Hostname: page-component-78c5997874-s2hrs Total loading time: 0 Render date: 2024-10-30T15:58:59.709Z Has data issue: false hasContentIssue false

Meta’s Oversight Board and Transnational Hybrid Adjudication—What Consequences for International Law?

Published online by Cambridge University Press:  22 May 2023

Rishi Gulati*
Affiliation:
University of East Anglia, Norwich, United Kingdom

Abstract

Meta, formerly the Facebook Company, faces immense pressure from users, governments, and civil society to act transparently and with accountability. Responding to such calls, in 2018, it announced plans to create an independent oversight body to review content decisions. Such a forum is now in place in the form of the Oversight Board. To Meta’s credit, the speed at which the Oversight Board has been established is remarkable. Within two years, a global consultation process was completed with input obtained from users as well as experts, the regulatory infrastructure for the Oversight Board built, its members selected, and the first decisions of the Board already rendered in January 2021. With its institutional structure in place, and plenty of resources to tap into, the Oversight Board could have a real effect on how some transnational disputes are resolved. Thus, the Oversight Board may very well be setting the direction for how tech companies in particular, and multinational corporations in general, go about providing grievance mechanisms to individuals who their actions adversely affect. Through a study of the Oversight Board, this article considers whether we are witnessing the birth of a special type of “transnational hybrid adjudication” that could have a systemic impact on international law, or an experiment with limited relevance.

Type
Article
Creative Commons
Creative Common License - CCCreative Common License - BY
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
Copyright
© The Author(s), 2023. Published by Cambridge University Press on behalf of the German Law Journal

A. Introduction

Meta, formerly the Facebook Company,Footnote 1 is a private enterprise that has been worth more than 1 trillion U.S. dollars.Footnote 2 Meta’s Facebook App (“Facebook”) is the world’s dominant social media platform which has more than 2 billion global users.Footnote 3 Facebook is the public square where people around the world exchange ideas. And in many countries, Facebook constitutes the principal source of news and information.Footnote 4 Meta, through its applications, exercises extraordinary power over individuals in the digital world. It is the most powerful arbiter of online speech,Footnote 5 with such power not always being exercised conscientiously. As has been well reported, accusations of differential treatment favoring the rich and famous,Footnote 6 indifference to harm caused to young adults,Footnote 7 and its role in spreading and amplifying fake newsFootnote 8 are just some prominent scandals Meta has been confronted with. Tellingly, the award of the 2021 Nobel Peace Prize to journalist Maria Ressa shown a light on Facebook’s failings, with Ressa saying that Facebook’s algorithms “prioritize the spread of lies laced with anger and hate over facts.”Footnote 9

It is hardly surprising that Meta faces immense pressure from users, governments, and civil society to act transparently and with accountability. Responding to such calls, in 2018, it announced plans to create an independent oversight body to review content decisions.Footnote 10 Such a forum is now in place in the form of the Oversight Board.Footnote 11 Meta states that the “Oversight Board was created to help Facebook answer some of the most difficult questions around freedom of expression online: what to take down, what to leave up and why.”Footnote 12 This is a far cry from the infrastructure present at Facebook in its early days where content moderation was done according to a general platform ethos of “if it makes you feel bad in your gut, then go ahead and take it down.”Footnote 13

To Meta’s credit, the speed at which the Oversight Board has been established is remarkable. Within two years, a global consultation process was completed with input obtained from users as well as experts, the regulatory infrastructure for the Oversight Board built, its members selected, and the first decisions of the Board already rendered in January 2021.Footnote 14 With its institutional structure in place, and plenty of resources to tap into,Footnote 15 the Oversight Board could have a real effect on how some transnational disputes are resolved. The Oversight Board may very well be setting the direction for how tech companies in particular, and multinational corporations in general, go about providing grievance mechanisms to individuals who their actions adversely affect.

Through a case study of the Oversight Board, this article considers whether we are witnessing the birth of a special type of “transnational hybrid adjudication.” The article commences by clarifying what is meant by the phrase “transnational hybrid adjudication” (B). Using the example of the Oversight Board, I consider whether it can properly be characterized as a transnational adjudicative body that joins the myriad of other international dispute resolution mechanisms that exist today (C). Giving an affirmative answer to that question, it is finally considered whether the Oversight Board is a new type of adjudicative mechanism that could have a systemic effect on international law, or an experiment with limited relevance (D).

B. Transnational Hybrid Adjudication

Clarifying at the outset what is meant by the phrase “transnational hybrid adjudication” is important for it is the lens through which the Oversight Board is assessed. First, focus is on the word adjudication. Fundamentally, adjudication is a method of resolving legal disputes by referring them to an independent third party for binding decision based on articulated standards evidenced through a reasoned decision.Footnote 16 Thus, there are four aspects to adjudication: The dispute must be of a legal character, the third party charged with deciding it must be independent, decisions must be binding, and judges, howsoever named, should base their decisions on articulated standards evidenced in a reasoned decision. Moreover, internationally, there are two main methods of adjudication. These are arbitration and judicial settlement. The differences between those two methods primarily relate to the permanence of the adjudicative body, the scope of its jurisdiction, and who is responsible for choosing the adjudicator/s. In this respect, Binder explains:

The arbitral tribunal is constituted to address only the particular issue or issues entrusted to it by the parties’ agreement and is bound strictly by the terms of that agreement. Once the tribunal’s work is completed, it ceases to exist. While arbitration tribunals typically are constituted to deal only with a single dispute . . . judicial settlement is a form of adjudication that involves the referral of a dispute or disputes to a permanent judicial body for binding settlement. In the case of judicial settlement, the machinery and procedure of the tribunal, including the method of selecting the judges of the court, are already established . . . A permanent judicial tribunal is typically established to deal with a broad number and range of disputes . . . and continues in existence beyond its judgment in any particular case.Footnote 17

In sum, compared to arbitral tribunals, courts are of a more permanent nature, their jurisdiction is not limited to particular cases, and judges are appointed for longer terms based on what should be a transparent and well-defined process.

Second, attention is turned to the term “transnational” in the phrase “transnational hybrid adjudication.” It refers to the process of all manner and form of cross-border “interactions between multiple actors, norms and institutions that characterizes much of contemporary legal practice.”Footnote 18 As Zumbansen puts it, “[u]sually, ‘transnational’ is taken to describe, quite literally, that which crosses as well as bridges national borders.”Footnote 19 In this context, the blunt binary between international and national law does not capture the legal reality with the necessary nuance. As early as 1956, Jessup had famously coined the term “transnational law” to include “all law which regulates actions or events that transcend national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories.”Footnote 20 More recently, commenting on his work on ‘transnational legal process,’ Harold Koh explained:

Transnational legal process describes the theory and practice of how public and private actors—nation-states, international organizations, multinational enterprises, non-governmental organizations, and private individuals—interact in a variety of public and private, domestic and international fora to make, interpret, enforce, and ultimately, internalize rules of transnational law.Footnote 21

For present purposes, it suffices to state that transnational adjudication would occur whenever the adjudicative process transcends national frontiers in one way or another (see further 3 b below). Obviously, this includes within its purview the work of a large number of courts and arbitral bodies. At the international level, several permanent courts are engaged in transnational adjudication. These include the International Court of Justice, International Criminal Court (ICC), the International Tribunal for the Law of the Sea, the Appellate Body of the World Trade Organisation (dysfunctional at the time of writing), regional human rights courts, and courts of regional integration.Footnote 22 Of course, the particularities as to their personal, territorial, and subject matter jurisdiction, as well as institutional design differ considerably. The universe of binding dispute resolution at the international level is fragmented with more than forty permanent adjudicative mechanisms now in existence resolving various types of transnational disputes, including inter-state disputes, human rights claims, and the prosecution of individuals alleged to have committed international crimes.Footnote 23

Further, international arbitration has constituted the forum of choice in resolving transnational disputes in certain subject matters. Disputes in the sphere of international investment law, international commercial law, and sport, are generally subjected to investment, commercial and sports arbitration respectively.Footnote 24 International arbitration is now heavily institutionalized, forming a crucial part of the landscape created to resolve transnational disputes.Footnote 25 Finally, it would be remiss if one fails to observe the increasing role national courts play in adjudicating transnational claims.Footnote 26 The role of national courts in resolving such disputes goes far beyond typical cross-border civil and commercial disputes between private parties which national courts have decided for centuries using private international law techniques.Footnote 27 The narrowing of the rules on state and international organizations immunities over the previous decades,Footnote 28 reduced relevance of the concept of non-justiciability,Footnote 29 the explosion of litigation before national courts concerning human rights, climate change and environmental law,Footnote 30 international criminal law,Footnote 31 etc., has meant that more and more, domestic courts adjudicate highly contentious transnational disputes as well.

What is more, while the various forms of transnational adjudication are well-observed, of much interest is transnational adjudication being hybridized. Hybridization describes the phenomenon of institutional and normative churn presently occurring in transnational adjudication. The concept of hybridization goes beyond mere interaction between legal orders, institutions and norms,Footnote 32 but concerns the outcome of this ongoing interaction, potentially leading to the creation of “hybrid legal spaces.”Footnote 33 As a result, we now have dispute resolution mechanisms (DRMs) applying hybrid law which cannot be characterized as merely international or domestic, public or private law. Rather, it is a body of law which is composed of legal elements that relate to each of these categories.

Thus, transnational hybrid adjudication occurs whenever a claim transcending national borders is subjected to adjudication based on hybrid law. In other words, there are three aspects to transnational hybrid adjudication:

  • The presence of an adjudicative body;

  • That adjudicates disputes which transcend national frontiers; and

  • the law applied to resolve the dispute is of a hybrid nature.

