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.
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