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Business Law Today

October 2021

Facebook’s Oversight Board & the Rule of Law: The Importance of Being Earnest

Lakshmi Gopal


  • Facebook has responded to increasing demand for the regulation of social media companies in a novel manner: by creating a separate private business entity, Oversight Board, to advise a narrow band of its content decisions. How can business lawyers understand this novel construction?
  • Oversight Board has helped Facebook distance itself from the Cambridge Analytica scandal and other scrutiny. It has given Facebook a basis to speak somewhat credibly on rule of law and international human rights, which are referenced in its charter and opinions.
  • However, Facebook constructed Oversight Board with a narrow scope that excludes questions about the company’s back-end operations, and within that, it deals with less than 0.01% of appeals to Facebook’s content decisions. Even under those conditions, Facebook has already proved reluctant to cooperate with it.
  • Oversight Board cannot fairly be described as similar to a court or tribunal simply because it publishes ordered opinions. It is a different kind of experiment, and its limitations raise questions about the sincerity of Facebook’s commitment to truly independent oversight based on principles of the rule of law.
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This article is the third in a series on intersections between business law and the rule of law and their importance for business lawyers, created by the American Bar Association Business Law Section’s Rule of Law Working Group. Read more articles in the series.


Press reports have referred to Facebook’s Oversight Board using a range of descriptors from the cynical to the ridiculous. Oversight Board has been referred to as “an elaborate structure for a supposedly independent body to review…content decisions and “a group of [Zuckerberg’s] own making. It has also been called an “independent body, an “independent panel, and a “quasi-independent oversight board. Some reports have gone so far as calling it Facebook’s “Supreme Court, “a quasi-judicial organization, or even an “international human rights tribunal. These descriptions are neither fitting nor accurate. In stark contrast, Oversight Board uses more narrow terminology to describe itself, using little more than its own highly suggestive name and sharply defined contractual terms. Most recently, placing board members on par with journalists, academics, and other members of civil society, the board characterized its work as a mere “part” of a “collective effort” to steer Facebook towards greater transparency. In the face of conflicting characterizations and persistent controversy surrounding Facebook’s business activities, how do lawyers, particularly business lawyers, understand and evaluate Oversight Board’s novel construction, that claims to incorporate principles of the rule of law and international human rights into the core of its activities?

The Structures of Oversight Board

As one of the world’s largest and most prominent social media platforms, Facebook has responded to increasing demand for the regulation of social media companies in a novel manner, by creating a separate private business entity to advise a narrow band of its content decisions. Facebook first announced such a possibility in November 2018 in a note posted to the platform by its CEO Mark Zuckerberg. There, Zuckerberg envisaged an entity that would prevent concentration of decision-making within Facebook as a business, enhance accountability and oversight of Facebook’s content decisions, and assure that content decisions were being made in the best interests of Facebook as a community, rather than merely for commercial purposes.

Zuckerberg’s announcement was made on the heels of the Cambridge Analytica data scandal that broke in the Spring of 2018 when a whistleblower reported that Facebook had allowed a company that sold psychological profiles of voters to political campaigns to harvest detailed personal information from up to 87 million Facebook profiles. This scandal was in addition to growing concern about the polarizing effects of Facebook’s algorithms on society and Facebook’s algorithm-driven censorship practices.

Many credit Sir Nick Clegg, former British Deputy Prime Minister and Facebook’s current Vice-President of Global Affairs and Communications, for forcing action on the business risk confronting Facebook as a result of its mounting scandals. While transitioning to his current role with Facebook, in Fall of 2018, Clegg described Zuckerberg as being “under no illusions about the reputational squall” of the company he leads. To address this “reputational squall,” Clegg conditioned his joining Facebook on the aggressive insistence that Facebook, as “a company with more than 2 billion users,” start acting like a “global power…and go out and engage with the messiness of the real world.

Subsequently, in October 2019, Facebook settled the $130 million Oversight Board Trust as its sole Settlor. Through its Trustees, the Trust then created a private entity named Oversight Board LLC, a name both suggestive and misleading since Oversight Board is not a board, per se. Oversight Board is a Delaware limited liability company that holds the Oversight Board Trust as its sole member. Acting through Oversight Board LLC, the Trust funds the hiring, remuneration, and maintenance of a panel of experts, also termed “Oversight Board,” and referred to herein as the “board.”

