Facebook has equipped itself with a supreme court, the "Content Oversight Board". On the judges' bench, presented at the beginning of May, are to be found illustrious personalities: the Former Danish prime minister Helle Thorning-Schmidt, the former Editor-in-Chief of The Guardian Alan Rusbridger, who was responsible for Snowden and the NSA story, the constitutional lawyer Jamal Greene of Columbia University and the Nobel Peace Prize winner Tawakkol Karman from Yemen.

Just like a supreme court, this Board is to act as a court of final instance. Anyone who feels they have been "unfairly treated" by the Facebook content moderators or its artificial intelligence, perhaps because content presumed permissible has been deleted, or that presumed impermissible has not, can lodge a complaint. It is therefore about the cases difficult to decide in the grey, or rather, coloured areas of freedom of expression. Those cases for which there are no easy solutions as they are borderline: on the boundaries of good taste, satire, artistic and religious freedom, societal taboos.

The setting up of the new board can be evaluated positively for now. Facebook appears at last to be addressing its critics. The latter have been reproaching the social network with avoiding its social responsibilities for years. Whenever things get uncomfortable, Facebook hides behind "only" being a technology platform. Facebook is said neither to offer its users effective protection against hate and malice, nor does it adequately protect the exertion of the human right to freedom of expression against the globally increasing threat to the same.  

In autumn 2016, Facebook removed a world-famous iconic war photograph from the pages of Norwegian journalists and politicians multiple times. The photograph with the title "The Terror of War" shows the nine-year-old girl Phan Thi Kim Phúc. With mouth wide open in terror, together with other children she is fleeing from a napalm attack – naked. Facebook had evaluated this document of contemporary history from the Vietnam War as inappropriate due to the child’s nakedness. At first, the enraged critics of this decision were unable to reach the network. It was only after an open letter from the Editor-in-Chief of the largest Norwegian newspaper, Aftenposten, to Zuckerberg - "Listen, Mark, this is serious!" - that Facebook lifted this absurd censorship. Sensitivity vis-à-vis history, the cultural legacy of humankind, freedom of opinion and artistic expression is something else.

The new Supreme Court is supposed to be an antithesis to such cultural flattening. Its composition thus far made public reads as almost too perfect to be true: a fellowship of the cosmopolitan, the practical, intellectuals, those of different political leanings (a left-liberal editor meets a judge appointed to the Supreme Court by George W. Bush), and a Muslim woman in a headscarf, who has won the Nobel Peace. Facebook proudly announces that the twenty members of the Board announced thus far have lived in more than 27 countries and speak more than 29 languages between them.

Look here, Facebook has finally grown up!

Facebook's success story started as a piece of fun: on a whim, the Harvard student Zuckerberg hacked into the website of a student hall of residence in 2003. There he stole profile photographs of female students and put these online, without the consent of those concerned, so that fellow male students could vote on who was better looking: "Hot or not," was the name of the prank.  

This website, facemash.com, was the prelude to Facebook. And not, as Zuckerberg likes to maintain these days, the desire of worried young people to link up with kindred spirits around the world in their concern about the Iraq war. Here something becomes clear, what Facebook and Zuckerberg are often accused of: that they bend the truth to suit themselves and that the company values asserted to the outside world are nothing more than cosmetic PR accessories.

The games continued. Facebook grew and grew, since 2008 the daily user numbers have been growing exponentially. And, without Facebook having to do anything at all for it, the Arab Spring presented it with an emancipatory visage.

Facebook itself had always remained apolitical, always that globally active company with the childish attitude of an IT nerd who only wants to play and would really rather never grow up. One can read the PR good fortune of the "Facebook Revolution" as a kind of reversal of the sentence "Kill the messenger": the medium was celebrated for the message it communicated. If the youth in the Arab World had arranged to fight on behalf of more democracy via fax, it would have then been called the "Fax Revolution".

