The New "Supreme Court" for Content Moderation

-- By CeliaDiederichs - 07 Dec 2019

Facebook's freedom of self-regulation over its content gave rise to multiple attempts to restrain the networks power. State Courts, specifically within the European Union, intensified their review of Facebook's decisions on content moderation. As an attempt to soothe concerns, Facebook responds with a plan to establish something "like a Supreme Court." Zuckerberg's description of the company's new "Oversight Board" invites oneself to question whether or not Facebook is eyeing at the prospect of establishing its own judiciary review for claims for or against content deletion on Facebook.

Escaping Scrutiny for Exercising Content Deletion

Facebook is currently experiencing a strict inspection over its practices. The freedom of self-governance the public forum of the 21st century enjoyed so far is facing legislative attempts of restriction. In this sense, a decision by Germany's Federal Constitutional Court binds private actors in extraordinary circumstances to constitutional rights almost to the same extent the state is bound to guarantee its citizens defensive mechanisms to superior governmental power. This decision concerns the issuing of exclusion orders from football stadiums but may be transferred to online social platforms. Especially in a country where football is integral part of societal gatherings, football stadiums share a number of similarities with online social media sites: they are forums for social participation readily available to the mass. However, availability comes under the conditions of the operator's domiciliary rights. Individuals may be banned from football stadiums or social platform users may be excluded from the platform, either via account blockage or deletion of their platform activity. When transferred onto Facebook, the constitutional limitation of exercising domiciliary rights translate to an obligation placed upon the social platform to govern the network's content in a way that guarantees each user their constitutional right to free speech.

Facebook now finds itself in search for a way to reach consensus with contentious users in order to harmonise the usage of its forum and constitutional standards. Zuckerberg claims that companies like Facebook "should not be making so many important decisions about speech on our own." Essentially, the most damaging aspect of this obligation is the immense risk of error and public scrutiny.

One route of escape from judicial scrutiny may be found in mechanisms of alternative dispute resolution, specifically in the form of arbitration. Arbitration is popular as it offers a significantly less time costly procedure than judicial proceedings and would allow Facebook to take fast action. However, creating a legal obligation for its users to arbitrate claims of false content deletion could allow Facebook to adjudicate issues of content moderation behind closed doors.

The most prominent example of successfully claiming arbitration as an alternative to judicial control is the Court of Arbitration for Sport. The Court of Arbitration for Sport decides disputes amongst athletes and sport organizations in such a way that judicial control is limited to violations of public policy. Where the legitimacy of the Court of Arbitration for Sport was questioned, Courts deemed the institution and the arbitration agreements legitimate. Whether or not Facebook's Oversight Board could reach legitimacy as an arbitral institution remains questionable, but not impossible. The consequence would be immensely valuable to the company. Instead of comprehensive jurisdictional review, national courts would be limited to reviewing cases for violations against public policy.

Why Must We Care

The prospect of arbitration itself is not necessarily a scary one. Arbitration is well embedded into the international legal order and acknowledged as legitimate and unbiased forum for speedy dispute resolution by most jurisdictions. Some see Facebook's move as one creating "accountability and transparency in content moderation." Furthermore, the demand for fast action to be taken against unlawful online content may be appeased trough internal dispute resolution, seeking immediate dialogue with the author. Why should efforts be put in place to prevent Facebook from establishing its Court of Arbitration for Content Moderation?

Content moderation features a decisive particularity that makes Facebook's control over this legal issue a dark prospect. Content moderation touches upon the bedrock of every democratic society, namely the freedom of speech. Freedom of speech is inherently related to the unique constitutional identity of each jurisdiction. Assuming Facebook is genuinely attempting to mirror constitutional practises, on what standard of free speech should Facebook's Oversight Board determine content deletion?

There is no global standard of free speech for Facebook to enforce over its community, which makes up a quarter of the world population. Countless judicial decisions on free speech prove the intricacy of the distinctive historic, societal and political limitations to free speech in each jurisdiction. Drawing the line between illegal defamation and permissible critique in such a manner that democratic values of a pluralistic society suffer no loss is a matter that must remain subject to full jurisdictional control.

Zuckerberg presents Facebook's Board of Overview as a sincere effort of protecting victims of hate speech or sexual exploitation in the pluralistic Internet society. Undeniably, these are pressing needs. Nonetheless, social networks are not apt to assess the limitations of free speech in a global Internet society as the company will not be able to represent global policy perspectives on a spectrum wider than any law may reach. Recent European legislation fining Facebook for a reluctance to delete harmful posts in time offers a guideline for cases of doubt on content moderation. Where excessive deletion avoids a financial sanction: when in doubt, Facebook will delete. This aligns with the societal phenomenon of cancel culture. Allowing the company to evade strict judicial review of its decisions would ultimately lead to the concession of one of the most prestigious human rights and the abundance of what is a necessity to a free democratic society.

What Can the Board of Overview accomplish?

For now the Board of Overview is a long way from having the characteristics of an arbitral tribunal. Most importantly, Facebook decided that the board will not consider cases of potentially illegal content. But even as currently planned, the Board allows Facebook to escape from scrutiny by outsourcing content moderation to a seemingly independent adjudicative body.

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