The Facebook Oversight Board’s Human Rights Future
Laurence R. Helfer* & Molly K. Land**
In the Fall of 2020, Facebook (now Meta) established a new oversight mechanism to review its content moderation decisions—the Facebook Oversight Board (FOB). The company created this body following widespread criticism for mishandling hate speech and misinformation, including its role in election interference in the United States and genocide in Myanmar. Facebook sets global rules from its headquarters in Silicon Valley, but the impact of these rules are felt by internet users and civil society worldwide, especially in the Global South.
The FOB was intended to provide an independent check on the platform’s most challenging speech regulation decisions. However, the Board is unlikely to succeed in holding Facebook accountable to its users. Although it was created after a lengthy consultation process, the Board will hear at most a handful of cases each year. And its jurisdiction is limited to reviewing Facebook’s decisions to remove or allow individual posts. The FOB can evaluate Facebook’s content moderation policies, but its recommendations on these issues are only advisory.
We argue that despite these limitations, the Board will be able to make a significant contribution by developing the human rights norms that apply to social media platforms. Although it has been compared to a variety of review bodies, the FOB is most closely analogized to an international human rights tribunal. Drawing on the extensive experience of these tribunals, we argue that the Board should develop soft law regarding the human rights responsibilities of private social media companies. We analyze the Board’s caselaw to identify the contributions it has already made in this effort, and we argue that such norms may over time acquire additional force through integration into national and supranational initiatives to regulate internet platforms.
Laurence R. Helfer is Harry R. Chadwick, Sr. Professor of Law and co-director of the Center for International and Comparative Law at Duke University. He also serves as a Permanent Visiting Professor at the iCourts: Center of Excellence for International Courts at the University of Copenhagen, which awarded him an honorary doctorate in 2014.
Helfer has authored more than 100 scholarly publications, including four coauthored books, two edited volumes, and numerous articles in peer review law and political science journals. He has lectured widely on his diverse research interests, which include international law and institutions, human rights (including LGBT rights), and international adjudication and dispute settlement.
Helfer was nominated by the United States and elected as a member of the UN Human Rights Committee for 2023 to 2026. He recently completed a four-year term as co-Editor-in-Chief of the American Journal of International Law.