In varying degrees, transnational hybrid adjudication has been occurring for some time. Examples include international sports arbitration by the Court of Arbitration for Sports which applies a hybrid body of Swiss law, human rights law and EU lawFootnote 34 and dispute resolution at international commercial courts which is based on the hybrid set of rules termed lex mercatoria.Footnote 35 In this article, I argue that we are witnessing an intensification of such forms of adjudication. Using the Oversight Board as an example, I show how private actors drive transnational hybrid adjudication globally. This movement has the potential to create new types of DRMs that may have a systemic effect on how transnational disputes are resolved in particular, and on international law in general.

C. The Oversight Board: A Novel Experiment in Privately Driven Transnational Hybrid Adjudication

Admittedly, private modes of dispute resolution have been effectively used to resolve transnational disputes for a long time, especially through international arbitral processes. However, as will become evident, with “judges” appointed for fixed terms, the Oversight Board is more akin to a stable court whose competence is not limited to decide a particular claim, but a large number of disputes that fall within its subject matter jurisdiction. Indeed, the Oversight Board is the first objectively independent privately driven DRM established by a tech company to enhance its accountability. Our focus is on the Oversight Board’s role in providing users affected by Meta’s content moderation decisions some form of access to justice. In particular, it acts as an appellate review mechanism for user content at Facebook and Instagram. This section demonstrates that the Oversight Board may be characterized as an adjudicative mechanism (I.). Further, the Oversight Board resolves disputes of a transnational character (II.). Finally, the law applied is of a hybrid nature (III.). Thus, it is engaged in transnational hybrid adjudication.

I. The Oversight Board: An Adjudicative Mechanism?

As was said, adjudication as four aspects: (1) The dispute to be resolved must be of a legal character; (2) the decision-maker must be independent from the disputing parties; (3) the outcome of adjudication must be binding; and (4) the claim must be resolved based on articulated standards evidenced through a reasoned decision. Content moderation disputes are readily characterized as legal disputes for they constitute a disagreement between a social media company and its users on the application of the former’s rules and standards to the impugned content. Thus, no more is said on the first element. The discussion focuses on the other three aspects.

1. Independence

Independence and impartiality are the cornerstone of any adjudicative mechanism’s legitimacy and credibility. While judicial independence demands that judges make their decisions free from any external pressures (external independence), impartiality requires that judges are not objectively or subjectively biased in their decision-making in a particular case (internal independence).Footnote 36 For an adjudicative mechanism to be considered independent in general, it must enjoy institutional independence, and judges, whatever they might be called, must be personally independent.Footnote 37 And for impartiality to be secured, judges must avoid conflicts of interest where objective or subjective bias is manifest.Footnote 38 These are the very basic standards of independence expected in modern adjudication. A perusal of the Oversight Board’s constituent arrangements indicates that much effort has been made to ensure its independent functioning.

First, as to institutional independence, an adjudicative mechanism must possess both administrative and financial autonomy.Footnote 39 Concerning the Oversight Board, such independence must be vis-à-vis Meta, who has created it. Had the Oversight Board been placed within Meta’s company structure, its independence would have been highly suspect. However, in a novel and creative solution, private law instruments have been adopted to create a separation between Meta and the Oversight Board. Creating and irrevocably granting assets amounting to USD 280 million thus far to a non-charitable purpose trust under the laws of the state of Delaware (Oversight Board Trust), Meta has ceded a portion of its authority to the Oversight Board to review its content moderation decisions.Footnote 40 The purpose of the Oversight Board Trust is set out in clause 2.1 of the agreement creating it, which states:

The purpose of the Trust . . . is to facilitate the creation, funding, management, and oversight of a structure that will permit and protect the operation of an Oversight Board (the ‘Oversight Board’ or ‘Board’), the purpose of which is to protect free expression by making principled, independent decisions about important pieces of content and by issuing policy advisory opinions on Facebooks content policies. The Board will operate transparently and its reasoning will be explained clearly to the public, while respecting the privacy and confidentiality of the people who use Facebook, Inc.s services, including Instagram.

The trustees of the Oversight Board Trust, comprising of one corporate trustee and several individual trustees, are required to help fulfil its purposes.Footnote 41 To this end, the trustees have formed a Delaware limited liability company (LLC). The LLC allows the trustees to administer the Oversight Board through a distinct corporate entity that they manage independently of Meta.Footnote 42 In particular, the LLC has entered into a service agreement to provide content review services to Meta.Footnote 43 These content review services are ultimately performed by the Oversight Board which comprises of a diverse group of members. Oversight Board members are retained pursuant to contracts between the LLC and each board member.Footnote 44 Thus, a legal separation between Meta/Facebook and the Oversight Board is immediately apparent.Footnote 45

Moreover, the management structure employed at the LLC also enhances the Oversight Board’s institutional independence. The LLC is managed by individual managers (the individual trustees of the Oversight Board Trust) who direct the day-to-day financial and administrative operations of the Oversight Board.Footnote 46 The individual managers deal with matters such as the appointment and removal of Oversight Board members, their compensation, and employment of staff to support the Oversight Board (including the Director of the Oversight Board).Footnote 47 With Meta/Facebook not involved in day-to-day administration and financial operations, “[a]t least in regard to administrative matters and operation, the Board and Trust largely self-govern.”Footnote 48

Second, to maximize the personal independence of Oversight Board members, it is necessary to ensure that their selection is based on merit and is undertaken transparently.Footnote 49 Security of tenure also facilitates personal independence. In general, non-renewable judicial terms that are relatively lengthy promote individual independence,Footnote 50 judges should only be removed in cases of proven misconduct following a fair process, and financial security for judges reduces the possibility of undue external pressures.Footnote 51 Regarding the selection of Members, Oversight Board members seemingly play a key role in the appointment of future members.,Footnote 52 with the precise criteria based on which members are to be appointed being somewhat unclear.Footnote 53

That being said, the ability of users to suggest candidates for membership of the Oversight Board,Footnote 54 and the need for diversity and geographical representation going beyond the conventional categories followed in the United Nations system,Footnote 55 are novel features and constitute positive developments. In practice, initial appointments indicate that a highly competent group of individuals has been selected. With an equal number of men and women, the Oversight Board consists of several prominent individuals from all around the world, including a retired U.S. Federal Court of Appeals judge, several law professors, a former Prime Minister of Denmark, a former special rapporteur for freedom of expression to the Inter-American Commission on Human Rights, and a former winner of the Nobel Peace Prize.Footnote 56

It is one thing to appoint meritorious persons as judges, but yet another to ensure their personal independence through security of tenure. Regarding the security of tenure, weaknesses are evident. Members are appointed for a three-year term, which is renewable twice.Footnote 57 Oversight Board members are tantamount to contract judges. Noting that Oversight Board Members seem to receive a six-figure salary for approximately fifteen hours of work per week,Footnote 58 creating significant financial incentive for renewal, one may question whether such short terms of appointment undermine the Oversight Board’s independence, especially as Meta is the respondent in every case before it. Finally, legally speaking, Oversight Board members are hired and fired by the individual members of the LLC. With no detailed process laid down for Member removal, security of tenure is further affected.Footnote 59

Finally, concerning guarantees of impartiality, a Statement of Conduct stating that Oversight Board members must avoid conflicts of interest has been adopted.Footnote 60 Its breach can lead to a member’s removal.Footnote 61 To an extent, judicial impartiality is guaranteed at the Oversight Board. However, a user cannot raise questions of impartiality because so far, cases have been decided by a panel of five Members anonymously.Footnote 62 This means that a user does not know the identity of the member/s who determined their case. However, one cannot be overly critical of the Oversight Board’s design because anonymity can be independence enhancing in certain respects. By not identifying who took a particular decision, the chances of individual member/s suffering retribution are not fully eliminated, but considerably reduced.

Overall, it is the Oversight Board’s institutional characteristics that are truly novel. With judges appointed for fixed terms, it is akin to a court like structure that is stable and not created on an ad hock basis. The Oversight Board is thus distinct from a typical arbitral tribunal whose jurisdiction is based on the consent of the disputing parties, where the arbitral tribunal would cease to exist once it has discharged its particular mandate. Indeed, the Oversight Board’s independence has been secured in a creative way. Ensuring its independence from its creator, Meta, demanded out of the box thinking. Significant effort has been made to guarantee the institutional independence of the Oversight Board through the Oversight Board Trust and the LLC.

Even though some issues with personal independence exist, the actions of Oversight Board members, inside and outside of the “court room,” so far appear to be consistent with independent decision-making.Footnote 63 Initial indications are that the Oversight Board is not hesitant to regularly rule against Meta.Footnote 64 As noted in its first annual report, the Oversight Board “overturned Meta in 70% of case decisions—overturning its content moderation decisions fourteen times and upholding its decisions 6 times,” with Meta complying with all of those decisions.Footnote 65 It may be concluded that by and large, the Oversight Board can be said to constitute an independent and impartial adjudicative mechanism based on its constituent instruments and practice so far. Whether this continues to be the case remains to be seen.

2. The Ability to Make Binding Determinations

Although demonstrating effectiveness, a high compliance rate with a DRM’s determinations on its own is not sufficient to qualify it as an adjudicative body. It is important that the decisions rendered by the independent third party be de jure binding for a dispute resolution process to qualify as adjudication. In particular, the aspect of bindingness concerns the ability of a DRM to make obligatory determinations on questions of jurisdiction as well as the merits.Footnote 66 As is discussed below, the Oversight Board possesses competence-competence, that is, the jurisdiction to conclusively determine questions about its own jurisdiction.Footnote 67 And the Oversight Board’s decisions on the merits are binding on Meta.

