Here Are the First 6 Cases Before Facebook's 'Toothless' Supreme Court

Facebook’s independent Oversight Board announced the first six cases its members will assess Tuesday, but critics have already blasted the selection as “toothless,” pointing out that it is avoiding high-profile cases, such as the possible suspension of former White House senior adviser Steve Bannon.

Facebook announced the creation of its Oversight Board last September, promising it would be an independent body to hold the company accountable for the decisions it makes about content moderation. 

But the group has been slow to act and was harshly criticized for failing to meet prior to the highly contentious U.S. election. Only now is the group announcing its first set of six cases, which will be heard by members of the board over the next three months. They include five cases submitted by users who complained that Facebook took down their posts incorrectly, and one case referred by Facebook itself.

The cases cover a range of topics, including a user in Brazil who claimed an Instagram post about breast cancer should not have been removed even though it shows female nipples, something Facebook has a long history of banning.

There are several cases questioning Facebook’s use of its hate speech policy, including a case involving a user posting screenshots of tweets by former Malaysian Prime Minister, Mahathir Mohamad, in which he stated that "Muslims have a right to be angry and kill millions of French people for the massacres of the past." The user said the post was only designed to raise awareness of the former Prime Minister's “horrible words.”

The one case Facebook itself referred to the Board relates to “the challenges faced when addressing the risk of offline harm that can be caused by misinformation about the COVID-19 pandemic.”

The six cases were picked from more than 20,000 submissions made by users of the platform. They will each be assessed by panels made up of five members of the Oversight Board, with decisions due within 90 days. Facebook has pledged to be bound by whatever recommendations the Board makes.

But critics believe that the Oversight Board’s list of cases lacks any real bite, pointing out that it is not designed to tackle the most pressing issues facing the platform.  

“The Facebook Oversight Board is a toothless body, with too many loopholes to address the massive harms on the site,” said Roger McNamee, an early investor in Facebook said in an emailed statement. 

McNamee is also a founding member of the Real Facebook Oversight Board (RFOB), an external group established in September by high profile critics of the platform who felt the company’s own efforts at holding itself to account were inadequate.

In a press release issued to coincide with the release of the Oversight Board’s announcement, the RFOB said it would be holding its own hearings into what it believes are the three most pressing issues facing Facebook today.

Top of the list is the case of Steve Bannon, who last month posted a video on Facebook Live urging people to behead FBI Director Christopher Wray and government infectious diseases expert Dr. Anthony Fauci.

Facebook CEO Mark Zuckerberg last month told employees that Bannon’s comments “didn’t cross the line” pointing out that it would take multiple indiscretions before Bannon’s account was banned. And because Facebook’s own Oversight Board only hears appeals of existing takedowns, Bannon’s case was ineligible. 

The RFOB will hold a hearing into Bannon in early December that will be presented by lawyers. The case will then be presented to Facebook for comment and review.

The RFOB also flagged two other cases that they believe should be urgently assessed. 

The first is the case of Vietnamese activists whose accounts were removed by Facebook at the request of the Vietnamese government for posting anti-state content. Amnesty International on Tuesday published a damning report showing how Facebook and Google have become complicit in Vietnam’s efforts to jail citizens for online activism.

Facebook’s own Oversight Board is specifically excluded from hearing cases subject to national laws. 

The final case the RFOB flagged is a case against a Facebook group called the “Arcturian Pleiadian Starseed Community” that has over 50,000 members and is actively promoting COVID-19 misinformation. 

Facebook hasn’t labeled any of the posts in this group — which include claims that a coronavirus vaccine permanently alters DNA using experimental technology — as misleading content. 

Cases against groups are excluded under the Oversight Board's terms.

“Our initial docket shows the inadequacy of the oversight board, and spotlights three urgent cases that would never be heard by Facebook,” McNamee said.

“Our goal is a democratically accountable Facebook,” an RFOB spokesperson said. “There is so much content causing so much harm on the site right now but none of this is eligible to be reviewed by the board. We have established a shadow governance process to hear the cases that Facebook simply will not allow their own Oversight Board to adjudicate.”