Facebook’s Oversight Board says Trump ban was appropriate

But says that the indefinite suspension was outside of Facebook's power.

Still image of Facebook's Oversight Board logo (Oversight Board)

The Oversight Board, Facebook's so-called supreme court for deciding issues around moderation policy, has decided to offer qualified support for the suspension handed down to former US president Donald Trump. In a statement, the Board said that it was "justified" to restrict access to his account, but that the "indeterminate and standardless penalty" was not. In short, while Facebook acted properly in the short-term, it cannot simply decide to permanently ban a user without a policy explaining why.

In its findings, the Board said that the "indefinite" suspension was not appropriate because it's not permissible for Facebook to hand out arbitrary bans. Because Facebook has no defined policies and procedure in this area, and indefinite suspensions are not outlined in the company's policies, the Board has called on Facebook to "review this matter" and "justify a proportionate response that is consistent" with the company's rules. It added that Facebook had a responsibility to "create necessary and proportionate penalties" to deal with severe violations of its rules.

On January 6th, 2021, a group of protestors stormed the United States Capitol Building with the reported intention of halting the certification of the 2020 General Election. Trump had, earlier that day, made a speech implying that VP Mike Pence should “do the right thing” by halting the certification. He added that protestors should “fight like hell,” or “you’re not going to have a country anymore.” Not long after, officials would be escorted from the Capitol Building as rioters breached the perimeter, with five people dying in the process. Trump would subsequently post messages that denounced the violence but maintained a position that the certification was invalid.

On January 7th, Facebook and Instagram, as well as a number of other social media outlets, imposed restrictions on the (then) president. The justification was that Trump’s postings could be seen as encouragement for further violence, leading to the temporary ban. Shortly afterward, CEO Mark Zuckerberg wrote that “Trump intends to use his remaining time in office to undermine the peaceful and lawful transition of power to his elected successor.” He added that the ban on accessing his Facebook and Instagram pages would last “indefinitely and at least the next two weeks under the peaceful transition of power is complete.”

On January 8th, Twitter announced that it would permanently suspend Donald Trump's personal Twitter account "due to the risk of further incitement of violence." The suspension was a watershed, given the number of exceptions that were carved out by multiple platforms beforehand. In the run-up to the 2016 election, and during the presidency, Facebook created an exemption for content that would otherwise violate its acceptable use policies. CEO Mark Zuckerberg said that he didn’t want to be an arbiter of truth, and said that content deemed “newsworthy” would remain online. In mid-2020, the company amended its policy, saying that it would "label" content that violated its policy rather than remove it — although it did remove a Trump post from mid-2020 under the aegis of stamping out COVID-19 misinformation.

On January 21st, Facebook referred the case, number 2020-001-FB-FBR to the Oversight Board both to rule on the suspension, and also to offer “policy recommendations from the Board on suspensions where the user is a political leader.” Specifically, Facebook submitted the following two questions:

  1. Considering Facebook's values, specifically its commitment to voice and safety, did it correctly decide on January 7, 2021, to prohibit Donald J. Trump's access to posting content on Facebook and Instagram for an indefinite amount of time?

  2. In addition to the board's determination on whether to uphold or overturn the indefinite suspension, Facebook welcomes observations or recommendations from the Board about suspensions when the user is a political leader.

The Oversight Board said that a five-person panel would investigate and decide on the matter, and that decision was subsequently ratified by a majority of members. Facebook, at the time, said that it would abide by the decision, and is bound to implement the decision within seven days. Trump has, in the meantime, developed his own platform as an extension of his own website, which he can publish to without fear of moderation.

The Board had, initially, committed to making its decision within 90 days of the referral, which put the deadline at April 21st. On April 16th, however, it said that it would need to delay the judgment in order to review “all comments” made on the case, since it received 9,666 through the consultation period. On Monday, May 3rd, it announced that the decision would be published at 9am ET on May 5th.

In its judgment, the Board said that it agreed that the posts Trump made in the aftermath of the Capitol Riot "severely violated" Facebook's community standards. It said that Trump's remarks praising the rioters "violated Facebook's rules prohibiting praise or support of people engaged in violence." It added that by baselessly perpetuating the claim that the election's results were fraudulent, "Mr. Trump created an environment where a serious risk of violence was possible."

Facebook’s detractors have said that whatever the Oversight Board decides, the whole affair has been a public-relations move. The Real Oversight Board, a group that represents several of the social network’s critics, said that the ruling was a “smokescreen.” In a statement, published Monday, it said that the board is a “Facebook-paid, Facebook-appointed body created by Facebook to use to launder its most politically sensitive decisions.” It added that “Trump has violated Facebook’s terms of service repeatedly, incited hate, spread disinformation, fomented violence and been used as a model for other authoritarian leaders to abuse Facebook. He should be banned forever.”

In the wake of the decision, the Real Oversight Board asked "what is the point of the Oversight Board?" It added that today's announcement is a "desperate attempt to have it both ways, upholding the 'ban' of Donald Trump without actually banning him, while punting any real decisions back to Facebook."

The Oversight Board seems to agree on that point, saying that "In applying a vague, standardless penalty and then referring this case to the Board to resolve, Facebook seeks to avoid its responsibilities." It added that it "declines Facebook's request and insists that Facebook apply and justify a defined penalty." It has given the social network six months to conduct a review of its actions in this matter and the gaps in its policies. In addition, the Board recommends that political speech needs to be moderated by "specialized staff who are familiar with the linguistic and political context" who are both properly resourced and protected from political, economic and internal interference.

Interestingly, as well as criticizing Facebook's conduct in this affair, the Board also said that Facebook's exceptions made toward notable individuals may not be helpful. In the judgment, it said "It is not always useful to draw a firm distinction between political leaders and other influential users, recognizing that other users with large audiences can also contribute to serious risks of harm." It added that Facebook needed to "address widespread confusion about how decisions relating to influential users are made."

The Oversight Board has also called for Facebook to conduct a "comprehensive review" of its contribution to the narrative of electoral fraud. "This should be an open reflection on the design and policy choices that Facebook has made that may allow its platform to be abused."

Sir Nick Clegg, Facebook's VP of Global Affairs, has already penned a response saying that Facebook is "pleased the board has recognized that the unprecedented circumstances justified the exceptional measure we took." He added that Facebook will now consider the Board's criticism concerning the seemingly arbitrary nature of the penalty, and will "carefully review [the Board's] recommendations."

It is now on Facebook to determine the best course of action, and if it will eventually restore Donald Trump's access.

Update May 5th, 11:40am ET: Donald Trump has made a statement saying that Facebook's actions are a "total disgrace and an embarrassment to our country." He added that "Free speech has been taken away from the President of the United States because the radical left lunatics are afraid of the truth." The statement ends by saying that "corrupt social media companies must pay a political price."