First, on matters of jurisdiction, it is worth emphasizing that as of now, the personal jurisdiction of the Oversight Board is truly vast, however, its subject matter jurisdiction is narrow. The Oversight Board’s constituent arrangements allow Facebook and Instagram users to challenge content decisions on individual posts.Footnote 68 Meta can also self-refer content decisions going beyond individual pieces of content,Footnote 69 including on de-platforming a user, as it did when referring the decision to exile Donald Trump from Facebook (see 3. c below). While the Oversight Board is potentially available to billions of users, the subject matter it can rule on is fairly limited at this stage. Within the sphere of that jurisdictional scheme though, the Oversight Board’s competence to determine its own competence should not be doubted. It has already demonstrated its willingness to make robust jurisdictional determinations. For example, in a case where its automated systems wrongly removed an Instagram post showing women’s nipples in the context of breast cancer awareness, Facebook argued that the Oversight Board lacked authority because no dispute existed once the post was restored after Facebook realized its error.Footnote 70 Upholding its power to adjudicate, the Oversight Board said:

The panel has the power to review Facebook’s decision under Article 2 (Authority to Review) of the Oversight Board’s Articles of Association and may confirm or revoke this decision under Article 3, Section 5 (Review Procedure: Resolution) of the Articles of Association. Facebook has neither presented reasons for excluding the content in accordance with Article 2, Section 1.2.1 (Content Not Available for Board Review, dt .: content that is not available for review by the board) of the rules of procedure of the Oversight Board, nor has Facebook stated that it does not consider the case to be qualified in accordance with Article 2, Section 1.2.2 (Legal Obligations) of the Rules of Procedure.Footnote 71

The Oversight Board has shown that it is not hesitant to exercise authority where doing so is consistent with its constituent arrangements. Within its jurisdictional scheme, the Oversight Board makes final and binding decisions as to its own competence. Second, on the question relating to the bindingness of the Oversight Board’s decisions on the merits, as has been said, Meta has endowed it with the power to make binding verdicts on moderation decisions concerning individual pieces of content. When the Oversight Board instructs that a given post should be reinstate or removed, Meta has committed to implement the decision within seven days unless doing so could violate national law.Footnote 72 A significant carve out from enforcement of Oversight Board decisions seems to exist. However, this does not detract from their binding quality as such, pointing to the complexity of potential conflicting obligations on Meta which may affect the enforcement of Oversight Board decisions in a particular jurisdiction. For completeness, it is worth pointing out that the Oversight Board also possesses advisory jurisdiction, and can issue non-binding policy recommendations.Footnote 73 While these recommendations are not binding as such, Meta must consider how they may be operationally implemented, and respond publicly and transparently to such guidance.Footnote 74 In sum, as the Oversight Board’s decisions on its “contentious jurisdiction” are of a binding quality, it may be qualified as a DRM engaging in the adjudicative process. As was pointed out, so far, there do not appear to be compliance shortfalls with the decisions of the Oversight Board either. This consolidates the Oversight Board’s status as the DRM intended to be the final arbiter on content moderation decisions at Meta.

3. The Requirement of Articulated Decisions

Finally, it is apparent that the Oversight Board must perform its adjudicative function based on articulated standards evidenced through a reasoned judgment. A discussion of the substantive standards applied by the Oversight Board is at 3. c below. For the moment, it is worth stating that the very preamble of the Oversight Board Charter states that it “will operate transparently and its reasoning will be explained clearly to the public.” Article 1(6) goes on to provide that “Members will collaborate in decision-making to foster an environment of collegiality, and issue principled decisions and policy recommendations using clearly articulated reasoning.” In discharging its mandate, the Oversight Board has been rendering well-reasoned decisions that are publicly available in multiple languages (see further 4. b below). In the final analysis, it may be concluded that as the Oversight Board amounts to an independent third party resolving a category of legal disputes based on articulated standards evidenced through a binding decision, it does constitute an adjudicative body.

II. The Transnational Element

The second element pointing to the occurrence of transnational hybrid adjudication relates to the “transnational” nature of the Oversight Board’s core work. As was stated earlier (2 above), this means that an adjudicative mechanism’s work should transcend national frontiers. In other words, there should be a cross-border element present. Private international law provides for a neat list of situations in which a dispute can said to be cross-border in nature. Specifically, where the parties to a dispute are located in different countries, the subject matter of a dispute crosscuts state boundaries, or a judgment has transborder implications, a cross-border element will be present.Footnote 75 Any dispute that reflects one or more of the aforementioned elements can said to be transnational in nature.

The Oversight Board hears appeals from users located across the globe. The vast majority of the Oversight Board’s work is thus likely to be inherently transnational just based on the location of the parties to the dispute. What is more, the Oversight Board is a DRM established under U.S. law. But it adjudicates issues arising in numerous jurisdictions. The legal and factual issues the Oversight Board resolves thus transcend one domestic jurisdiction. Finally, the effect of Oversight Board decisions is not limited to any one domestic jurisdiction. If a post is removed or maintained following an Oversight Board decision, then it is visible on the relevant platforms to any user who is able to access it regardless of where that user is located.

Moreover, the effect of a ruling is not limited to individual users. Due to the case prioritization practice of the Oversight Board, and given that Oversight Board decisions have precedential value,Footnote 76 similar cases will be decided similarly, regardless of where the facts occurred. Indeed, Oversight Board decisions, whether binding or advisory, are meant to have a systemic and multi-country effect on Facebook’s content moderation decisions.Footnote 77 For example, the Oversight Board’s decision in response to Facebook’s self-referral concerning Donald Trump’s exile from its platform will have a global effect on the limits that may be placed on political speech, at least in the digital sphere. The cross-border implications of Oversight Board decisions can thus be serious and consequential.

Therefore, the Oversight Board is engaged in adjudication that is inherently transnational. When we take into account that the sources of law the Oversight Board is required to apply stem from no singular legal order, the conclusion that adjudication at the Oversight Board transcends state boundaries becomes inescapable. It is the third element of transnational hybrid adjudication concerning questions of applicable law that I now turn to.

III. A Hybrid Law

The final element in transnational hybrid adjudication that remains to be examined concerns the concept of “hybrid” law. As was clarified earlier (see 2 above), hybrid law cannot be characterized as merely international or domestic, public or private. It is a body of law which is composed of legal elements that relate to each of these categories. An examination of the Oversight Board’s governing documents demonstrates that the applicable law is “hybrid” in nature. Article 2.2 of the Oversight Board Charter provides:

Facebook has a set of values that guide its content policies and decisions. The board will review content enforcement decisions and determine whether they were consistent with Facebook’s content policies and values.

For each decision, any prior board decisions will have precedential value and should be viewed as highly persuasive when the facts, applicable policies or other factors are substantially similar.

When reviewing decisions, the board will pay particular attention to the impact of removing content in light of human rights norms protecting free expression.

Thus, the substantive standards pursuant to which the Oversight Board adjudicates disputes refer to (1) Facebook’s own values and community standards,Footnote 78 (2) the Oversight Board’s own pronouncements, and (3) international human rights law (IHRL). The first two sources belong to the realm of non-state law and form an aspect of what has been referred to as platform law.Footnote 79 The third source belongs to public international law. Given that IHRL is expressly mentioned as a source of applicable law for the Oversight Board, the difficult conceptual question of the direct applicability of IHRL to private entities has been rendered academic for present purposes. In addition, Meta has voluntarily agreed to adopt the UN Guiding Principles on Business and Human Rights 2011.Footnote 80 The role IHRL is to play in the Oversight Board’s decision-making is somewhat ambivalent in terms of whether it provides for binding standards or is merely informational.Footnote 81 The applicability of IHRL thus warrants brief reflection.

Content decisions can engage a range of human rights, including of course the freedom of expression,Footnote 82 but also the right to democratic participation, the right to a fair public hearing, and the right to bodily security.Footnote 83 The issues the Oversight Board determine regularly engage a range of human rights, and it is suggested that IHRL provides, or should provide, the core standards based on which the Oversight Board ought to adjudicate the disputes brought before it.Footnote 84 As David Kaye, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression explained in 2018:

Human rights principles . . . enable companies to create an inclusive environment that accommodates the varied needs and interests of their users while establishing predictable and consistent baseline standards of behaviour. Amidst growing debate about whether companies exercise a combination of intermediary and editorial functions, human rights law expresses a promise to users that they can rely on fundamental norms to protect their expression over and above what national law might curtail. Yet human rights law is not so inflexible or dogmatic that it requires companies to permit expression that would undermine the rights of others or the ability of States to protect legitimate national security or public order interests. Across a range of ills that may have more pronounced impact in digital space than they might offline—such as misogynist or homophobic harassment designed to silence women and sexual minorities, or incitement to violence of all sorts—human rights law would not deprive companies of tools. To the contrary, it would offer a globally recognized framework for designing those tools and a common vocabulary for explaining their nature, purpose and application to users and States.Footnote 85

The role IHRL is playing in the Oversight Board’s initial decisions is notable, with the Oversight Board invariably using IHRL as the determinative standard. In fact, it is an application of IHRL on which Oversight Board decisions ultimately appear to turn. For example, the Oversight Board reversed Meta’s decision to remove a comment in which a supporter of Russian opposition leader Alexei Nawalny called another user a “cowardly bot.” Meta/Facebook removed the comment for using the word “cowardly” which was considered to constitute a negative character claim. The Oversight Board determined that while the removal was in line with Facebook’s Bullying and Harassment Community Standard, the Standard as it then read was an unnecessary and disproportionate restriction on free expression under IHRL.Footnote 86

