Facebook’s Supreme Court starts to hear its first cases

Note: This was originally published as the daily newsletter at the Columbia Journalism Review, where I am the chief digital writer

Almost three years ago, Facebook chief executive Mark Zuckerberg floated what seemed like a bizarre idea: that the massive, multibillion-dollar corporation he co-founded might create a kind of Supreme Court, which would hear cases involving questionable moderation decisions made by the company. And despite much scoffing and skepticism from Facebook’s critics over the ensuing years, Zuckerberg has done exactly that, setting up a theoretically independent body known as the Facebook Oversight Board, with a charter that prevents the company from meddling in its decisions, and requires Zuckerberg and Facebook to implement any recommendations the board makes, provided they aren’t against the law. Even after the group was created, however, it took some time before it could actually hear cases, for a variety of technical reasons: for example, the company said the board needed specially-equipped laptops so that personal information about users didn’t get exposed to public view. This week, the board finally started doing its work, and the response shows that there is still a lot of skepticism out there about Facebook’s big idea.

Many of those who see the social network as contributing to the problems of political disinformation were hopeful the Oversight Board might be up and running in time for the US presidential election, so it could rule on things like Facebook’s decision not to remove voter-fraud allegations and other conspiracy theories posted by Donald Trump and his followers. Instead, the board’s first cases include:

  • A screenshot of tweets by former Malaysian Prime Minister Mahathir Mohamad, in which he wrote that “Muslims have a right to be angry and kill millions of French people for the massacres of the past”
  • Photos of a dead child, fully clothed, with text in Burmese asking why there was no retaliation against China for its treatment of Uighur Muslims
  • Alleged historical photos of churches in Baku, Azerbaijan, with text saying that Baku had been built by Armenians and asking where the churches had gone
  • Eight photographs on Instagram which included female breasts and nipples, with text in Portuguese about breast cancer symptoms
  • An alleged quote by Nazi Germany’s propaganda chief Joseph Goebbels
  • A video about France’s refusal to authorize hydroxychloroquine and azithromycin as treatments for COVID-19

The board said it got more than 20,000 suggestions for incidents that users wanted it to review since October 2020, which gives some indication of just how difficult the job of running Facebook’s Supreme Court will likely be, considering the vast quantities of content that are posted to the social network every day. The board has invited the public to comment on the cases (which have had any personal identifying information removed) over the next week. If it opts to overrule Facebook’s earlier decisions, the company must comply with that ruling, and must also publicly respond to the board. “Facebook has to follow our decision. And that means if they have taken content down, they have to put it back up. But they also have to use this as a guideline for other similar cases,” said Helle Thorning-Schmidt, former Prime Minister of Denmark and an Oversight Board member.

Not long after the members of the Oversight Board were named—a group that includes former Guardian editor-in-chief Alan Rusbridger, as well as a Nobel Peace Prize winner, multiple experts in constitutional law, and a former US federal court judge—a number of observers criticized the makeup of the board, as well as some of the rules that hamstring its decisions. For example, as it stands now, the group can’t hear cases about things that Facebook has left up but should have taken down, only things that it has taken down but arguably should have left up, which some believe is a significant failing (the company says these rules may change over time). The group also isn’t able to hear complaints about Facebook’s decisions involving content shared by Facebook or Instagram messenger or on WhatsApp, all of which have been significant sources of disinformation.

More recently, a group of academics, journalists, and other experts who don’t approve of the Oversight Board’s limited mandate—including former Facebook investor and adviser Roger McNamee and Maria Ressa, the crusading Philippines journalist behind Rappler—created something they are calling the Real Facebook Oversight Board. The name quickly created a controversy, after the internet service provider that hosted the Real Oversight Board’s website took it down following what appeared to be a complaint from Facebook, based on the idea that the name would cause confusion (some sources close to the company told CJR the takedown was an automated decision by the hosting provider). But the copycat board has continued to plow ahead with its campaign to highlight the actual board’s limitations, and it is having some success, in part because those limitations are very real.

Here’s more on Facebook and the Oversight Board:

A virtual discussion: After the members of the board were named publicly, CJR hosted a series of interviews with journalists, legal experts, and others familiar with the board. The series included Daphne Keller, director at the Stanford Center for Internet and Society and former deputy legal counsel at Google; Steven LevyWired magazine editor-at-large and author of “Facebook: The Inside Story”; David Kaye, former special rapporteur for freedom of expression for the UN; Alex Stamos, director of the Stanford Internet Observatory and former head of security at Facebook; Emily Bell, director of the Tow Center for Digital Journalism at Columbia University’s journalism school, and Rebecca MacKinnon, founding director of the Ranking Digital Rights project at the New America Foundation.

Keeping abreast: One of the cases that the board has chosen to hear refers to the social network’s confusing policy around the posting of photos that show naked breasts, something that users often do as a show of support for breast-cancer survivors, among other things. But as Vice points out in a story based on a leaked copy of the company’s policies, coming up with a decision that will please all sides—especially on a global basis, not just in the US—seems like an almost impossible task. “Facebook’s policy on breasts and nipples has long been a source of controversy as activists pointed out that the company’s ban on female nipples except under certain circumstances such as breastfeeding makes no sense considering it accepts male nipples under all circumstances.”

