Let’s get something straight - Oversight Board is not any kind of Supreme Court; it’s a PR gambit on the part of Facebook to help it look as though it takes its responsibilities seriously without having to actually do anything much that means it’s taking its responsibilities seriously.
Another thing to remind ourselves of is that it’s a private company - Oversight Board LLC - and one that’s owned by another private company. And it’s Oversight Board, as befits a company, not The Oversight Board, which frankly anoints it with a presumed authority that it struggles to merit.
The reason for keeping this in mind relates to the hoo-hah and general puffed-up over-reaction that’s stemmed from both sides of the political aisle following Oversight Board’s ruling last week that Facebook was justified in banning Donald Trump from the platform following the insurrectionary assault on the Capitol in Washington.
But Oversight Board also criticised its parent company for not being definitive enough about the terms of exile and how long the ex-President has to remain cast adrift on his social media Isle of Elba, with our erstwhile apprentice Napoleon left to fill his days with rounds of golf and gatecrashing unsuspecting wedding receptions at Mar-a-lago, instead of hurling abuse around the Internet and plugging the latest effluvium expelled by sundry Fox News fellow travellers.
Oversight Board said:
In applying a vague, standardless penalty and then referring this case to the board to resolve, Facebook seeks to avoid its responsibilities. The board declines Facebook’s request and insists that Facebook apply and justify a defined penalty.
Bad news for Facebook? Not remotely. Oversight Board just kicked any real need for action down the road six months (at least) and gives Facebook’s Apologist-in-Chief Nick Clegg some breathing space to work out what the next holding position will be.
A position of keeping every option open may be one that doubtless appeals to a former politician whose, shall we say, ‘flexible’ approach when it came to firm political convictions and pledges is well understood by the UK’s student population. But the lack of resolution in Oversight Board’s position has infuriated, well, just about everybody else. Unlikes all round.
For the Democrats, Senator Elizabeth Warren, a long term nemesis of Facebook, rages:
The issue is that we now have this corporation that is so giant, that is so powerful, it even names its review board the Supreme Court…This means we’ve got a corporation more powerful than government.
Across the aisle, Republican Senator Ted Cruz complains that the decision was “disgraceful” and calls Facebook’s banning of Trump a slippery slope, asking, "What’s to stop them from silencing you?”
Actually, Ted, I’d ask much the same question - what is stopping them? A few months peace and quiet from your direction would be very welcome…
Meanwhile the self-proclaimed ‘Real Facebook Oversight Board’, a group of prominent Facebook critics that includes UK Member of Parliament Damian Collins and NAACP president Derrick Johnson, correctly calls out Oversight Board’s decision as an blatant attempt to have it both ways:
The Facebook Oversight Board has been touted as Facebook’s “Supreme Court,” and a grand experiment in online content moderation. This muddled ruling, however, reveals the Oversight Board as an empty suit - an obvious case, referred by Facebook to an entity they paid for, which took nearly four months to reach a partial ruling that does nothing to fundamentally challenge Facebook’s business model or approach to content.
It should also be noted that Facebook, despite setting up Oversight Board as part of its ongoing mea culpa movement, did not feel to need to co-operate fully with its own supervisory spawn to aid its decision-making. Oversight Board asked the firm some 46 questions in relation to various matters, seven of which Facebook declined to answer. These included some pretty fundamental points, such as how Facebook’s news feed impacted the visibility of Trump and information about the suspension of other political figures.
More of the same
Facebook now faces even more criticism. Plus ca change etc. On the Right, open threats are now being made about ‘the reckoning’ there will be if the Republicans take back the House and the Senate at the mid-terms, in the process shaping a bastardized political expediency whereby otherwise rabid free market advocates openly call for state intervention in the activities of privately-held Big Tech firms unless they toe the party line. That’s incredibly dangerous.
Bottom line on this remains that Facebook is a private company. It’s not a town square where everyone has a right climb on a soap box and shout their opinions to the passing public. (And no, there’s no God-given right to access to Facebook in the Constitution.)
Nor is Facebook a conventional broadcaster bound by impartiality rules. It’s entitled to air - or not to air - views from whoever it likes, just like Fox News or OAN do every day and night.
You can certainly make a case that that’s not how it should be and that Facebook should have been officially re-categorized as a publisher years ago, but that’s not the reality in which we’re living. There is a desperate need for sensible regulation to take place - and on a global scale - and that’s something that the Biden administration needs to engage with, at home and abroad.
But for now, Facebook is a private company and can allow or refuse access to its services to whomsoever it chooses. Personally I think Trump more than deserved to be banned for his incendiary comments in January and there’s no reason to allow him a platform for continued unchallenged lies about stolen elections. There are cable TV channels where he and his hangers-on can indulge themselves in that sort of thing. He’s hardly being silenced! What function do Tucker Carlson and Sean Hannitty serve otherwise?
That said, I’m conscious that this is a can of worms. One person is banned, but others are not, including people and organizations that are equally open to criticism. That’s a circle that is going to be incredibly hard to square in a truly balanced and fair way. That doesn’t mean we shouldn’t try - and equally it doesn’t mean that all comments should get a free pass until we do.
As for Facebook’s Clegg and Co, another week, another controversy, another time for ‘lessons learned’ and now move on. It was striking during Facebook’s most recent quarterly analyst call to note that although such calls had of late seen Mark Zuckerberg proactively offer commentary on regulatory issues - ‘Regulate me, regulate me!’ - this time around there was no mention made until well into the post-presentation Q&A. Even then, it was a vague sort of question that was easily batted back by Zuck.
But then when you’ve crushed your Q1 revenue estimates, bolstered your user numbers and are within staggering distance of a trillion dollar valuation, who cares about regulatory reform? Not Wall Street, that’s for certain. And sadly not Oversight Board, it seems.
We need some serious and considered regulatory progress to be made, not just on Facebook, but all social media platforms. It’s a very complex issue and will take a lot of time to process to end up with an appropriate and balanced approach.
Failing that, our only recourse may be to draft in Judge Judy to bang her gavel and get this sorted once and for all!