Similarly, in its most prominent pronouncement thus far, in a case triggered by Donald Trump’s indefinite suspension from Facebook and Instagram, the Oversight Board’s decision was underpinned by IHRL considerations. The facts are well known. On January 6, 2021, during the counting of the 2020 electoral votes in the US presidential elections, a mob forcibly entered the Capitol Building in Washington DC, threatening the constitutional process. Five people died and many more were injured during the violence. During these events, then-President Donald Trump posted two pieces of content that amongst other things, praised the rioters, and spread misinformation that the 2020 US Presidential elections was stolen from Mr. Trump, an allegation that has not been substantiated.Footnote 87

On January 6, 2021, Meta removed Donald Trump’s posts for violating its Community Standard on Dangerous Individuals and Organizations.Footnote 88 The next day the block was extended indefinitely. Meta then referred this case to the Oversight Board. One of the key questions it asked the Oversight Board was “whether Meta correctly decided to prohibit Mr. Trump’s access to posting content on Facebook and Instagram for an indefinite amount of time.”Footnote 89 With no evidence behind Donald Trump’s assertions as to electoral fraud,Footnote 90 the Oversight Board readily concluded that by praising persons engaged in violence, he had breached Facebook’s community standards and Instagram’s Community Guidelines on dangerous persons. The removal of the offending posts was thus justified.Footnote 91 However, applying IHRL, the Oversight Board asked Meta/Facebook to reconsider Trump’s indefinite suspension imposed for it was not provided for in Facebook’s rules and was thus arbitrary. The Oversight Board thus ordered Facebook to either impose a time-limited suspension or to permanently ban Trump from Facebook.Footnote 92 For present purposes, of significance is the central role IHRL assumed in the Oversight Board’s decision-making. Examining Facebook’s human rights obligations, it said:

The Board analyzes Facebook’s human rights responsibilities through international standards on freedom of expression and the rights to life, security, and political participation. Article 19 of the ICCPR sets out the right to freedom of expression. Article 19 states that “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.Footnote 93

It is therefore apparent that IHRL, as applied by the Oversight Board, constitutes the core legal standard on which cases are ultimately determined. Further, akin to a human rights court or monitoring mechanism the Oversight Board regularly conducts a “proportionality” analysis when determining whether expression is being limited justifiably,Footnote 94 has emphasized the importance of due process for users where their posts are removed,Footnote 95 repeatedly said that community standards and content moderation decision should be clear and accessible in line with IHRL standards,Footnote 96 relying on the provisions of the ICCPR. The Oversight Board has especially sought to protect political speech,Footnote 97 and emphasized the need for heightened scrutiny correctly allowing for limiting speech where real-world harm may ensue as a result of content decisions in the context of an armed conflict.Footnote 98

While IHRL seems to constitute the core standard against which platform law is assessed, in line with its mandate, it is notable that compliance with Meta’s own Community Standards and Values are always first scrutinized by the Oversight Board before it turns to IHRL.Footnote 99 Consequently, the applicable legal regime is truly hybrid. We are perhaps witnessing the initial stages of a convergence of platform law, IHRL, and potentially even national law which can influence the content of platform law.Footnote 100 Such a normative churn may lead to a distinct branch of human rights law which could be referred to as digital human rights law.Footnote 101 Therefore, the transnational hybrid adjudication occurring at the Oversight Board may end up having substantive implications for international law in general. Whether or not this occurs depends on how viable adjudicative mechanisms like the Oversight Board will be in the long run. While it is too early to determine the systemic effect the Oversight Board may have, some initial observations can be made.

D. Will the Oversight Board Have a Systemic Impact?

The creation of the Oversight Board has the potential to have an impact on transnational dispute resolution specifically, and international law generally. Given that Meta is one of the most powerful, wealthy, and influential social media companies globally, the creation of the Oversight Board is likely to already influence the standards of free speech in the digital sphere, including who determines those standards. The Oversight Board’s impact can be more structural as well. As the discussion below points out, this impact can be access to justice enhancing (4. a), on institutional design (4. b), and on the structures of international law more generally (4. c).

I. Access to Justice

First and foremost, for the moment, the Oversight Board provides a forum for Facebook and Instagram users to seek independent review of content decisions made by Facebook. This, on its own is a unique development where a private entity has created what could end up becoming a permanent autonomous adjudicative mechanism accessible to persons it adversely affects. Permanent courts and tribunals have traditionally been created by states or international organizations, and thus belong to the public realm. We are perhaps witnessing the privatization of justice delivery, at least in the digital sphere. The creation of the Oversight Board may inspire other multinational corporations to create similar DRMs. In this regard, the question is why other private actors would be willing to incur the considerable expense of creating adjudicative bodies, giving up aspects of their authority. A response to this question requires a more nuanced understanding of the multiplicity of reasons behind the creation of the Oversight Board, and considering whether other private companies may also have similar motivations.

The motivation for the creation of the Oversight Board is multifaceted. Its setting up is perhaps a response to a number of factors that include reputational reasons; satisfying calls for enhanced accountability by users, governments, and NGOs; attempts by Meta to avoid regulatory intervention or threats of such intervention;Footnote 102 and the ever-increasing pressure on multinational corporations to comply with human rights standards. Amongst other things, these principles state that multinational corporations should act with accountability, an aspect of which is to provide access to justice to persons harmed by corporate conduct.Footnote 103

Other technology firms, such as Google which owns YouTube and Twitter, are not immune to the aforementioned pressures. With ever-increasing calls on them to act accountably and transparently,Footnote 104 not just Meta, but other technology companies are subject to regulatory intervention, or threats of such intervention in jurisdictions around the world. What is more, national courts are starting to make decisions requiring such companies to comply with users’ human rights.Footnote 105 Thus, the motivation for technology firms to ensure just treatment for users who have been harmed by their actions is apparent. In the future, we may witness more and more technology firms joining the jurisdiction of the Oversight Board, or alternatively, creating their own DRMs. Indeed, multinational corporations operating outside of the technology sector could also choose to set up independent and tailored DRMs to provide justice too individuals they adversely affect.

Setting up independent adjudicative mechanisms would assist the private sector to comply with human rights standards that apply to them, as well as result in other benefits that would most certainly flow due to enhanced accountability. There are indeed significant advantages for the private sector in choosing to embrace hybrid transnational adjudicative bodies. The most obvious one is the need to ensure access to justice for persons they harm. Often, adjudicative mechanisms at the national level are unable to deliver effective justice to the victims of corporate conduct due to procedural hurdles as well as the great expense of seeking justice against multinational corporations. And there are no international courts or tribunals directly accessible to individuals where they can seek justice against private corporations. Transnational hybrid adjudicative mechanisms can help address this justice gap.

Moreover, by creating their own DRMs, private corporations can influence the standards according to which disputes are resolved. A hybrid body of law would allow a corporation to compile its own applicable law picking and choosing from self-created and existing norms stemming from distinct legal orders. The possibility to use international law as an element of the applicable law can help promote the consistent delivery of justice according to international standards regardless of borders. In the process, global standards of corporate behavior will be developed and enforced. The greater use of international law to resolve transnational disputes would naturally promote the international rule of law. Finally, the institutional design of the Oversight Board demonstrates that it is perfectly possible for corporations to create independent DRMs. Private models of adjudication that go beyond the much-criticized arbitration-based framework could provide more stable, consistent, and transparent forms of decision-making. If more private companies create independent and impartial DRMs, justice delivery could become more and more privatized. This could be a positive structural impact of entities like the Oversight Board. But only if the quality of justice rendered is consistent with international standards.

II. Institutional Design

It is the novel institutional design of the Oversight Board that could have a systemic impact on how transnational disputes against corporations are resolved. It could provide inspiration to other corporations in designing their own DRMs. The trust structure to separate the Oversight Board from Meta, thereby ensuring the former’s independence from the latter, is truly unique and could be worth replicating in one form or another. Moreover, whether or not one agrees with the outcome of individual cases, it is undeniable that the quality of the Oversight Board’s work is high. With no expense spared to fund it—unlike international courts and tribunals that are constantly under budgetary pressures—the Oversight Board is in an enviable position. It comes as no surprise that very quickly, it established itself as a reputable adjudicative mechanism. With an attractive and accessible website, all decisions published, judgments rendered in English as well as the language closest to the user,Footnote 106 public submissions welcomed and easily accessible, ready access to cultural and language expertise provided to Oversight Board members,Footnote 107 the quality of adjudication at the Oversight Board in many respects is remarkable.

The institutional design of the Oversight Board could significantly influence the type of DRMs other technology companies may create in the future. With appropriate adaptations, its institutional design could also form a blueprint for corporations more generally. This does not mean that significant challenges do not exist. A key challenge concerns the jurisdictional design that should be employed for such DRMs. Given their global connections, determining their personal and subject matter jurisdiction is a highly difficult task. Obviously, if an adjudicative mechanism’s jurisdiction is designed narrowly, what it can do in practice is limited, potentially affecting its overall effectiveness in terms of the number and type of disputes a DRM can actually adjudicate. The Oversight Board appears to have met this challenge well with respect to personal jurisdiction, but questions may be asked about its narrow subject matter jurisdiction.