Currently made up of 20 expert members from a range of countries and backgrounds, Oversight Board’s board was created to:

protect free expression by making principled, independent decisions about important pieces of content and by issuing policy advisory opinions on Facebook’s content policies.

Facebook maintains a heavy hand in the selection of board members. For example, Facebook retained the right to select the board’s first four board members, all of whom automatically became (and currently remain) the first Co-Chairs of Oversight Board.

Rule of Law and Oversight Board

As Kimberly Lowe pointed out in the first article in this series, “The Business Lawyer and the Rule of Law,” the American Bar Association has broken down the broad concept of the rule of law into a helpful “set of principles, or ideals, for ensuring an orderly and just society” where:

no one is above the law, everyone is treated equally under the law, everyone is held accountable to the same laws, there are clear and fair processes for enforcing laws, there is an independent judiciary, and human rights are guaranteed for all.

Oversight Board’s Charter quite legibly references these and other principles of the rule of law when discussing the role of its board. For example, inspired by principles of due process and equal treatment, Oversight Board’s Charter “specifies the board’s authority, scope and procedures, including how Facebook and the people registered to use its services…can access the board. Additionally, the Charter requires the board to operate transparently, including by ensuring that board decisions are “explained clearly to the public, while respecting user privacy and confidentiality” and provide “an accessible opportunity for people to request [the board’s] review and be heard.” Moreover, in the style of courts and international tribunals, the Charter sets out the expectation that past decisions will establish precedent for future boards.

Along these lines, the board produces written opinions that explain the reasoning behind board decisions. These opinions are freely available, in different languages, on the Oversight Board website. Moreover, opinions are structured for ease of access and include case summaries followed by detailed and structured explanations of board decisions. Mirroring the format of opinions published by courts and tribunals, opinions are divided into standardized sections to enable quick reference to key aspects of each decision.

Perhaps the most striking rule of law feature of these opinions is the inclusion of a section, in each opinion, containing a highly stylized discussion on Facebook’s human rights obligations. It should be noted that from a legal standpoint, the board’s discussion of human rights is grounded in Facebook’s official Corporate Human Rights Policy. This policy voluntarily incorporates the United Nations Guiding Principles on Business and Human Rights, the International Bill of Human Rights, and numerous international human rights treaties. Enforcing compliance with Facebook’s Corporate Human Rights Policy, board decisions include, for example, application of Article 19 of the International Convention on Civil and Political Rights on “Freedom of Expression” to Facebook’s private content decisions.

Notably, in its Charter and published opinions, Oversight Board expressly rejects American-style rights adjudication in favor of European/international approaches. This bias is made legible in two ways. First, according to Oversight Board’s Charter, past opinions do not bind future boards; they retain merely persuasive value. Second, the Charter adopts a balancing approach to the adjudication of human rights, an approach favored by European and international forums. To elaborate, it is generally held that the American common law system tends, as a norm, to treat rights as a sort of property—either individuals have them or they do not. To determine whether an individual is in possession of a right, in addition to reliance on constitutions, statutes, and regulations, a common-law judge turns to precedent (a court decision considered authoritative for deciding subsequent cases involving identical or similar facts).

By contrast and as a general matter, European and international forums treat rights like platonic objects that exist independently of the humans that claim them. This approach permits an adjudicator to weigh and balance individual rights against a larger collection of competing and complimentary rights, with an emphasis on preserving the integrity of the broader system of rights, writ large. Thus, in European and international forums, where past decisions generally have persuasive (as opposed to binding) value, judges look to past decisions for broad guidance on general principles without being obligated to align past decisions with future outcomes. In the American system, for example, parties may press judges, on appeal, to explain and account for differences in the balancing or weighing of rights between different cases. In contrast, European judges (and judges presiding over international forums that have adopted a similar style) enjoy a reasonable degree of play in the joints when it comes to describing the interplay between rights.

Cementing its preference for European and international approaches to human rights adjudication, Oversight Board’s Charter explicitly sets up the task of its boards as one of balancing the fundamental human right to free expression against “authenticity, safety, privacy, and dignity. In a similar nod to European approaches, board decisions are produced with the support of an independent research institute headquartered at the University of Gothenburg. With support from a team of over 50 social scientists on six continents, as well as more than 3,200 country experts from around the world, the institute provides expertise to the board on socio-political and cultural context of board decisions.

