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Trump ban decision shows the limits of a Facebook ‘Supreme Court’

Donald Trump, pictured at the White House on 12 January

Drew Angerer/Getty Images

The Oversight Board, an independent body set up by Facebook to review difficult moderation decisions made by the social media giant, has said the firm was right to remove potentially incendiary posts by former US president Donald Trump.

The board also said that Facebook needs to follow its own rules and either ban Trump permanently or reopen his account, rather than leaving him with an indefinite suspension. Effectively, the board has passed a contentious, high-profile problem back to Facebook to decide on.

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In January, as his supporters staged a violent protest at the US Capitol building, Trump posted messages on Facebook urging them to leave peacefully, but also alleging that the US election had been illegally tampered with against his favour. Facebook swiftly removed the messages and eventually indefinitely banned him from the platform.

The Oversight Board has now said that Facebook wasn’t following its own clear rules and that Trump’s account should either be permanently deleted or that a time-bounded ban with a clear end point is needed. It has told Facebook that it has six months to reassess its actions and decide which route to take: reinstate the former president’s account or delete it forever.

“In applying a vague, standardless penalty and then referring this case to the Board to resolve, Facebook seeks to avoid its responsibilities,’ the board said in a statement.

Here, the Oversight Board is echoing critics that say Facebook is using the board to protect itself from high-profile decisions, rather than it serving as a real watchdog to hold the company to account. After one early decision about hate speech posts, Eric Naing from US civil rights group Muslim Advocates said that “instead of taking meaningful action to curb dangerous hate speech on the platform, Facebook punted responsibility”.

In a 2018 interview, before the board was created, Facebook CEO Mark Zuckerberg suggested that a Supreme Court-like body could rule on Facebook’s decisions. Much coverage of the board refers to it as such, but it has no court-like powers. This is only the 10th decision the Oversight Board has made since the original members were announced in May 2020. So far, six of those have been made against Facebook’s call and three – including the Trump decision, which is arguably the most sensitive of all – have backed the company.

Matthias Kettemann at the Leibniz Institute for Media Research in Hamburg, Germany, says the decision is “nuanced, and kicks the ball back into Facebook’s court”.

“Trump can be punished, but not arbitrarily. And Facebook has to enter a reflection process on how its rules and procedures contributed to societal tensions,” he says.

The decision also calls on Facebook to launch a comprehensive review of its “potential contribution to the narrative of electoral fraud”, which Kettemann says was a request made in submissions to the board from civil society activists and academics.

Board member Nicolas Suzor, a law professor at Queensland University of Technology, Australia, says there are big problems for Facebook to tackle, such as whether the way it amplifies news aligns with society’s aims, and whether algorithms and human moderators are too strict on moderation and therefore impinge on free speech, or are too lax and allow hate speech to flourish. “These problems cannot be addressed until Facebook becomes more transparent about how the algorithms work,” he says.

“The reason I joined the Oversight Board is that I’ve long been a critic of how Facebook wasn’t, in my opinion, taking seriously enough the social problems it was contributing to,” says Suzor. “I certainly wouldn’t be here if I thought that we didn’t have a shot at making Facebook better. I’m not so naive to think that’s going to be easy.”

In a blog post, Facebook’s Nick Clegg said he believed the original decision was both necessary and right. “We will now consider the board’s decision and determine an action that is clear and proportionate. In the meantime, Mr. Trump’s accounts remain suspended.”

Regardless of the decision, Trump isn’t waiting for his accounts to be reinstated. This week, he launched a website where he promises to issue updates from the desk of the former president. It remains to be seen whether he can achieve the global influence he once had without the ability to post on mainstream social media platforms.

Facebook didn’t respond to a request to comment.

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