The Oversight Board’s personal jurisdiction is unique when compared to other transnational DRMs. With its more than two billion users, all aggrieved users are able to access the Oversight Board’s independent review function in theory. There is perhaps no other transnational DRM accessible to such a vast number of individuals regardless of their territorial links. In the digital world at least, the Oversight Board has de-territorialized the rules on personal jurisdiction, being rules which historically have been primarily based on the connecting factor of territoriality.Footnote 108

With millions of posts potentially open to challenge,Footnote 109 a solution had to be found to make the Oversight Board’s work-load manageable. That is why the Oversight Board operates akin to an appellate Court. An aggrieved user can only file a case if they have exhausted review possibilities at Meta itself making it the first instance review mechanism.Footnote 110 This model is often adopted at DRMs created by public international organizations as a result of their access to justice obligations to third parties.Footnote 111 Parallels between the Oversight Board and other transnational grievance mechanisms are thus evident. Moreover, assuming internal remedies at Meta are exhausted, the decision whether to accept an appeal lies with a rotating subset of Oversight Board Members. A Case Selection Committee evaluates and selects “cases by a majority vote.” It “prioritize[s] cases that have the potential to impact many users around the world, are of critical importance to public discourse, or raise important questions about Facebook’s policies.”Footnote 112 By selecting the most influential cases for review, the idea is that the Oversight Board’s independent review function benefits as many users as possible and on issues of the greatest significance. A genuine attempt has been made to ensure that the Oversight Board’s workload is manageable. This however means that the vast number of users whose cases are not selected by the Oversight Board are in practice unable to access an independent review body when aggrieved by Facebook or Instagram’s content decisions. For such users, the Oversight Board does not provide access to justice.

While the personal jurisdiction of the Oversight Board is vast, this cannot be said about its subject matter jurisdiction. As of now, the Oversight Board can only make determinations on whether content posted on Facebook or Instagram should be allowed. This jurisdiction is narrow, excluding amongst other things, decisions regarding account suspensions and arguably, the use of the Facebook algorithm which significantly influences the visibility of posts.Footnote 113 Although, Pickup has argued that a “careful reading of the Board’s Charter reveals that it already has the authority to both access Facebook’s algorithms as part of its standard review process and to make recommendations about algorithms’ impact on Facebook.”Footnote 114 What approach the Oversight Board takes to this issue remains to be seen. Be that as it may, as Douek observed, the board’s limited jurisdiction is the “biggest disappointment in the process of its establishment so far.”Footnote 115 Even though the Board’s limited competence significantly influence what it can presently do, eventually the Board’s jurisdiction may be expanded, thus blunting the criticism about its limited capacities. It is nevertheless important to emphasize that such DRMs cannot be expected to be a panacea which will ensure access to justice to every single person who is directly or indirectly affected by corporate conduct in all situations.

Thus, the Oversight Board’s systemic impact would probably be limited in terms of the type of disputes it decides. Where its systemic impact could be most compelling concerns the Oversight Board’s institutional design. If other corporations use the Oversight Board as a blueprint for their own DRMs in the future, private justice will look more and more like publicly administered justice. In some respects, the quality of private justice may actually be far superior to the standard observed in many national jurisdictions, thus promoting the international rule of law.Footnote 116

III. Structures of International Law

To conclude, it is pertinent to make some observations on what impact the creation of transnational hybrid adjudicative bodies such as the Oversight Board can have on the structures of international law in general. First, we are witnessing an intensification of private law making in the digital sphere. The emerging body of digital human rights law is shaped, to a considerable extent, by private actors such as the Oversight Board. This body of law is not being developed by states, the key actors in international law, but by Big-Tech, the key players in the digital sphere. Given their immense power and influence, it should not come as a surprise that technology companies seek to drive the development of regulatory standards. With nation states unable to agree on the rules that should govern the digital sphere, the law-making space has been filled by private actors to some degree. While such forms of private law-making are occurring in the digital sphere in a significant way, similar developments may occur in other sectors too. There is no reason why the process of private law-making could not intensify even more. Thus, private adjudication based on hybrid standards poses a real challenge to the prescriptive authority of the state in a practical sense.

Second, by starting to create court like structures, private actors are steadily encroaching into the space conventionally occupied by states and international organizations in terms of who creates transnational courts and tribunals. How states and courts respond to this encroachment will influence the extent to which transnational hybrid adjudication structurally influence international law. There will be an ever-increasing opportunity for interaction among adjudicative bodies such as the Oversight Board, and international and national courts. In particular, the dialogue between classical international courts and transnational hybrid courts could hybridize the human rights discourse in particular, and international law discourse in general. The Oversight Board already applies IHRL in its decisions. If conventional courts start referring to Oversight Board decisions, true hybridity may be achieved in time. Whether or not this would result in a watering down or strengthening of IHRL is a question that is too early to answer. All the same, the Oversight Board, or similar DRMs created in the future, could very well influence the forum of choice for accessing justice.Footnote 117 Where justice at such DRMs is delivered consistently with international procedural and substantive standards, conventional courts may very well respect and recognize the decisions of such DRMs, which is important to shape their global influence and to build credibility. Should this occur, access to justice for the victims of corporate conduct could be enhanced. This is because there will exist a greater number of forums where corporate conduct can be effectively challenged.

However, the creation of more and more courts will result in even greater fragmentation than presently is the case. To avoid conflicting claims to regulatory authority in a pluralist legal world, tools to coordinate authority are needed. If robust tools to coordinate regulatory authority of DRMs based in distinct legal orders can be implemented, an issue I discussed elsewhere,Footnote 118 such fragmentation should not be frowned upon. If regulatory coordination can be achieved, the structural impact of adjudicative bodies such as the Oversight Board could be significant and positive for transnational dispute resolution will become more streamlined, more accessible, and more effective. Ultimately, if the Oversight Board proves to be a viable adjudicative mechanism, with its medium to long term feasibility depending on the quality of justice delivered, the broad recognition of its decisions, user satisfaction, and impact on corporate behavior,Footnote 119 we could be at the cusp of a new wave of transnational hybrid adjudication. In the 1990s and early 2000s, several new courts and tribunals, such as the Appellate Body of the WTO and ICC were created. The Appellate Body is presently dysfunctional, the ICC faces serious challenges, and a backlash against international courts and tribunals has been much too evident. It is perhaps privately driven transnational hybrid adjudication that may end up promoting the international rule of law in this third decade of the 21st century, thereby seriously challenging the idea of a self-contained international law.

Competing Interests

The author declares none.

Funding Statement

No specific funding has been declared in relation to this article.

Author’s Note

This article was primarily written in 2021. To the extent possible, more recent information was incorporated at the editing stage. The author thanks Dana Burchardt and the anonymous referees for their comments.

References

1 See Meta, Founder’s Letter 2021 (Oct. 28, 2021), https://about.fb.com/news/2021/10/founders-letter/ (announcing that the Facebook Company is changing its name to Meta). In this article, “Meta” refers to the company, and “Facebook” and “Instagram” refer to the product and policies attached to the specific apps.

2 See Companies MarketCap, Meta, https://companiesmarketcap.com/facebook/marketcap/ (detailing the decline in Meta’s value in recent times); see also Meta Lost Over a Quarter of Its Value in a Single Day. That’s Almost $240 Billion, ZDNET (Feb. 3, 2022), https://www.zdnet.com/article/meta-lost-over-a-quarter-of-its-value-in-a-single-day/.

3 See Statista, Number of Daily Active Facebook Uses Worldwide as of 4th Quarter 2022 (Feb. 2023), https://www.statista.com/statistics/346167/facebook-global-dau/. However, Facebook’s user-base recently witnessed a slight decline. See John Naughton, For the First Time in Its History, Facebook Is in Decline. Has the Tech Giant Begun to Crumble?, Guardian (Feb. 6, 2022), https://www.theguardian.com/commentisfree/2022/feb/06/first-time-history-facebook-decline-has-tech-giant-begun-crumble. Meta operates several apps. In addition to Facebook, it owns Instagram, WhatsApp, etc. See Nathan Reiff, 5 Companies Owned by Facebook (Meta), Investopedia (Oct. 26, 2022), https://www.investopedia.com/articles/personal-finance/051815/top-11-companies-owned-facebook.asp.

4 See Alleged Crimes in Raya Kobo, Oversight Board, Case decision 2021-014-FB-UA, §3 (2021); see also Nina Jankowicz, Maria Ress’s Nobel Prize Is a Huge Blow to Facebook, Wash. Post (Oct. 9, 2021), https://www.washingtonpost.com/opinions/2021/10/09/maria-ressa-nobel-prize-indictment-of-facebook/.

5 Kate Klonick, The Facebook Oversight Board: Creating an Independent Institution to Adjudicate Online Free Expression, 129 Yale L.J. 2421, 2422 (2020).

6 As the Wall Street Journal reported in 2021, through a program known as XCheck, Meta has built a system that has exempted millions of “high-profile users from some or all of its rules.” Jeff Horwitz, Facebook Says Its Rules Apply to All. Company Documents Reveal a Secret Elite That Is Exempt, Wall St. J. (Sept. 13, 2021), https://www.wsj.com/articles/facebook-files-xcheck-zuckerberg-elite-rules-11631541353.

7 See Sheila Dang & Paresh Dave, Facebook Research Shows Company Knew of Instagram Harm to Teens, Senators Say, Reuters (Sept. 30, 2021), https://www.reuters.com/technology/facebook-research-shows-company-knew-instagram-harm-teens-senators-say-2021-09-30/.