Facebook is like Goethe's sorcerer’s apprentice: restless, clueless, overstretched

From 2015 Facebook lost control over its own success. It had become too big and too successful – and at the same time too naïve in dealing with its own power. This was evident in the 2016 elections in Russia and the USA. In the Cambridge Analytica scandal. During the Rohingya crisis in Myanmar, in which Facebook – unintentionally but, at the same time, predictably – became the accelerant of a genocide. There was also the brutal hounding of the Muslims in Sri Lanka at the beginning of 2018: inconceivable without Facebook. Since 2015 the network has been coming across like Goethe's sorcerer's apprentice: restless, clueless, and overstretched. Anyone interested in an overview of the many variations of "I’m sorry" as performed by Zuckerberg expressing regret in the last fourteen years: this way! 

It must soon have become evident to Zuckerberg that "I’m sorry" would no longer be good enough to avert economic damage from Facebook. Democracies like Germany passed laws such as the Network Enforcement Act (Netzwerkdurchsetzungsgesetz/NetzDG). It obliged social networks such as Facebook for the first time to designate (something absolutely axiomatic such as) an authorized recipient in Germany. Under threat of substantial fines, it obliges the social networks to promptly delete clearly illegal content. The NetzDG found enthusiastic copycats amongst autocratic regimes worldwide: under the pretext of combating hate and rabble-rousing in the internet, they passed similar statutes, shamelessly exploiting these to combat the freedom of the press and freedom of opinion.

Facebook recognised that it would not be able to avoid some kind of normative order. Otherwise, its global business model would soon be threatened by a patchwork quilt of barely overviewable national regulations. On the other hand, the international community of nations had – and has – a long way to go to reach international regulatory initiatives. Other subjects come further up the agenda.  

For Zuckerberg it always has to be something really big

Facebook would not be Facebook if, with the establishment of the Oversight Board, it were not pursuing a vision extending beyond Facebook itself. This was what had already been the case with the – extremely broad-based – introduction of the Libra as a global currency, which then however did not succeed in establishing itself fully. As Zuckerberg sees it, his concept for the first social media court is to be nothing less than the blueprint for any social media jurisdiction in the future.

Initially, after the announcement of the first twenty members of the board, the company received much praise. At the onset of the coronavirus crisis, Facebook had cut a good figure. Although the company did indeed record the losses in advertising revenue to be anticipated, nevertheless the number of users increased during lockdown. Furthermore, the company was praised for initiatives such as the establishing of a task force that contacted users who had "liked" a false news story. At the start of the pandemic, people just came together under the great leveller, coronavirus. The embittered conflicts of yesterday seemed to be forgotten for a few weeks in view of the common invisible enemy. Such allegedly unideological times had always been good for Facebook.

Then came the killing of George Floyd. At a time when the first coronavirus wave was ebbing in the western world, the gruesome video of the killing of Floyd spread to the world on Facebook by a 17-year-old made clear that all those hurts and troubles had not been deleted by the pandemic but had only been pushed into the background; the social injustice and institutional racism (not only, but above all, in the USA), the erratic and divisive appearance of Trump at home and abroad, a China growing in self-confidence, whose blatant propaganda and mask diplomacy then seemed to be reaping success. A Europe plagued by self-doubt and occupied with itself, lacking the confidence yet to assume the leadership of the free world.

Opportunism inconsistent with demonstrations of values

In this crisis Facebook could have shown that it was really serious about the values being asserted in connection with the establishing of the Oversight Board. Unfortunately, the crass opposite was the case: at a time when the USA was afflicted with what were probably the worst protests since the assassination of Martin Luther King, Facebook once again shied away from assuming the social responsibility commensurate with its size and significance. Whilst the Twitter text messaging service was embedding Donald Trump’s  inflammatory and knowingly national trauma-triggering tweets ("when the looting starts, the shooting starts") in an editorial comment and deleting consciously false statements, Zuckerberg openly stabbed Twitter in the back: "I don’t believe that Facebook, or another internet platform, should set itself up as the arbiter of truth," he opined on 28 May 2020. 

