The Facebook Oversight Board’s decision on the suspension of Donald Trump has attracted media attention around the world. Of course, Trump, Facebook and free speech wars make enticing copy. But what is more important for all of us is what this decision and the structures that underpin it mean for our human rights more broadly in the digital age.
International human rights law is founded on the principle that states have a duty to protect human rights. This includes a negative obligation – the state should not do anything to violate our rights. And a positive obligation – the state must take action to protect our rights from abuses by others. That positive obligation can be fulfilled through effective law and regulation. This means, for example, that the State must not take life arbitrarily and it must also protect life through legislation to effectively criminalise murder. The UN Guiding Principles on Business and Human Rights create a helpful but unenforceable onus on businesses to respect international human rights law, but they leave the responsibility to protect human rights and to provide accountability for abuses firmly on States.
When a pack of stray dogs attacked a woman in Bucharest, the European Court of Human Rights found Romania had violated her rights because it had done nothing to address the obvious danger of wild dogs in the city. Failing to take action to protect our rights is, in itself, a violation of human rights law.
The Oversight Board’s decision is couched in international human rights law principles, but it cannot address the most fundamental problem: States have failed to address the very serious human rights issues posed by the global reach and power of social media platforms. Scandals like Cambridge Analytica manipulating voters in elections around the world and the UN’s findings on the role of Facebook in fuelling gross human rights violations in Myanmar make it impossible to ignore the seriousness of the consequences. But focusing on freedom of expression in relation to content and individual users who may take advantage of the platforms misses the point.
Facebook remains highly conflicted when it comes to enforcing consistent standards. The Oversight Board was established as part of Facebook’s avowed commitment to respecting human rights as reflected in its policy on human rights published earlier this year. It is designed to provide a degree of independent oversight for the difficult decisions Facebook has to make on a daily basis about ways its platforms may be used and abused. But, while Facebook was willing to respond to the Board’s questions on content moderation, community standards and values, it did not answer some of the most probing queries from the Board. Questions about content amplification and the algorithms behind the distribution of posts like Trumps, for example, were met with a deafening silence.
These questions are at the heart of Facebook’s business model, but they are also the key to the potency of the platform in fueling hate and facilitating serious human rights violations. The impact of a post stems not just from the content or the user’s number of followers, but is also critically related to the way it spreads. In 2014, Facebook conducted a controversial study on “massive-scale emotional contagion through social networks” which showed that engineers could affect the way people feel just by manipulating their news feeds. And an internal Facebook study in 2018 that showed how the company’s algorithms were driving division was reportedly buried by senior executives. These are the real human rights issues raised by social media platforms – they have the ability to affect how we think and feel as individuals on a massive scale. By that measure, Trump is just a bit player.
While the Board found that the decision to suspend Trump’s account was reasonable, it found the indefinite nature of the suspension was not. Trump’s future on Facebook will be reconsidered when Facebook has to revisit its decision within six months. But when that happens, we should beware of getting caught up in the media frenzy around the man. While the world’s media spotlight is on the divisive figure of Trump, there will be no change to Facebook’s divisive business model, which is the really difficult human rights problem.
The Facebook Oversight Board is not a court – it is essentially a corporate advisory body. It cannot give a judicial remedy for human rights violations capable of providing real accountability. Whether your rights are violated as a result of hate speech distributed on Facebook, or because Facebook has manipulated your world view or prevented you from sharing your opinions with the world, it is not the Oversight Board that will save you. International human rights law requires limitations on the actions of both State and corporate actors to protect us all.
There must be a human-rights respecting response to the dangers posed by the wild dogs of social media. When Facebook suspended Trump, he was the state. If we value our rights, we need to build durable, enforceable legal frameworks that are capable of reining in the excesses of demagogues and big tech alike. International human rights law already gives us a global legal framework- it is now time for individual states to deliver on it and make clear what it means in the digital space. We cannot afford to wait.
Susie Alegre is a British human rights lawyer now writing a book about the application of such law to the global digital sphere.
(Techonomy’s David Kirkpatrick appeared this week on CBSN to discuss the Facebook Oversight Board’s decision and the future of regulation.)