8 See Elizabeth Dwoskin, Misinformation on Facebook Got Six Times More Clicks Than Factual News During the 2020 Election, Study Says, Wash. Post (Sept. 3, 2021), https://www.washingtonpost.com/technology/2021/09/03/facebook-misinformation-nyu-study/.

9 See Jankowicz, supra note 4; Karen Lema, Philippine Nobel Winner Ressa Calls Facebook ‘Biased Against Facts,’ Reuters (Sept. 9, 2021), https://www.reuters.com/world/philippine-nobel-winner-ressa-calls-facebook-biased-against-facts-2021-10-09/; Zahra Takhshid, Regulating Social Media in the Global South, 24 Vand. J. Ent. & Tech. L. 1 (2022).

10 Mark Zuckerberg, A Blueprint for Content Governance and Enforcement, Facebook (2018), https://www.facebook.com/notes/751449002072082/?hc_location=ufi (last visited Aug. 20, 2021).

11 See Oversight Board, https://oversightboard.com/ (last visited Aug. 20, 2021).

12 Id.

13 Klonick, supra note 5.

14 For the decisions of the Oversight Board see Case Decisions, Oversight Board, https://oversightboard.com/decision/.

15 See Oversight Board, Securing Ongoing Funding for the Oversight Board (July 2022), https://www.oversightboard.com/news/1111826643064185-securing-ongoing-funding-for-the-oversight-board/.

16 See Richard Bilder, Adjudication: International Arbitral Tribunals and Courts, in Peacemaking in International Conflict 195, 195 (William Zartman ed., 2007); Gary Born, A New Generation of International Adjudication, 61 Duke L. J. 781 (2012).

17 Bilder, supra note 16, at 198–201.

18 Antoine Duval, What Lex Sportiva Tells You About Transnational Law, in The Many Lives of Transnational Law: Critical Engagements with Jessup’s Bold Proposal 269, 270 (Peer Zumbansen ed., 2020).

19 Peer Zumbansen, Transnational Law: Theories and Applications, in Oxford Handbook of Transnational Law 3, 11–12 (2021).

20 Philip Jessup, Transnational Law 2 (1956).

21 Harold Hongju Koh, Transnational Legal Process, 75 Neb. L. Rev. 181, 183–184 (1996).

22 The Appellate Body of the WTO is dysfunctional at the date of writing. See generally, Rishi Gulati, Judicial Independence at International Courts and Tribunals: Lessons Drawn from the Experiences of the International Court of Justice and the Appellate Body of the World Trade Organization, in International Procedure in Interstate Litigation and Arbitration: A Comparative Approach 51, 51–88 (Eric de Brabandere ed., 2021).

23 As Alter notes, prior to the end of the Cold War in 1989, there were only six permanent international courts, but now well in excess of twenty international courts and tribunals exist. See Karen J. Alter, The Multiplication of International Courts and Tribunals After the End of the Cold War, in The Oxford Handbook of International Adjudication 63, 64 (Cesare P. R. Romano, Karen Alter & Yuval Shany eds., 2013). If all types of international courts and tribunals created through international agreements are counted, the list would be significantly longer with more than 20 international administrative tribunals having been created by international organizations to provide their employees access to justice. See generally, Rishi Gulati, An International Administrative Procedural Law of Fair Trial: Reality or Rhetoric?, 21 Max Planck Y.B. United Nations L. 210, 210–270 (2018).

24 See Born, supra note 16; Duval, supra note 18. International investment arbitration has come under sustained criticism from several quarters and some states are suggesting the creation of a permanent Multilateral Investment Court. For a short analysis, see Rishi Gulati & Nikos Lavranos, Guaranteeing the Independence of the Judges of the Multilateral Investment Court: A Must for Building the Court’s Credibility, 262 Colum. FDI Persps. (2019).

25 See Alec Stone Sweet & Florian Grisel, The Evolution of International Arbitration: Judicialization, Governance, Legitimacy 49 (2017).

26 See generally, Andre Nollkaemper, National Courts and the International Rule of Law (2011). For a discussion of national court decisions in virtually all branches of international law, see Andre Nollkaemper, International Law in Domestic Courts: A Casebook (2018).

27 The three pillars of private international law, namely, jurisdiction, applicable law, and recognition and enforcement of foreign judgments, are increasingly attracting global agreement, seeking to streamline transnational adjudication at the national level. See generally, Elgar Companion, on the Hague Conference on Private International Law (Thomas John, Rishi Gulati & Ben Köhler eds., 2020).

28 For the leading work on the evolution of the law of state immunities, and a discussion of the move from the absolute to the restrictive doctrine, see Hazel Fox & Phillipa Webb, The Law of State Immunity 25–72 (2015); R. Van Alebeek, Immunity of States and Their Officials in International Criminal Law and International Human Rights Law 11–102 (2008); U.N. Convention on Jurisdictional Immunities of States and Their Property art. 10(1). For a discussion on the immunities of international organizations see, Rishi Gulati, Access to Justice and International Organisations: Coordinating Jurisdiction between the National and Institutional Legal Orders 131–167 (2022).

29 See Belhaj and another v. Straw and others [2017] UKSC 3, [2017] 2 WLR 456; Rahmatullah v. Ministry of Defence and another [2017] UKSC 1, [2017] UKSC 3, ¶ 41. See also Campbell McLachlan, Foreign Relations Law 5 (2014).

30 For example, see the jurisprudence discussed in International Bar Association, Model Statute for Proceedings Challenging Government Failure to Act on Climate Change, An International Bar Association Climate Change Justice and Human Rights Task Force Report 3 (Feb. 2020).

31 The very structure of modern international criminal law is based on complementarity. See Rome Statute of the International Criminal Court, U.N.Doc. A/CONF.183/9, at 10 (July 17 1998).

32 The term “hybrid” has sometimes been used to refer to hybrid, internationalized or mixed criminal tribunals which are “half national, half international in nature.” This can be discerned from the way they were established (e.g. agreement between the host state and the UN), their subject matter-jurisdiction (both international crimes and national crimes) and their staff (both local judges/prosecutors and international staff). Tribunals which are in this category are the Special Panels and Serious Crimes Unit in East-Timor; Regulation 64 Panels in the Courts of Kosovo; Special Court for Sierra Leone; Extraordinary Chambers in the Courts of Cambodia; Special Tribunal for Lebanon; Extraordinary African Chambers; and the recently established Kosovo Specialist Chambers and Specialist Prosecutor’s Office. See Asser Institute, Hybrid Courts (last visited Aug. 20, 2021), https://www.asser.nl/nexus/international-criminal-law/the-history-of-icl/hybrid-courts/. This article goes beyond models of hybridization that are nothing more than coming together of national and international state-based structures into one entity.

33 Paul Schiff Berman, Understanding Global Legal Pluralism: From Local to Global, from Descriptive to Normative, in The Oxford Handbook of Global Legal Pluralism, 1–35 (Paul Schiff Berman ed., 2020). On hybridization, see Mireille Delmas-Marty, Ordering Pluralism: A Conceptual Framework for Understanding the Transnational Legal World 59–76 (2009); Dana Burchardt, Intertwinement of Legal Spaces in the Transnational Legal Sphere, 30 Leiden J. Int’l L. 305, 305–326 (2017).

34 Antoine Duval, Transnational Sports Law: The Living Lex Sportiva, in Oxford Handbook of Transnational Law 511–12 (Peer Zumbansen ed., 2021).

35 On this body of law, see Gralf-Peter Calliess, Lex Mercatoria, in Encyclopedia of Private International Law 1120–29 (Jürgen Basedow, Giesela Rühl, Franco Ferrari & Pedro de Miguel Asensio eds., 2017).

36 CJEU Opinion 1/17, Full Court, (Apr. 30, 2019), ¶¶ 202–203.

37 See Gulati, supra note 22, at 56.

38 For a discussion on impartiality at international courts and tribunals, see Chiara Giorgetti, The Challenge and Recusal of Judges of the International Court of Justice, in Challenges and Recusals of Judges and Arbitrators in International Courts and Tribunals 3 (Chiara Giorgetti ed., 2015); G.J. Spak & R. Kendler, Selection and Recusal in the WTO Dispute Settlement System, in Challenges and Recusals of Judges and Arbitrators in International Courts and Tribunals 164 (Chiara Giorgetti ed., 2015).

39 See Gulati, supra note 22, at 56–58.

40 For the Oversight Board’s Operational Oversight and Fiduciary Duties, see Oversight Board, Oversight Board Bylaws 30 (Feb. 2023), https://www.oversightboard.com/sr/governance/bylaws (hereinafter Oversight Board Bylaws). See also Klonick, supra note 5. For an understanding of this trust arrangement, see Vincent C. Thomas, Justin P. Duda & Travis G. Maurer, Independence With a Purpose: Facebook’s Creative Use of Delaware’s Purpose Trust Statute to Establish Independent Oversight, Business Law Today (Dec. 17, 2019), https://businesslawtoday.org/2019/12/independence-purpose-facebooks-creative-use-delawares-purpose-trust-statute-establish-independent-oversight/; see also, Oversight Board, supra note 15.

41 See Oversight Board Bylaws, supra note 40, at 30.

42 See id. at 5.

43 See Oversight Board, Powers of Managers, Director of Oversight Board and Director of LLC Administration 10–16 (Oct. 17, 2019), https://about.fb.com/wp-content/uploads/2019/12/LLC-Agreement.pdf.

