30/9/22, 14:55
Oversight Board | Independent Judgment. Transparency. Legitimacy.
d. Equality and non discrimination
Any restrictions on expression must respect the principle of equality and nondiscrimination (General Comment 34, paras. 26 and 32). Several public comments
argued Facebook’s policies on adult nudity discriminate against women.
Given that Facebook’s rules treat male and female nipples differently, the reliance on
inaccurate automation to enforce those rules will likely have a disproportionate impact on
women, thereby raising discrimination concerns (Article 1 CEDAW; Article 2 ICCPR). In
Brazil, and in many other countries, awareness raising of breast cancer symptoms is a
matter of critical importance. As such, Facebook's actions jeopardize not only women’s
right to freedom of expression but also their right to health.
II. Right to remedy (Article 2 ICCPR)
The Board welcomes that Facebook restored the content. However, the negative impacts
of that error could not be fully reversed. The post, intended for breast cancer awareness
month in October, was only restored in early December. Restoring the content did not
make this case moot: as the Board had selected this case, the user had a right to be heard
and to receive a fully reasoned decision.
The UN Special Rapporteur on freedom of opinion and expression identified the
responsibility to provide remedy as one of the most relevant aspects of the UNGPs as
they relate to business enterprises that engage in content moderation (A/HRC/38/35,
para. 11). Facebook’s over-reliance on automated enforcement, if there was no appeal,
failed to respect the user’s right to an effective remedy (Article 2, ICCPR;
CCPR/C/21/Rev.1/Add. 13, para. 15) or meet its responsibilities under the UN Guiding
Principles (Principles 29 and 31). The Board is especially concerned that Facebook does
not inform users when their content is enforced against through automation, and that
appeal to human review might not be available in all cases. This reflects a broader
concern at Facebook’s lack of transparency on its use of automated enforcement, and
circumstances where internal appeal might not be available.
9. Oversight Board Decision
9 1 Content Decision
https://www.oversightboard.com/decision/IG-7THR3SI1
13/16