This preference in favor of European approaches to human rights adjudication is especially noteworthy when considering Facebook’s long struggle for credibility, as a business, with European authorities, including its difficulties with German and European regulators as well as its difficulties with Norwegian Press. Similarly, a preference for a more international approach is also better appreciated when considering the fact that over 80% of Facebook’s users (and around 95% of the world’s population) are located outside the United States and Canada.

Facebook’s Gains from Engaging with the Rule of Law

In 2018, in the face of seemingly endless scandal and controversy, the very act of Zuckerberg’s publicly imagining and Facebook’s publicly designing and establishing Oversight Board altered, for a time and quite instantly, the public conversation around Facebook. The creation of Oversight Board allowed Facebook to distance itself from the Cambridge Analytica scandal. Further, Oversight Board had given Facebook a basis to speak somewhat credibly on principles of the rule of law and on international human rights, both languages that enjoy considerable legitimacy at the international level, particularly in European and Indian courts (two forums controlling important markets for Facebook). Moreover, through Oversight Board, Facebook has added to “team Facebook” 20 established and respected international scholars, all of whom are charged to critique Facebook with the sole aim of protecting the integrity of Facebook’s most vital business asset, its global community of users.

In providing a transparent government-free procedure for ostensibly independent review of a small selection of its content decisions, Facebook has also deployed the language of human rights to the satisfaction of conservative American sensibilities. For example, Casey Mattox, senior fellow at the Charles Koch Institute, argues that a self-regulatory body such as Oversight Board protects Facebook from politicians “trying to impose their own partisan will on the platforms.” Moreover, Oversight Board currently counts John Samples, Vice-President of Libertarian think tank the CATO Institute, as a board member. Samples sits on the board alongside board members who are well-known progressive stalwarts.

In addition to (and perhaps because of) Oversight Board’s bewildering constellation of voices from across the political spectrum, at a more pragmatic level, passing the proverbial buck on content decisions to Oversight Board has allowed Facebook to alter the nature of the scrutiny it receives, since with respect to any action taken by Oversight Board, criticism of Facebook’s conduct becomes, equally, an indictment of Oversight Board’s diverse, eminent, and expert panel.

The Limitations of Facebook’s Engagement with the Rule of Law

Oversight Board’s detailed attention to the rule of law and international human rights notwithstanding, Oversight Board’s structure enables Facebook to avoid serious questions about its ethical responsibilities to its users and the general public. As critics have pointed out, one challenge is that through Oversight Board, Facebook has subjected only a narrow sliver of its content decisions to the discipline of the rule of law. In its first year of operation, the board culled through more than 500,000 requests from users to examine Facebook’s content moderation decisions, taking on 20 cases and issuing 15 decisions. This means that, in essence, Oversight Board’s board has overturned Facebook’s disputed content decisions 11 out of 500,000 times, based on extended consideration of only 0.004% of appeal requests. Notably, the board has not been transparent about how it determines which decisions to review.

Moreover, Oversight Board’s narrow focus on user-generated content has allowed Facebook to avoid much harder conversations about long-standing problems with Facebook’s back-end operations. For example, by design, Oversight Board is not able to comment on the algorithms that Facebook uses to organize and display user content or the balance that Facebook sets between user engagement and community safety. In other words, Facebook seems to have left its most fundamental speech-related business decisions completely beyond the reach of Oversight Board, leaving those paid experts sheltered in a limited liability shell with only its most downstream, politicized, and public-facing controversies on disputed user-generated content.

Reinforcing Facebook’s dominance over Oversight Board, Facebook has already proved reluctant to cooperate with Oversight Board, even within the narrow field of Oversight Board’s authorized activities. For example, Facebook refused to answer several key questions from a board that it personally curated less than one year ago. In reviewing Facebook’s ban of former US President Donald Trump from the Facebook platform, the board

sought clarification from Facebook about the extent to which the platform’s design decisions, including algorithms, policies, procedures and technical features, amplified Mr. Trump’s posts after the election and whether Facebook had conducted any internal analysis of whether such design decisions may have contributed to the events of January 6.