This opportunism is inconsistent with all those worthy declarations of values Facebook had been making since the introduction of the Oversight Board. It led to a crisis of confidence and public protests unique in the history of Facebook by high-ranking Facebook managers: "Mark is wrong and I will endeavour in the loudest possible way to change his mind," wrote Ryan Freitas for instance, Facebook's Director of Product Design, not, by the way, on Facebook – but on Twitter.

In actual fact, the entire "legal framework" on which the new Oversight Board is based, does not hold up to critical examination. It is like the beautiful backdrop to a Hollywood film that collapses as soon as one leans against it with only half of one’s own bodyweight.

The "Basis of Decision-Making", as depicted in the authoritative charter for Facebook’s supreme courts are "The values of Facebook”. What we know about these values is that they are entwined around the four concepts of authenticity, safety, private life and dignity. However, much more than that we do not know about them.

We cannot look them up in the libraries of this world to find out more about them like we can with article 19 of the United Nation’s General Declaration of Human Rights, with article 10 of the European Human Rights Convention, the First Amendment of the US Bill of Rights and article 5 of Germany's constitution. These are concepts that read well and do not offend anyone. Neither the democrats nor the dictator. You would not be surprised to read them in the prospectus of a care home for the elderly.

In September 2019, for the first time these general values were placed in a context associating them with the precious asset of the freedom of expression. This precious asset, Facebook shies away from the grand expression "Freedom of Speech", probably so as not to annoy autocrats, is simply called "voice" in Zuckerberg’s legal framework. 

"The Voice" as synonym for freedom of opinion?

Monika Bickert, today Head of Global Policy Management, writes that maintaining this voice of every user in its distinctiveness is the overarching aim of Facebook’s new value system. In order to protect authenticity (in the sense of the genuineness of the users), safety, private life and (human?) dignity, this voice may, on an individual case basis and after consideration of the values affected, be restricted she states. And, this mention is a first: in making this decision "we look to" international legal and human rights standards. Just looking, one could say, is not enough. A commitment is not being asserted here.

The consideration, now "discovered" by Facebook, of "the Voice" with concerns such as safety or dignity is, of course, likewise not new. It is applied worldwide on a daily basis in international and national law, though refined by the so-called proportionality test. About this on Facebook one finds: nothing. If this company were serious about the precious asset of the freedom of speech, then it would seek to close ranks with international law instead of cobbling together its own cheap Facebook legal framework. 

And that the power of Facebook would be restricted through the creation of the Facebook Oversight Board, is doubtful to say the least. It is probably both true and false at one and the same time, and probably, possibly for that very reason, so successful as a narrative. They say the best way to lie is with the truth.

What is true: the personal power of Mark Zuckerberg is being restricted. He cannot dictate to the Board how to do its job. He cannot contest the Board’s decisions and fire the members of the Board. A company and financing structure financially independent of Facebook Inc. has actually been established for this court.

However: Zuckerberg the person is not much more than the face of Facebook, some say: its guru. How much power Zuckerberg personally (still) has in the concern, is of secondary concern when assessing the (excessive) power of Facebook. Anyone solely focussing on Zuckerberg’s loss of power, has fallen for the PR trick.

Like appointing VW as the German Federal Office for Motor Transport

Viewed objectively, with the establishment of the Oversight Board Facebook is probably expanding its power: it does not matter how financially and organisationally independent this "court" may have been conceived: it decides, and does so in the most sensitive area of basic civil rights: human dignity, freedom of expression, press and artistic freedom in line with the concern’s own rules, which do not have any democratic legitimacy. Here a stinking rich quasi-monopolist, a teenager only sixteen years old, is setting himself up in the area of the freedom of expression to take on the traditional duties of both the legislature and judiciary – at a global level. This is almost as sensible as if one were to permit the Volkswagen concern after the emissions scandal to issue emission guidelines worldwide and, at the same time, to act as the Federal Office for Motor Transport in Germany. 