44 Id. at 11.

45 The details of the relationship amongst the Oversight Board, Facebook, Oversight Board Trust, and the LLC are set out in Oversight Board, Oversight Board Charter 7–8 (Sept. 2019), https://about.fb.com/wp-content/uploads/2019/09/oversight_board_charter.pdf (hereinafter Oversight Board Charter); see also Oversight Board Bylaws, supra note 40.

46 See Oversight Board Bylaws, supra note 40, at 30.

47 For the Oversight Board’s administration and size functions, see Oversight Board Bylaws, supra note 40, at 13–15 (stating that the LLC must appoint the Director of the Oversight Board who is its head of administration). For the structure, trustee composition, and size of the Board, see Oversight Board Bylaws, supra note 40, at 30–33.

48 Klonick, supra note 5.

49 See Gulati, supra note 22, at 64–65.

50 See generally Jeffrey Dunoff & Mark Pollack, The Judicial Trilemma, 111 Am. J. Int’l L. 225, 225–276 (2017) .

51 See Gulati, supra note 22, at 67–68.

52 Although the members are formally appointed by the LLC, it is provided that those “candidates who receive a majority vote of the board will have their names presented to the trustees for formal appointment.” Oversight Board Bylaws, supra note 40, at 6.

53 Some general guidance is provided in the Oversight Board’s governing documents. Oversight Board members will range between 11 and 40 and they must exercise their functions independently and impartially. Oversight Board Charter, supra note 45, at 2–4 (“Members must not have actual or perceived conflicts of interest that could compromise their independent judgement and decision-making. Members must have demonstrated experience at deliberating thoughtfully and as an open-minded contributor on a team; be skilled at making and explaining decisions based on a set of policies or standards; and have familiarity with matters relating to digital content and governance, including free expression, civic discourse, safety, privacy and technology.”).

54 Recommendations for candidates can be made by users, Facebook and members of the Oversight Board. See Oversight Board Bylaws, supra note 40.

55 See id. at 10–11 (stating that at all times the board must include a globally diverse set of members). In particular, this means that board membership should encompass the following regions: United States and Canada; Latin America and the Caribbean; Europe; Sub-Saharan Africa; Middle East and North Africa; Central and South Asia; and Asia Pacific and Oceania.

56 For a list of Oversight Board members is available, see id. at 6. For the Oversight Board’s First Annual Report, see id. at 18.

57 See Oversight Board Charter, supra note 45, at 3.

58 The contracts between the LLC and Oversight Board Members do not appear to have been made public. See Kate Klonick, Inside the Making of Facebook’s Supreme Court, New Yorker, Feb. 12, 2021.

59 See Oversight Board Bylaws, supra note 40, at 6 (providing that “[r]emovals require a two-thirds vote of the board (not counting the member(s) in question), subject to approval of the trustees (as described in Article 4 “The Trust”); and may be considered only for a violation of the code of conduct”).

60 Article 1 of the Code of Conduct states that Oversight Board members must avoid conflict of interests; Article 2 states that any member with a conflict must recuse themselves in a relevant case. See Oversight Board Bylaws, supra note 40, at 6–26.

61 For the Code of Conduct detailed in Article 11 of the Bylaws, see Oversight Board Bylaws, supra note 40, at 39.

62 See id. at 29; see also Oversight Board Charter, supra note 45, at 6.

63 See Michel Martin, Facebook Oversight Board Co-Chair on Future of Trump’s Account, NPR (Jan. 23, 2021), https://www.npr.org/transcripts/959985616.

64 In its first decisions rendered in January 2021, the Oversight Board ruled against Facebook in four out of the five cases it considered. See Oversight Board, Announcing the Oversight Board’s First Case Decisions (Jan. 2021), https://oversightboard.com/news/165523235084273-announcing-the-oversight-board-s-first-case-decisions/.

65 Oversight Board, Oversight Board Publishes First Annual Report (June 2022), https://www.oversightboard.com/news/322324590080612-oversight-board-publishes-first-annual-report/.

66 For the criteria relevant to assess a court’s independence see Gulati, supra note 22. For a detailed account, see Amal Clooney & Philippa Webb, The Right to a Fair Trial in International Law 66–151 (2021).

67 See Prosecutor v. Tadić, Case No. IT-94-1-I, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, (Int’l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995).

68 Aggrieved Facebook or Instagram users can appeal to the Oversight Board to either reinstate a piece of content that either platform took down. See Oversight Board Charter, supra note 45, at 4; see also Oversight Board Bylaws, supra note 40, at 27. And as of April 13, 2021, users can appeal to remove a piece of content that the platform allowed to remain posted. See Oversight Board, The Oversight Board is Accepting User Appeals to Remove Content from Facebook and Instagram (Apr. 2021), https://www.oversightboard.com/news/267806285017646-the-oversight-board-is-accepting-user-appeals-to-remove-content-from-facebook-and-instagram/.

69 See Oversight Board Charter, supra note 45, at 4; Oversight Board Bylaws, supra note 40, at 22.

70 See Breast Cancer Symptoms and Nudity, Oversight Board, Case Decision 2020-004-IG-UA (2020).

71 Id. at § 3.

72 See id. at 24–25; Oversight Board Charter, supra note 45, at 7; Oversight Board Bylaws, supra note 40, at 19.

73 See Oversight Board Charter, supra note 45, at 7; Oversight Board Bylaws, supra note 40, at 23.

74 See Oversight Board Charter, supra note 45, at 7; Oversight Board Bylaws, supra note 40, at 25. Meta also reports on the implementation of the Oversight Board’s recommendations. See Meta, Oversight Board Recommendations (Mar. 3, 2023), https://transparency.fb.com/de-de/oversight/oversight-board-recommendations/.

75 See generally Gulati, supra note 28, at 168.

76 For the Board’s basis of decision making, see Oversight Board Charter, supra note 45, at 5.

77 Oversight Board Charter, supra note 45, at 7 (“[i]n instances where Facebook identifies that identical content with parallel context—which the board has already decided upon—remains on Facebook, it will take action by analysing whether it is technically and operationally feasible to apply the board’s decision to that content as well. When a decision includes policy guidance or a policy advisory opinion, Facebook will take further action by analysing the operational procedures required to implement the guidance, considering it in the formal policy development process of Facebook, and transparently communicating about actions taken as a result.”). Some commentators have argued that the Oversight Board can be placed within the sphere of global law. See, e.g., Lorenzo Gradoni, Chasing Global Legal Particles: Some Guesswork about the Nature of Meta’s Oversight Board, EJIL: Talk (Dec. 30, 2021), https://www.ejiltalk.org/chasing-global-legal-particles-some-guesswork-about-the-nature-of-metas-oversight-board/. The Oversight Board also has been compared to a human rights mechanism. See, e.g., Laurence Helfer & Molly K. Land, Is the Facebook Oversight Board an International Human Rights Tribunal?, Lawfare (May 13, 2021), https://www.lawfareblog.com/facebook-oversight-board-international-human-rights-tribunal.

78 Klonick, supra note 5, at 2422 (“through its ‘semipublic rules’ called ‘Community Standards,’ Facebook has created a body of ‘laws’ and a system of governance that dictate what users may say on the platform”).

79 See David Kaye, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, U.N. Doc. A/HRC/38/35, at ¶s 1 & 24 (Apr. 6, 2018); Molly K. Land, The Problem of Platform Law: Pluralistic Legal Ordering on Social Media, in The Oxford Handbook of Global Legal Pluralism 974, 975–94 (Paul Schiff Berman ed., 2020) (defining the elements of platform law as consisting of ‘four central elements: contract law, substantive law, procedural law, and technical law). Contract law includes the terms of service that govern the relationship between user and company. Substantive law includes both “legislation” (such as community standards or rules) and “common law” (the communications and practices of companies that elaborate and interpret those standards or rules). Technical law includes the design and technical choices that enable, nudge, and constrain the behavior of users on social media platforms. See also Orly Lobel, The Law of the Platform, 101 Minn. L. Rev. 87, 87–166 (2016).

80 See Former President Trump’s Suspension, Oversight Board, Case decision 2021-001-FB-FBR, § 3 (hereinafter Former President Trump’s Suspension): “On March 16, 2021, Facebook announced its corporate human rights policy, where it commemorated its commitment to respecting rights in accordance with the UN Guiding Principles on Business and Human Rights (UNGPs). The UNGPs, endorsed by the UN Human Rights Council in 2011, establish a voluntary framework for the human rights responsibilities of private businesses. As a global corporation committed to the UNGPs, Facebook must respect international human rights standards wherever it operates. The Oversight Board is called to evaluate Facebook’s decision in view of international human rights standards as applicable to Facebook.”

81 See Michel Martin, Facebook Oversight Board Co-Chair on the Future of Trump’s Account, NPR (Jan. 23, 2021) https://www.krwg.org/post/facebook-oversight-board-co-chair-future-trumps-account.

82 Article 19 of the ICCPR enshrines the right to freedom of expression. Article 19(2) specifically stipulates that the right to freedom of expression applies regardless of frontiers and through any media of one’s choice, and includes internet-based modes of communication. See General Comment No. 34, U.N. Doc. CCPR/C/GC/34, at ¶ 12; see also Human Rights Council Res. A/HRC/32/L.20 at ¶ 1 (2016). Moreover, it has been noted that: “While freedom of expression is clearly protected by a considerable body of treaty law it can also be regarded as a principle of customary international law.” See Richard Carver, Training Manual on International and Comparative Media and Freedom of Expression Law 5 (2018). For the international instruments protecting this right, see U.N. Human Rights Off. of the High Comm’r., International Standards, https://www.ohchr.org/en/issues/freedomopinion/pages/standards.aspx.

