Nikita Munjal is the IPilogue Content Manager, an IP Innovation Clinic Fellow, and a third-year JD/MBA Candidate at Osgoode Hall Law School.

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In January 2021, the then-acting president of the United States, Donald Trump, from Facebook for statements he had made in the immediate aftermath of the violent insurrection which took place at Capitol Hill. Trump’s comments were seemingly the last straw for the social media giant who had repeatedly cited its commitment to upholding free speech in defending its stance on Trump’s use of inflammatory language on the platform.

However, Facebook’s decision in January was not final. When accounts are banned or posts are removed from Facebook or its subsidiary, Instagram, users can appeal the decision to the quasi-judicial body, Alternatively, Facebook can refer cases to FOB to determine whether its decision had been fair, as was the case here.

FOB’s Decision

In early May 2021, the that Facebook was justified in suspending Trump’s accounts. However, they stated that it was “not appropriate” for Facebook to impose an indefinite suspension, which contravened Facebook’s standard operating procedure. Facebook’s penalties usually pertain “removing the violating content, imposing a time-bound period of suspension, or permanently disabling the page and account” (at p.1). FOB gave Facebook six months to reexamine its arbitrary penalty and give an appropriate penalty based on the gravity of the violation and the prospects of future harm.

Facebook’s Response

In June 2021, approximately a month after FOB’s decision and within the six-month time period, Facebook : Trump’s suspension from Facebook and Instagram will last for two years, effective from the initial suspension date. However, at the end of the two-year period, Facebook will reassess whether the risk to public safety has receded.

Unsurprisingly, this set of decisions has garnered mixed reactions. Some writers have stated that this is a victory for Trump, who could return to the social media platform in time for a potential 2024 presidential run. Others have argued that this is a victory for Facebook since it could decide whether to continue to the suspension or allow Trump back on its platforms Ěýbased on the political landscape at the time while hiding their rationale behind the risk posed to public safety.

Broader Implications for Free Speech on Social Media

Trump’s social media presence during his presidency exacerbated the discourse around regulation and moderation of content posted on social media. Specifically, questions have arisen as to whether corporations or governments are better positioned to regulate content on social media.

Some industry members including FOB member and former prime minister of Denmark, Helle Thorning-Schmidt, are calling for . These proponents cite its funding, autonomy from Facebook, and diverse membership as reasons for its potential success in regulating the space. However, not everyone agrees with that position. For one, FOB seems powerless in for its role leading up to the insurrection. This is not to suggest that Facebook is the only social media platform grappling with finding an appropriate balance between promoting free speech and preventing harm; however, its role cannot be understated.

Critics argue that FOB’s decisions by focusing too much on corporate oversight. Instead, the focus should be placed on passing legislation that curtails Big Tech’s business models and protects users from their voraciousness.

Currently, the Canadian federal government is preparing to unveil legislation regulating social media content. The legislation to be modeled after Germany’s NetzDG law, which requires social media platforms to remove illegal content under tight deadlines or face severe fines.

warn that following Germany’s precedent could be problematic for two reasons. First, it won’t effectively deal with content that is “lawful but awful”, that is, content that is legal but is known to create real-world harm. Given the Charter of Rights and Freedoms’ broad protections for freedom of expression in Canada, it will be difficult for the government to curb the expression of harmful ideas in public spaces. Second, the legislation could set a bad example for countries that criminalize forms of expression protected under international human rights law. Laws that impose severe penalties on social media companies for failing to remove illegal content under a nation’s laws could increase the criminalization of political dissenters and minority communities. To address these concerns, scholars suggest Canada adopt a multilateral approach by working with other rights-respecting democracies to prevent the internet from “splintering into a series of national networks.”

Ultimately, until the federal government unveils the legislation and holds consultations, it is difficult to predict its effectiveness. However, online content requires regulation, whether that be from corporate entities, governments, or something in between.

The post Facebook Bans Donald Trump for Two Years, but the Discussion on Regulating Free Speech on the Internet is Just Beginning appeared first on IPOsgoode.

What is the Facebook Oversight Board?

Since at least early 2018, when the scandal, Facebook has faced heavy criticism for the way the social media empire operates. Founder and CEO Mark Zuckerberg before Capitol Hill and released a statement promising to “.” The FOB seems to be the endeavor in fulfilling that promise.

A quick scan of the FOB’s makes it clear the FOB’s framework emulates a quasi-judicial system. For instance, the board is independently funded to ensure its autonomy from Facebook. Further, the board’s decisions are binding upon Facebook unless the decisions could violate the law.

The current board is comprised of an impressive 20 members, including law professors, the former Prime Minister of Denmark, and a Nobel Peace Prize Laureate. Some of the , like Professor , have historically Facebook’s methodology. The appointment of renowned critics, combined with fixed terms for board members, lends credence to Facebook’s assertions of the board’s autonomy.

Yet, people are that the FOB will have any lasting impact. One of the reasons for the skepticism is that the members of the board are . Realistically, for a platform like Facebook, which has more than one billion users worldwide, it’s highly unlikely to have a board that reflects all its users’ needs. That does not excuse the lack of representation for LGTBQ+ advocates or people from certain regions – such as the Middle East, North Africa, and Southeast Asia. The lack of diversity highlights the more significant underlying problem Facebook and the board face, finding the line between freedom of expression and hate speech for people with vastly differing values. Ěý

Freedom of expression, at whose expense?

Facebook’s unwillingness to moderate or censor what content is available to its users has had severe offline consequences. By championing “free expression,” Facebook allowed the spread of hate speech against and and and division in the United States.

The FOB will begin hearing cases later this year. They will listen to appeals of cases where Facebook or Instagram, owned by Facebook, reviewed and removed content reported as offensive. In the meantime, harmful information is still disseminating on Facebook’s platform without much censure. Even those within the company are displeased with the company’s and .

Critics of the company had repeatedly stated that real changes necessitated a threat to the company’s bottom line. Indeed, once companies such as , , , and announced they would be pulling advertisements from Facebook to combat the amount of hate speech online, Mark Zuckerberg quickly announced changes to the company policy. Under the new policy, “Facebook will ban ads that target people from a specific race, ethnicity, nationality, caste, gender, sexual orientation or immigration origin are a threat to the health or safety of anyone .”

This policy was quite the turn-around from earlier in the summer when Facebook was adamant it its current policy on free speech. Ultimately, we will have to wait until the FOB releases its first set of decisions, and until we see Facebook’s response to these decisions, to determine what values will be upheld in the name of free expression. As one of the leaders in technology, the precedent Facebook sets with the FOB could have lasting implications on how technology companies operate and are regulated.

Written by Nikita Munjal. Nikita is an IPilogue Editor, Clinic Fellow with the Innovation Clinic, and a JD/MBA Candidate at Osgoode Hall Law School.

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