Facebook lays out the rules for its new Supreme Court for content

Note: This is something I originally wrote for the daily newsletter at the Columbia Journalism Review, where I’m the chief digital writer

Until recently, Facebook founder and CEO Mark Zuckerberg rejected any suggestion that his company was a media entity, despite the fact that the platform’s all-powerful News Feed algorithm chooses what to show users based on a series of unknown editorial criteria, and that tens of millions of posts, photos, and other pieces of content are taken down every year because they breach the company’s rules. In the spring of 2018, however, in an interview with Ezra Klein of Vox, the Facebook CEO seemed to be growing accustomed to the idea that the company was a kind of media entity, and even mused out loud that maybe Facebook should have a kind of editorial board — or a Supreme Court, as he described it; an external body that would “ultimately make the final judgment call on what should be acceptable speech.” Over the past two years, Facebook has been trying to fulfil that promise, designing what it calls an Oversight Board, and this week the company announced the bylaws or rules that the board will operate under, as well as its first staff member.

The director of the new entity is Thomas Hughes, former executive director of a group called Article 19, an international non-governmental organization that focuses on freedom of expression and digital rights (named after the section of the Universal Declaration of Human Rights that deals with freedom of expression). Hughes will essentially run a limited liability company called Oversight Board LLC that Facebook created, which in turn will be financed by Facebook through an arms-length trust (which the company has committed to funding for six years). As it did with its star-crossed attempt at launching a cryptocurrency called Libra, the social network is going above and beyond in order to show that it is taking a hands-off approach to the new entity. The bylaws for the group even state explicitly that the board can overrule Zuckerberg or any other Facebook executive when it comes to content decisions. That said, however, there are some pretty large caveats.

For example, the three co-chairs who will be in charge of running the board (Hughes will run the administrative side of things, rather than the group that makes the actual decisions) are to be chosen by Facebook, which for many will raise immediate questions about the impartiality of those who are selected. Those co-chairs will then have the responsibility of choosing the rest of the board, which could number as many as 40 people (the Facebook bylaws don’t specify an exact number, but say that the “ideal number” of members is 40). And when it comes to the kinds of cases that this board will hear, Facebook has placed some restrictions on that — at least initially. For example, at least for the first while, the company says that the board will only be able to hear cases about content that was taken down, and make decisions about whether these removals were appropriate. It won’t be able to adjudicate whether content that wasn’t taken down should have been — such as the video of Speaker Nancy Pelosi that was slowed down to make her appear drunk. Facebook said that this restriction could change over time, but didn’t say when or why.

On top of that restriction, the kind of content that the board can adjudicate is also further restricted. The bylaws state that the group won’t be able to assess the suitability of any content that is posted through Facebook’s Marketplace online classifieds, anything that qualifies as a fundraiser, and anything that is posted through the network’s Facebook Dating app. The board also won’t be able to rule on any decision that has to do with intellectual property or other legal matters, and it won’t be entitled to hear any cases involving content on WhatsApp, Messenger, Instagram Direct (the personal messaging part of Instagram) or the Oculus virtual reality service. The bylaws also state that Facebook doesn’t have to comply with the board’s rulings if doing so would cause the company to break any laws in the countries in which it operates. Facebook’s vice president of policy, former British MP Nick Clegg, added that the board won’t be allowed to consider the contentious issue of whether to fact-check political ads, at least not until after the 2020 election.

For some, the fact that Facebook is even making the effort to have some kind of third-party oversight when it comes to content published on the network is a big step forward. For others, however, the restrictions that are being placed on the board reinforce the idea that it is mostly an elaborate exercise in window-dressing, a kind of ethical fig leaf that the company can use to pretend that it cares about content rules, while it continues to do whatever is in the best interests of the corporation and its bottom line. Will the board be a real Supreme Court, able to make important decisions that affect the way billions of people experience the social network? Or will it be a kind of sham court, stacked with political appointees who spend their days carrying water for Zuckerberg and his corporate goals?

Here’s more on Facebook’s Oversight Board:

Filled with loopholes: Salvador Rodriguez, writing for CNBC, argues that the bylaws for the new board leave too much control in the hands of Facebook. The 46-page document is “filled with loopholes and binds Facebook to very little concrete action,” he writes. “These bylaws make clear that Facebook is still firmly in control.” In addition to the restrictions on the types of content it can adjudicate, the bylaws suggest that any decisions will only apply to specific pieces of content brought before the board, and won’t necessarily create any precedent for the company to take action on similar types of content, Rodriguez says.

Uncharacteristically incremental: Evelyn Douek, who is working on a doctorate in law from Harvard and writes for the legal blog Lawfare, sees a positive side to some of the restrictions. Instead of rushing into making big decisions, the way the company often does, Douek argues that the bylaws “betray an uncharacteristically incremental approach from Facebook” in the sense that the board’s original scope will be fairly limited, with promises to ramp up the group’s decision-making power at some point in the future. In the end, Douek says, the bylaws are a step forward, “but as the various crises around the world right now suggest, written rules get you only so far.”

