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Oversight Board Says Facebook Must Revisit 'Arbitrary' Indefinite Trump Ban


Facebook's Oversight Board decided yesterday that the company was justified to suspend then-President Donald Trump's Facebook account after a mob of his supporters stormed the U.S. Capitol last January. However, the board said that Facebook was trying to avoid its responsibility by suspending Trump indefinitely and then asking the board to decide if that ban should be permanent. This oversight board was created to help Facebook answer tough questions around freedom of expression online. Thomas Hughes is the director of the Oversight Board Administration. He is not a voting member of the board. And he joins us now. We should note that Facebook is a financial supporter of NPR.

Thomas Hughes, welcome.


CHANG: So tell us, why did the board say that Facebook needs to make its own decision about whether to ban Trump permanently? Like, why did the board feel it could not make the call ultimately on its own as the oversight board?

HUGHES: Well, the decision itself has a number of facets, but one of the core criteria that the board has looked at is the protection of free speech. And underpinning those protections are the fact that Facebook must make decisions that are transparent, that they are accountable for those and that they have a clear set of rules and penalties that can be understood by all users. That's a clear criteria in international human rights standards. So the board very clearly said that the suspension of Donald Trump was necessary to keep people safe. It very clearly said President Trump's actions encouraged and legitimized violence and was a severe violation.

But at the same time, it was very clear in saying that this was an arbitrary penalty and that Facebook was acting with too much discretion and that within six months, it needed to re-examine that indefinite suspension and impose a penalty that was both consistent with that severity of the act itself but also looked at the prospect of future harm. And then in addition to that, of course, they've made a number of very, very clear, I think, very precise recommendations that speak to what Facebook should do in future cases and what sort of suspensions should be applied in those cases.

CHANG: Why is the board simply disseminating recommendations and not a decision telling Facebook exactly what it should do with respect to former President Trump, whether that ban should be permanent?

HUGHES: Sure, so the decision has two components. It has a binding element, and it has recommendations. That's the same for all the decisions that the oversight board has taken. The binding element of the decision is that an indefinite suspension is not consistent with international human rights standards, and it must go back and apply a proper penalty that is consistent with its rules and considers the future prospect of harm. So there's both a binding component that says very clearly what Facebook must do next vis-a-vis former President Trump, but there's also a set of recommendations that say more broadly what it might do in similar cases with other individuals in other countries potentially. Now, as you've pointed out, the recommendations are not binding. But in previous decisions, you know, Facebook has responded, I would say, very well to those - to recommendations in previous decisions.

CHANG: This decision by the board, it has reinforced ongoing criticism against Facebook that the platform is biased against conservatives. That's a claim many on the right have made for years without evidence. What's your reaction to that?

HUGHES: I think the board's decision here actually speaks to that issue in quite a core way. I think those accusations are borne of a situation in which people don't fully have clarity or understand the internal decision-making processes that Facebook goes through. And if an arbitrary penalty is applied, one that's novel and doesn't exist in the rules, that reinforces that. So I think there needs to be consistency. There needs to be clarity, and there needs to be transparency.

CHANG: I hear you try to differentiate between recommendations and binding aspects of the board's decision. But what I don't get is how binding any part of the board's decisions is because, yes, I get that Facebook agreed that decisions that are deemed to be binding will be binding on Facebook. But the board exists at the will of Facebook ultimately, so how binding is any of this on the company?

HUGHES: The decisions are binding. The oversight board obviously has a legal agreement, an underpinning with Facebook, and those are consistent with the bylaws. And within those, it's very clear that the decision that the board takes is binding on Facebook. Then there's the structural issues of independence. And then beyond that, of course, there's the individual board members themselves...

CHANG: Right. But those structural issues are everything, right? If Facebook created the board, Facebook could also dissolve the board. So how binding ultimately is anything the board decides?

HUGHES: No, Facebook can't dissolve the board. So there is a trust in place, and obviously the trust holds the funds, and there are a group of trustees. And they are the guarantors in that sense of the arm's-length relationship between the board and Facebook. So Facebook cannot appoint board members. It cannot remove board members. It cannot remove the funds that have been put into the trust. It's legally obliged to implement the binding components of decisions. You know, as much as at all possible when we talk about the creation of a, you know, properly, you know, independent, self-regulatory structure, I think this structure does embody that.

CHANG: But if this board abdicates final authority on cases like former President Trump, on whether a ban on former President Trump should be permanent, what does that suggest about the board's ultimate role in checking Facebook's power when it comes to influencing speech online?

HUGHES: So the Facebook - sorry, the board has not abdicated any of its responsibility. It's made a very clear, I think, very strong decision. And the clear decision is that an indefinite suspension is not consistent with free expression standards and that Facebook must go back and re-examine those. And that is a decision which has incredible meaning and importance, not only specifically to this case but to how Facebook looks at every other case in the future.

CHANG: Thomas Hughes is the director of Facebook's Oversight Board Administration.

Thank you very much for joining us today.

HUGHES: It's a pleasure. Thank you very much for having me.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

Ailsa Chang is an award-winning journalist who hosts All Things Considered along with Ari Shapiro, Audie Cornish, and Mary Louise Kelly. She landed in public radio after practicing law for a few years.
Amy Isackson

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