Jellyfish skeleton: In a discussion last year on CJR’s Galley platform, Kate Klonick, a law professor at St. John’s University in New York who has studied the board, said she was cautiously optimistic about the group’s ability to actually affect the decisions that Facebook makes about content. She said that she liked to describe the idea as “trying to retro-fit a skeletal system for a jellyfish. A private transnational company voluntarily creating an independent body and process to oversee a fundamental human right [is] really a very daunting idea that no one has ever tackled before.”

Other notable stories:

The Intercept published a statement of principles for its freelancers, an agreement facilitated by the Freelance Solidarity Project of the National Writers Union and developed over the past year through conversations between members of Intercept leadership and a team of frequent contributors. It resembles similar documents that the NWU has devised over the years, but is unique in its collaborative creation. “I’ve never been part of any process like this before,” said Betsy Reed, editor in chief of The Intercept. The publication commits to a number of principles, including communicating openly with freelancers, being mindful of intellectual property, providing necessary resources, and giving credit for work.

CNN said it is involving “law enforcement” after James O’Keefe, founder of the right-wing group Project Veritas, crashed a morning editorial call with CNN President Jeff Zucker and said Project Veritas would be releasing tapes from previously recorded phone calls. “Legal experts say this may be a felony. We’ve referred it to law enforcement,” CNN PR said on Twitter in response to a video of the call that O’Keefe posted. In the video, the Project Veritas founder can be seen telling Zucker, “We’ve been listening to your CNN calls for basically two months and recording everything.”

Feven Merid writes for CJR about the “bad boys” of the media industry. “When investors show up, promising to reinvent or save the news industry, it often portends chaos,” she writes. “Some of the most notorious figures have cost thousands of journalists their jobs.” Her list includes Heath Freeman, one of the most heavily criticized investors in the business, who owns more than two hundred outlets through the hedge fund he manages, Alden Global Capital. Since taking control of Digital First Media in 2011, Freeman has cut two out of every three staff positions in the company’s newsrooms.

Users of Google’s News Showcase will soon be able to read select paywalled articles at no extra charge. That’s one of several announcements that the search giant made Wednesday about News Showcase, the program where it pays publishers (with $1 billion committed initially) to license their content for a new format in Google News. So far, Google News Showcase has launched in such countries as Germany, Brazil, Argentina, Canada, France, U.K. and Australia. In several cases, those are markets where it’s previously faced legal challenges and antitrust scrutiny.

Not long after Politico published a feature by chief political correspondent Tim Alberta about Michigan’s fake voter-fraud scandal, in which he criticized the Republican National Committee, the communications director for the RNC emailed Alberta to ask why he hadn’t sought a comment from RNC chairwoman Ronna McDaniel or anyone else at the committee. According to Washington Post media columnist Erik Wemple, Alberta responded that in most cases he would request comment from an organization, except in cases when “the person/entity has proven so dishonest and so untrustworthy that I feel no obligation to provide them a platform from which to deceive the public. Sadly, that is the case with Chairwoman McDaniel and her staff at the RNC.”

Rachelle Hampton writes for Slate about how Charlemagne tha God, who became famous as a host of the radio show The Breakfast Club, has become the go-to commentator for many media outlets that are looking to target the Black community. This choice is problematic for a number of reasons, Hampton writes, including a history of making disturbing comments about women, an allegations of sexual misconduct (which he has denied). “It doesn’t matter whether your opinions are actually widely held in the community you claim to represent. For the politicians looking for campaign pit stops and the media outlets looking for sound bites, the only thing that really matters is a young Black audience,” says Hampton.

Ruth Margalit writes for CJR about the upsides and downsides of newsrooms becoming remote-only workplaces during the COVID pandemic. “Questions of representation—which stories are told, how, and for whom—have always been crucial in journalism, if under-thought,” she writes. “The sudden shift in perspective brought on by remote work has made clear how the newsroom itself, for all its social and collaborative aspects, can be a place of exclusion.” If workers no longer have to clock in to an office at a certain time, and can instead have more flexible schedules—to allow for such things as providing care for young children or elderly parents—then the newsroom of the future has the potential to be a more inclusive place, Margalit notes.

A growing source of conspiracy theories about the COVID vaccine is a UK-based self-published conspiracy theorist “truthpaper” called The Light, edited by a man from Manchester who runs a business selling anti-vaccine T-shirts and 9/11 conspiracy merchandise, according to a report in The Guardian. The outlet, which has published three issues since it first appeared in September, draws heavily on long-running online conspiracies about a new world order, which have attached themselves to the current pandemic. Among other things it encourages people to stop wearing masks and disobey lockdown on the basis that the coronavirus is a hoax. Its distribution relies on a 5,000-strong private Facebook group where volunteers offer to hand out copies and deliver them to their neighbors.

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