Facebook is also issuing no information about the criteria it used to select the judges of the Oversight Board. Nor are there fundamental control mechanisms in place, such as envisaged by procedural law: the right to a statutory – namely, impartial, “randomly” selected, pre-determined in the business allocation plan - judge. Or the right, to contest the Board’s line-up if there are concerns about the impartiality of the judge(s).  

And: the rules, according to which this court operates, can be amended by Facebook at any time. One looks in vain, however, for an "eternity clause" as envisaged by the Basic Law for the core statement of our constitution, art. 79 paragraph 3 Basic Law, the Right of Resistance, the Rule of Law, in these company rules. If the rules regarding the basic right of the freedom expression in the State of Facebook are so cursory: what does it benefit this court to be financially independent? 

Not even the number of members of this "court" is laid down in writing.

On this in the Oversight Board’s charter it states:

The board will consist of at least eleven members. When it has reached its full capacity, it will provisionally consist of forty members. The size of the Board can vary up or down in line with requirements.

"At least"

"Provisionally"

"In line with requirements"

Vague wordings such as these would be ripped apart by any, ever so toothless, constitutional court in the world due to intolerable vagueness.

The attempt to stop an ocean by hand

Whether this Board – provisionally and in line with requirements - (who foresees and who defines the requirements here?) consists of eleven or forty members, makes a fundamental difference with regard to the legitimisation of this "court". Even the currently –provisionally and in line with requirements – maximum number envisaged of forty judges will not make it possible to single out significant precedent cases from the opinions expressed by, as of 30 April 2020, 1.9 billion active Facebook users, which will shape the future direction of the social media governance of the quasi-monopolist. This is tantamount to a vain attempt "to push back the ocean with just one hand", opines the editor-at-large for the Recode technology blog, Kara Swisher, in the New York Times.

The supposed striving for a heterogenous composition of the judicial bench does not hold up to a critical examination either: two of the four Chairs, hence 50 percent, come from the USA. Five out of the twenty members of the Oversight Board known so far come from the USA, that is, 25 percent.

China is pleased

Six of the top 10 countries with the most Facebook users worldwide come from South, or South-East, Asia, with 280 million Facebook users in India alone. Nevertheless, only ten percent of the current members of the Board are from South, or South-East Asia, namely two: the lawyer and internet-activist Nighat Dad from Pakistan and a journalist called Endy Bayuni from The Jakarta Post. There would have been much more uncomfortable candidates available. Female candidates. Typically: there is not one single "judge" included from Taiwan, Japan or South Korea – all of them rays of hope for democracy in times, in which the Chinese model of "freedom of expression" is spreading over the globe in parallel with the Silk Road initiatives. A wonderful gateway for Chinese propaganda. Like an armada of busy bees it is working to convince the Asian world of the Chinese understanding of the "freedom of expression", of Weibo for example, which is alleged to be interested in consensus, inclusion and harmony – an antithesis to the loudness, egocentrism and arrogance of which China accuses the West.

One should therefore not be surprised if Asia does not accept this Board. And yet regulation is just what is specifically required in Asia: hardly any region is as heterogeneous in all areas that provide dynamite with regard to freedom of expression: world view, ethnicity, religion, political systems. In no region are hate and hoaxes, bots and trolls as prevalent as they are here. In hardly any other region of the world is the word "Facebook" used by so many people as a synonym for the word "internet".

Mark Zuckerberg can be proud of what he, at just 36 years old, has achieved with Facebook. And he certainly would not have achieved all this if he had allowed himself to be restricted by notorious sceptics and would not have led the company with the lightness and ease of a start-up. It is, however, time to finally grow up and to launch a project of real historical significance for our common good: the regulation of the internet and social networks through human rights and international law. The money, power and necessity for this mammoth project are there. Dear Mark Zuckerberg, why are you still waiting?   

This text is a translation. It has been first published 18 June 2020 in German, https://www.heise.de/tp/features/Facebook-Hohles-Gericht-4787220.html