The board reported that Facebook declined to answer these questions, making “it difficult for the [b]oard to assess whether less severe measures, taken earlier, may have been sufficient to protect the rights of others. Facebook’s narrow construction of Oversight Board, its continued refusal to acknowledge its obligations to cooperate with the board’s fact-finding, and Facebook’s deliberate refusal to operate transparently with respect to its back-end operations raise significant questions about the sincerity of Facebook’s commitment to truly independent oversight based on principles of the rule of law.

The Facebook Files and the Limitations of Oversight Board

The benefit to Facebook in limiting Oversight Board’s scope and power have come to light through a recent document leak. In September 2021, for the first time since the creation of Oversight Board, Facebook became the subject of significant public controversy once again. This time, a whistleblower and former Facebook employee, Frances Haugen, leaked thousands of internal Facebook documents that revealed a considerable range of Facebook’s most predatory practices (the “Leak”). These predatory practices include Facebook’s practice of exempting high-profile users from its ordinary community standards; Facebook’s concealment of research on Instagram’s uniquely harmful effects on teenage girls; and Facebook’s willingness to prioritize user engagement at the cost of user health and personal well-being.

Less than two weeks after news of this Leak, the board’s current Co-Chairs—Catalina Botero-Marino, Jamal Greene, Michael McConnell, and Helle Thorning-Schmidt—authored a narrowly formulated response, posted to the Oversight Board website. The response focused solely on the content-moderation aspects of the Leak, characterizing these as “new information…on Facebook’s ‘cross-check’ system, which the company uses to review content. Framing the Leak as evidence of the need for greater transparency at Facebook, the board additionally listed examples of policy recommendations it had made to Facebook in the interests of increased transparency. For example, the board had warned, in its decision concerning Trump’s Facebook accounts, that a lack of clear public information on Facebook’s policies regarding its high-profile users could contribute to perceptions that Facebook is unduly influenced by political and commercial considerations. The board pointed out that it had also warned Facebook about the danger of removing user content with little explanation, also pointing out that it had recommended in three of its first five decisions that Facebook tell users the specific rule that triggered removal of their content.

While the board’s response was prompt and detailed, it was so narrowly formulated that it stood disconnected from the very same events it sought to address. First, the board is limited to speaking about Facebook’s user-generated content and content policy. As such, the board addressed the issues of content moderation raised by the Leak with laser focus, while avoiding even so much as a mention of any related issues that provided context, such as concerns about Facebook’s harmful use of algorithms. Second, and more concerningly, the board’s response subtly reframed the narrative around Facebook. For example, what credible news outlets refer to as Facebook’s problematic and deliberate deference to high-profile users, the board describes as the product of “perceptions” of undue influence created by policies in need of review. As an additional example, what Haugen, an independent whistleblower, describes as a company that has made a practice of magnifying and profiting from the worst in human nature, the board instead characterizes as a company that would benefit from being more transparent about its activities and from taking the advice of the board seriously. Notably, Oversight Board offers no basis, textual or otherwise, for these characterizations of Facebook’s motivations and circumstances. Third, the board makes no direct reference to the Leak (referring to it as a “disclosure”), and makes no commitment to review the more than 1,000 documents that were placed on the public record in the public interest. The board merely commits to seeking further information from Facebook and addressing Facebook’s continued failures to be forthright in its dealings with Oversight Board.

Ultimately, the board’s response to the Leak reflects deliberate limitations placed on the scope of Oversight Board’s work and purpose. These limitations, in turn, stem from Facebook’s long-standing assumptions about how social media companies should be regulated. Before the appointment of a single board member, Facebook had already taken a clear position on what aspects of its social media platform should be subject to external regulation: harmful user-generated content, online activity that threatens the integrity of elections, privacy, and data portability. Simultaneously, Facebook has also worked to shield its algorithms and other aspects of its back-end operations from public scrutiny and regulatory zeal. Oversight Board was structured accordingly, as a $130 million project focused tightly on expert-led self-regulation of a narrow line of Facebook’s content moderation decisions. This tight structure leaves very little room to a board of experts to independently consider what effective oversight might look like.