83 Human Rights Review: Facebook Oversight Board, BSR 15–17 (Dec. 2019), https://www.bsr.org/reports/BSR_Facebook_Oversight_Board.pdf.

84 See Rishi Guilati, The Facebook Oversight Board and It’s Trump Test, Voelkerrechtsblog (Apr. 02, 2021), https://voelkerrechtsblog.org/the-facebook-oversight-board-and-its-trump-test/; see also Marko Milanovic, The Facebook Oversight Board Made the Right Call on the Trump Suspension, EJIL:Talk (May 06, 2021), https://www.ejiltalk.org/the-facebook-oversight-board-made-the-right-call-on-the-trump-suspension/.

85 Kaye, supra note 79, ¶ 43.

86 See Pro-Navalny Protests in Russia, Oversight Board, Case decision 2021-004-FB-UA (2021).

87 See Former President Trump’s Suspension, supra note 80.

88 At the time of writing, Facebook’s Community Standard on Dangerous Individuals and Organizations prohibits “content that praises, supports, or represents events that Facebook designates as terrorist attacks, hate events, mass murders or attempted mass murders, serial murders, hate crimes and violating events.” It also prohibits “content that praises any of the above organizations or individuals or any acts committed by them," referring to hate organizations and criminal organizations, among others. Instagram’s Community Guidelines state that “Instagram is not a place to support or praise terrorism, organized crime, or hate groups,” and provide a link to the Dangerous Individuals and Organizations Community Standard. These standards are available, see Meta, Dangerous Individuals and Organizations, https://www.facebook.com/communitystandards/dangerous_individuals_organizations.

89 Former President Trump’s Suspension, supra note 80, at § 2.

90 See id.

91 See id. at § 8.1.

92 For a brief analysis of this decision, see Milanovic, supra note 84.

93 Former President Trump’s Suspension, supra note 80, at § 8.3.

94 See id. at ¶8 (detailing the three-part test to analyze Facebook’s actions when it restricts content or accounts. This test is based on IHRL and allows for “expression to be limited when certain conditions are met. Any restrictions must meet three requirements: Rules must be clear and accessible, they must be designed for a legitimate aim, and they must be necessary and proportionate to the risk of harm.”) See also General Comment No. 34, supra note 82, at ¶¶ 33–36.

95 See Öchlan’s Isolation, Oversight Board, Case Decision 2021-006-IG-UA, § 9 (2021).

96 See Nazi Quote, Oversight Board, Case Decision 2020-005-FB-UA, § 9 (2020).

97 Former President Trump’s Suspension, supra note 80, at § 8 (“Political speech receives high protection under human rights law because of its importance to democratic debate. The UN Human Rights Committee provided authoritative guidance on Article 19 ICCPR in General Comment No. 34, in which it states that ‘free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential’ (para. 20).”); see also Öchlan’s Isolation, supra note 95.

98 In its case decision 2021-014-FB-UA, the Oversight Board upheld Meta’s original decision to remove a post alleging the involvement of ethnic Tigrayan civilians in atrocities in Ethiopia’s Amhara region but for limits to the overall scheme governing the Oversight Board in this context. See Casey Newton, How Facebook Undercut the Oversight Board: What Really Happened Between the Company and the Board over Russia and Ukraine, Verge (May 12, 2022), https://www.theverge.com/23068243/facebook-meta-oversight-board-putin-russia-ukraine-decision.

99 A perusal of Oversight Board decisions shows that every decision first considers compliance with Meta’s community standards, then its values, and finally, IHRL. For the Oversight Board’s approach to IHRL, see Oversight Board, Oversight Board Publishes First Annual Report, supra note 65.

100 See Alexandre De Streel, Elise Defreyne, Hervé Jacquemin, Michèle Ledger & Alejandra Michel, Online Platforms’ Moderation of Illegal Content Online, Pol’y Dep’t for Econ., Sci. & Quality Life Policies, 65 (2020), https://www.europarl.europa.eu/RegData/etudes/STUD/2020/652718/IPOL_STU(2020)652718_EN.pdf (“Terms of Service/Terms of Use and Community Standards/Guidelines of the online platforms generally restrict more the freedom of expression than the international fundamental rights standards, in particular because they are based on the lowest common denominator between the different national legislations applicable to content.”).

101 Dafna Dror-Shpoliansky & Yuval Shany, It’s the End of the (Offline) World as We Know It: From Human Rights to Digital Human Rights—A Proposed Typology, 32 Eur. J. Int’l L. 1249 (2021).

102 For example, in the United States, efforts are being made to amend the rules on intermediary liability of platforms contained in the Communications Decency Act 1996 which provides immunity to platforms from civil liability for speech posted by users. See De Streel, supra note100, at 66–75 (discussing regulatory standards in various jurisdictions). Another issue relates to anti-trust issues. Attempts to counter Meta’s alleged monopoly through anti-trust proceedings have so far failed in the United States. See, e.g., F.T.C. v. Facebook, 560 F. Supp. 3d 1 (D.D.C. 2021). In the European Union, significant reforms are underway through the Digital Services and Markets Acts package. See, e.g., The Digital Services Act Package, European Commission, https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package. As the Cambridge Analytica saga demonstrated, Meta in particular has also faced very serious questions on matters of privacy and data protection triggering calls for more robust state action. See Facebook to Pay Record $5bn to Settle Privacy Concerns, BBC News (July 24, 2019), https://www.bbc.com/news/business-49099364.

103 See especially the Principles 11, 15, 22 and 29 of the UN Guiding Principles on Business and Human Rights. See U.N. Off. of the High Comm’r., U.N. Guiding Principles on Business and Human Rights, 13, 15, 24, 31 (2011), https://www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf. On the procedural side, a mechanism such as the Oversight Board is akin to adjudicative bodies created by public international organizations to provide access to justice to individuals whom those organizations adversely affect. International organizations create such DRMs to comply with their access to justice obligations under international law. See Gulati, supra note 28.

104 See Ian Bartlett & Derek Wyatt, Internet Giants such as Facebook and Twitter Must be Made Accountable for Content They Publish, Guardian (Dec. 21, 2017), https://www.theguardian.com/technology/2017/dec/21/internet-giants-such-as-facebook-and-twitter-must-be-made-accountable-for-content-they-publish; Rebecca Bellan, Facebook, Google, Twitter, YouTube Need to Take Responsibility for Election Integrity, Forbes (Sept. 22, 2020), https://www.forbes.com/sites/rebeccabellan/2020/09/22/facebook-google-twitter-youtube-need-to-take-responsibility-for-election-integrity/.

105 Consider the series of right to be forgotten cases. See, e.g., Case C-136/17, GC and Others v. Commission, ECLI:EU:C:2019:773; Case C-507/17, Google v. C.N.I.L., ECLI:EU:C:2019:773; Case C-131/12, Google Spain and Google v. A.E.P.D, ECLI:EU:C:2014:317. For a decision specifically concerning Facebook, German courts have required Facebook to reinstate content, see Douglas Busvine, Top German Court Strikes Down Facebook Rules on Hate Speech, Reuters (July 29, 2021), https://www.reuters.com/technology/top-german-court-strikes-down-facebook-rules-hate-speech-2021-07-29/.

106 Users can submit an appeal in a language of their choice and judgments are translated into at least 18 languages. Oversight Board Bylaws, supra note 40, at 17.

107 See id. at 16.

108 See Gulati, supra note 28, at 168–238.

109 Securing Ongoing Funding for the Oversight Board, Oversight Board (July 2022), https://www.oversightboard.com/news/1111826643064185-securing-ongoing-funding-for-the-oversight-board/.

110 See Oversight Board Bylaws, supra note 40, at 27–29.

111 See Gulati, supra note 28, at 38.

113 Dipayan Ghosh, Facebook’s Oversight Board Is Not Enough, Harv. Bus. Rev. (Oct. 16, 2019), https://hbr.org/2019/10/facebooks-oversight-board-is-not-enough.

114 Edward L. Pickup, The Oversight Board’s Dormant Power to Review Facebook’s Algorithms, Yale J. on Regul. (Sept. 7, 2021), https://www.yalejreg.com/bulletin/the-oversight-boards-dormant-power-to-review-facebooks-algorithms/.

115 See Evelyn Douek, The Facebook Oversight Board Should Review Trump’s Suspension, Lawfare (Jan. 11, 2021), https://www.lawfareblog.com/facebook-oversight-board-should-review-trumps-suspension.

116 Access to justice is a core component of the international rule of law. See Robert McCorquodale, Defining The International Rule of Law: Defying Gravity?, 65 Int’l & Compar. L. Q. 277 (2016).

117 The EU’s Digital Services Act package, if passed, would require big technology companies to provide independent grievance mechanisms to users. See especially Articles 17 and 18 in Proposal for a Regulation of the European Parliament and of the Council on a Single Market for Digital Services (Digital Services Act), COM (2022) 277 final (Oct. 19, 2022).

118 See generally Gulati, supra note 28.

119 The Oversight Board is already influencing Meta’s behavior. After the Oversight Board selected several cases for review, Meta reconsidered its conduct prior to the decision being rendered. See Shared Al Jazeera Post, Oversight Board, Case decision 2021-009-FB-UA (2021); Breast Cancer Symptoms and Nudity, Oversight Board, Case Decision 2020-004-IG-UA (2020); Öchlan’s Isolation, Oversight Board, Case decision 2021-006-IG-UA (2021); Punjabi Concern over RSS in India, Oversight Board, Case decision 2021-003-FB-UA (2021).