Hurry up and wait: Bloomberg notes that the way the board is structured won’t make it easy for the group to act quickly to stop the viral spread of misinformation or abuse on the network, because the decisions are expected to take as long as three months to work their way through the process and get to the point where Facebook can act on them. In what the company calls “exceptional circumstances,” a case could be expedited, and then the decision-making process might be sped up to the point where it would only take a month.

Other notable stories:

Warren Buffett, the billionaire investor who was once seen as a potential savior for print newspapers, is cashing in his chips and walking away from the table: Berkshire Hathaway, Buffett’s holding company, has sold its entire stable of newspapers — a group that includes the Buffalo News — to Lee Enterprises. The fact that Berkshire Hathaway is also lending Lee $576 million to pay for the acquisition suggests that Buffett would much rather earn a steady rate of interest from a loan than rely on revenue from the newspapers themselves.

ABC News has suspended the correspondent who speculated on-air that all four of Kobe Bryant’s daughters were on board the helicopter that crashed and killed the NBA icon and eight others on Sunday. Before it was confirmed that only one of Bryant’s daughters was on board with him for the flight, chief national correspondent Matt Gutman said during his live report from the scene that Bryant’s other daughters were on the helicopter as well. He corrected the error in a later report and apologized for conveying the misinformation, but the network said his behavior “failed to meet our editorial standards.”

News Corp. launched its competitor to Google News, which is known as Knewz, with a website design that many described as garish, offensive, and even nausea-inducing. The company said that the site draws news from more than 400 publishers and sites, and uses a combination of algorithms and human editors to select to most interesting or relevant. “We live in a world of vexatious verticals, of crass clickbait, of polarized perspectives and fallacious, fact-free feeds,” News Corp. CEO Robert Thomson said in a statement. “Knewz is knowing and needed. Knewz nous is in the house.”

The BBC announced that it is cutting about 450 jobs from its news division in order to meet a cost-saving target. Programs that will be hit by the cuts include BBC Two’s Newsnight, BBC Radio 5 Live and the World Update programme on the World Service. BBC News boss Fran Unsworth said there had to be a move away from traditional broadcasting and towards digital. But broadcasting union BECTU said the changes mean staff will be “under even more pressure to deliver”. BBC News currently employs around 6,000 people, including 1,700 outside the UK. It is hoping to save about $100 million with the cuts.

Nicholas Pelham, the Middle Eastern correspondent for The Economist, writes about how he was detained in Iran for almost two months last year while on a reporting trip. “I was paying my bill at the hotel when they came,” he writes. “There were seven of them, stiff and formal in plain-clothes. “Mr Pelham?” asked the shortest one and presented me with a hand-written document in Farsi. “It’s been signed by a judge,” he said. “It entitles us to detain you for 48 hours.” He paused to allow the information to register on my face. “It might be less,” he added. “We just need you to answer a few questions.”

Bob Norman writes for CJR about how Matt Drudge, whose site is one of the biggest conservative traffic sources on the internet, has turned on Donald Trump since the 2016 election. He even manages to get the reclusive media mogul on the phone to talk about it, but all Drudge wants to discuss is how Norman drove out to his $2.2-million estate near Miami and knocked on the door trying to find him. “That’s not fair that you would come onto my property, knowing the climate we’re in,” Drudge said. “What happens if it was a stalker?”

After a year of beta testing, ad-free-news startup Scroll opened up to the general public on Tuesday. Founded by former Chartbeat CEO Tony Haile, the company offers users an ad-free reading experience on more than 300 news sites (plus a few other added features, including audio versions of all articles) for $5 a month. Most of that money goes to Scroll, but part of it is shared with the publishers whose sites users frequent the most, which Haile hopes will keep media outlets on board. He says Scroll was born out of his own frustration as an online news reader who resented slow-loading junk ads and dodgy trackers.

Presidential candidate Elizabeth Warren has released a proposal to deal with disinformation online, but while the announcement caused some concern about a sweeping ban on “fake news,” the plan focuses on one specific variety of disinformation: namely, the kind that tries to mislead voters about when or where to vote. Warren said she would “push for new laws that impose tough civil and criminal penalties for knowingly disseminating this kind of information, which has the explicit purpose of undermining the basic right to vote.” Separately, Twitter announced a new tool that will allow users to report tweets that they suspect are being used to try to deceive people about voting-related information.

The Guardian newspaper says it will no longer accept advertising from oil and gas companies. “Our decision is based on the decades-long efforts by many in that industry to prevent meaningful climate action by governments around the world,” the company’s acting chief executive, Anna Bateson, and chief revenue officer, Hamish Nicklin, said in a joint statement. They said the response to global heating was the “most important challenge of our times” and highlighted the Guardian’s own reporting on how lobbying by energy companies has explicitly harmed the environmental cause.

New York Times columnist Farhad Manjoo says he’s more worried about the panic and other behavior surrounding the coronavirus than he is about the virus itself. “What worries me more than the new disease is that fear of a vague and terrifying new illness might spiral into panic, and that it might be used to justify unnecessarily severe limits on movement and on civil liberties, especially of racial and religious minorities around the world,” he writes. “I also worry that in the event of an actual pandemic a large number of people may delay treatment or refuse vaccines because they don’t believe the science or are suspicious of the government.”

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