No Court for Facebook

While even lawyers have been willing to claim that Oversight Board is comparable “to an international human rights tribunal or quasi-judicial monitoring institution, as a private activity funded and established by a single corporation, Oversight Board cannot fairly be described as (or even as similar to) a court or tribunal, simply because it publishes ordered opinions that reference the principles of rule of law and international human rights. The entity deals with a very narrow slice of appeals to Facebook’s content decisions, operating through a framework narrowly tailored by Facebook to address an even narrower pre-determined set of concerns. Even in its processing of such appeals, the board has struggled to gain information and cooperation from Facebook, an entity that has (as the creator of Oversight Board and the settlor of the Oversight Board Trust) far more power and control over the broader context of the board’s decision-making process than any “party” to a dispute should be granted.

As illustrated by the board’s recent response to Facebook’s latest controversy, the narrow ambit of Oversight Board’s work prevents it from engaging with Facebook on fair and equitable terms. The board relies on Facebook for its corporate fact finding and implementation of its policy decisions. By contrast, given the narrow scope of the board’s work, Facebook relies on the board for very little that the board is not obligated to provide. There is a power inequality between the board and Facebook that could not have existed if Facebook had truly granted Oversight Board anything remotely comparable to the authority of a court or tribunal. Oversight Board’s narrowly tailored scope seems to suggest that board members are simply playing out a role designed for them by Facebook. Even if board members fulfill this role with independence and integrity (as one can only assume that they do), their personal independence and integrity is not sufficient to deem the entire structure truly independent.

In the final analysis, there is little value in thinking of Oversight Board as a court, tribunal, or even an independent body. It is something far more interesting. It is an experiment at the cutting edge of technology and the rule of law—one that Facebook has carefully crafted to replicate a precise model of regulation of social media that the company seeks to advance.

Compare Oversight Board to another experiment in social media regulation. Twitter Chief Executive Jack Dorsey has also been experimenting for solutions for self-regulation of social media platforms. Unlike Facebook, Twitter seeks to give users more “algorithmic choice” to decide what they see. To pursue this strategy, Dorsey set up an employee-funded project called “BlueSky.” Invoking a different set of principles than those relied upon by Oversight Board, BlueSky emphasizes users “governing” themselves rather than being governed by companies (e.g., Facebook or Oversight Board). Using federalism as a point of reference, BlueSky invokes the term “fediverse” to describe a de-centralized network that “hands control back to the user, who can choose the app that best suits their needs and still have the freedom to interact with users on different apps.

Facebook and Twitter could not be more different as social media platforms. Facebook has approximately 2.8 billion users located across the world, with the bulk of its users located outside of the United States and Canada. Twitter has a few hundred million users, most of whom are highly educated, high-income Americans. Regulation that supports one company is likely to destroy the other. For example, Twitter’s fediverse would allow people to interact with Facebook users without having to join the Facebook platform, a change comparable to how e-mail platforms like Hotmail “freed” users from reliance on email attached to paid platforms like America Online. In contrast, the thought of an unelected 20-member interdisciplinary board reigning over content decisions that impact 2.8 billion people, without any oversight of the back-end decisions organizing that content, would probably have Twitter’s highly active and highly informed customer base up in arms. As such, the threat of regulation presents considerable stakes for all companies involved.

As things stand, the situation remains unpredictable. As Oversight Board continues to engage with Facebook and the public, it could build weight for Facebook that might create a more balanced power dynamic between the two entities in the future. The board’s work thus far presents a display of the long-term potential that Oversight Board might offer Facebook in this regard. First, the board can do what Facebook cannot: it can openly acknowledge and publicly address Facebook’s scandals. Second, in so doing, by consistently addressing issues along the single axis of content moderation, the board can take control of the narrative building around Facebook scandals. For example, in its response to the recent Leak, the board characterized Facebook’s failures as stemming from a lack of transparency, rather than from what the Press had labeled deliberate predatory behavior. Third, the board has shown itself well-positioned and adequately incentivized to work with (rather than against) Facebook to address these problems, as the public perception of the board’s effectiveness depends upon its ability to provoke genuine change in Facebook’s corporate practices. On the basis of these strengths, Facebook might eventually find genuine value in cooperation with its advisory entity and support it to build capacity that more closely resembles that of a true court or tribunal. Alternatively, Facebook might find itself satisfied or frustrated with the experiment and move on to greener pastures.

Fundamentally, Oversight Board is not one thing or the other, certainly not yet. At present, it is a vessel, an experiment with various kinds of potential, potential that is itself yet unknown. What it becomes will depend greatly on how it is received, how it is understood, and how it is explained—and this depends, most centrally, on the work of business lawyers.