

“When Facebook knows that there is someone looking over their shoulder and insisting upon clarity, transparency, consistency, fairness, then it is — I think — much more likely that we’ll be seeing some internal reform.”

Facebook has responded briefly to the board’s ruling, writing that it welcomes the panel’s upholding of its decision to ban Trump.

It added that it will now consider the requirement to re-examine the penalty it imposed and “determine an action that is clear and proportionate”.

“In the meantime, Mr. Trump’s accounts remain suspended,” Facebook added.

This story is developing… refresh for updates…

It’s certainly been a very quiet five months on mainstream social media since Trump had his social media ALL CAPS megaphone unceremoniously shut down in the wake of his supporters’ violent storming of the capital.

For more on the background to Trump’s deplatforming do make time for this excellent explainer by TechCrunch’s Taylor Hatmaker. But the short version is that Trump finally appeared to have torched the last of his social media rule-breaking chances after he succeeded in fomenting an actual insurrection on U.S. soil on January 6. Doing so with the help of the massive, mainstream social media platforms whose community standards don’t, as a rule, give a thumbs up to violent insurrection…

However the platforms had given Trump a pass for years, letting him bully, abuse and spread hate, and amplify and launder disinformation about anything he didn’t agree with — including his presidential rival, Joe Biden. And later the election itself (which, for the record, Trump lost and Biden won but you’d never know it if your ‘touchstone of truth’ was the self-pity-prism of Trump’s reality-denying tweets.)

January 6’s chaos and violence shouldn’t have been a shock to anyone, given that Trump playbook has always been to say the quiet part out loud — frequently in ALL CAPS on the most mainstream social media platforms. But these tech giants made like they were shocked anyway, and suddenly sprung into action — finally suspending Trump en masse.

Twitter, a long time Trump apologist — whose platform happened to garner massive global attention by merit of being Trump’s antisocial megaphone — announced he was banned for good. (It has recently been surveying users for views on its policies toward world leaders and got nearly 49,000 people responding to its call for feedback — but has yet to announce any next steps or policy changes.)

Facebook also banned Trump, initially for “at least two weeks” — and then “indefinitely”. But it quickly threw a curve ball, saying it would refer this ‘indefinite’ ban to the FOB — outsourcing the possibility of a Trump Second Act on its platform, if its hand-picked ‘external experts’ decided to make it so, neatly deflecting flak from its decision to ban Trump in the process.

The homebrew review body had only started accepting cases in October 2020 — delivering its first batch of content review decisions in January.

This has been quotidian work down in Facebook’s content review trenches (nipples; nazis; lots of hate speech) that could hardly prepare the still-bedding-in FOB for making an irrevocable call on Trump.

Indeed, in a prefiguring of today’s indecisive FOB ruling, board member Alan Rusbridger appeared to chafe at the Manichean division available to it — to unban or not to unban — by hankering, during a House of Lords testimony in March, for the equivalent of a soccer-style ‘yellow’ card option (so that “if you didn’t want to ban somebody for life but you wanted to have a ‘sin bin’ so that if they misbehaved you could chuck them back off again”, as he put it). But the Board’s rules and bylaws have been prewritten by Facebook.

The weeks rolled on and after being swamped with responses to its call for public feedback the FOB opted to give itself a bit more time to decide Trump’s case — doubtlessly feeling the glare of global significance.

Among those petitioning very publicly for Trump to stay banned from Facebook are Facebook’s former CSO, Alex Stamos, and Facebook’s current VP of spin, the former deputy prime minister of the U.K., Nick Clegg.

“We believe our decision was necessary and right,” the latter wrote in January vis-a-vis the Trump ban — before ‘cheersing’ a pint of homebrew self-review Kool Aid by adding glibly: “Given its significance, we think it is important for the board to review it and reach an independent judgment on whether it should be upheld.”

The roster of civil society organizations urging that Trump not get back the keys to Facebook’s eyeball kingdom is as predictably long as Trump was relentlessly loud when he was allowed to SHOUT on social media.

But in the wake of the former president’s big tech deplatforming, a number of politicians outside the U.S. did a verbal equivalent of that shivery thing when you feel like someone is walking over your grave — expressing misgivings that tech giants could just deCAPSitate an actual president.

Some did also seize the moment to press the case for platform regulation too, though.