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30/9/22, 14:55 Oversight Board | Independent Judgment. Transparency. Legitimacy. While Facebook publicly welcomed the Board’s review of this case, Facebook proposed that the Board should decline to hear the case in its filings before the Board because the issue is now moot. Facebook argues that, having restored the content, there is no disagreement that it should stay on Instagram and that this is a requirement for a case to be heard, according to Article 2, Section 1 of the Board’s Charter: in instances where people disagree with the outcome of Facebook’s decision and have exhausted appeals, a request for review can be submitted to the Board. The Board disagrees, and interprets the Charter to only require disagreement between the user and Facebook at the moment the user exhausts Facebook’s internal process. This requirement has been met. The Board’s review process is separate from, and not an extension of Facebook’s internal appeals process. For Facebook to correct errors the Board brings to its attention and thereby exclude cases from review would integrate the Board inappropriately to Facebook’s internal process and undermine the Board’s independence. While Facebook reversed its decision and restored the content, irreversible harm still occurred in this case. Facebook's decision to restore the content in early December 2020 did not make up for the fact that the user's post was removed for the entire "pink month" campaign in October 2020. Restoring the content in this case is not the only purpose of the remedy the Board offers. Under Article 4 (Implementation) of the Board’s Charter, and Article 2, Section 2.3.1 (Implementation of Board Decisions)of the Bylaws, Facebook is committed to take action on “identical content with parallel context”. Thus, the impact of the Board taking decisions extends far beyond the content in this case. Moreover, a full decision, even where Facebook complies with its outcome in advance, is important. The Board’s process offers users an opportunity to be heard and to receive a full explanation for why their content was wrongly removed. Where content removal is performed entirely through automation, the content policies are essentially embedded into code and may be considered inseparable from it and self-enforcing. Hearing the case allows the Board to issue policy advisory statements on how Facebook’s content https://www.oversightboard.com/decision/IG-7THR3SI1 5/16

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Oversight Board Case of Breast Cancer Symptoms and Nudity

Case Law

Country

Brazil

Country Location

Latitude: -9.531069703582213

Longitude: -52.923056365109474

Country Location (linked Case Law): Brazil

Decision Date: Jan 28, 2021

Case Status: Closed

Case Outcome (Disposition)

Overturned Meta’s initial decision

Keywords

Instagram Community Guidelines>Hate Speech, Bullying and Abuse

Judicial Body: Meta's Oversight Board

Court Name: Oversight Board

Case Number: 2020-004-IG-UA

Case Summary: On January 28, 2021, the Oversight Board overturned Facebook’s (now Meta) decision to remove a post on Instagram with images of visible and uncovered female nipples intended to raise awareness about breast cancer and its symptoms. Facebook removed the post through an automated machine-learning classifier, enforcing Facebook’s Community Standards on Adult Nudity and Sexual Activity. Although Facebook restored the post recognizing an enforcement error, the Board issued a decision on the matter. It argued that Facebook’s decision did not comply with its Community Standards since adult nudity is allowed for educational and medical purposes such as raising awareness about breast cancer. Likewise, the Oversight Board considered that Facebook’s original decision affected the users’ right to receive information about health-related issues and disproportionately impacted women, raising discrimination concerns.

*The Oversight Board is a separate entity from Meta and will provide its independent judgment on both individual cases and questions of policy. Both the Board and its administration are funded by an independent trust. The Board has the authority to decide whether Facebook and Instagram should allow or remove content. These decisions are binding, unless implementing them could violate the law. The Board can also choose to issue recommendations on the company’s content policies.

Case Significance: By overturning Facebook’s decision to remove content intended to raise awareness about breast cancer, the Oversight Board widens the scope of freedom of expression, while protecting access to information, the right to health, and women’s rights to nondiscrimination on an issue of the utmost relevance regarding public health. The Board’s decision also strengthens freedom of expression by recommending that Facebook implement safeguards, such as human review, on automated content moderation. By urging the company to be more transparent about the efficacy of its automated content removal, the Board also fosters a better environment for freedom of expression online.

The decision establishes a binding or persuasive precedent within its jurisdiction.

According to Article 2 of the Oversight Board Charter, “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.” In addition, Article 4 of the Oversight Board Charter establishes, “The board’s resolution of each case will be binding and Facebook (now Meta) will implement it promptly, unless implementation of a resolution could violate the law. In instances where Facebook identifies that identical content with parallel context – which the board has already decided upon – remains on Facebook (now Meta), it will take action by analyzing 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 (now Meta) will take further action by analyzing the operational procedures required to implement the guidance, considering it in the formal policy development process of Facebook (now Meta), and transparently communicating about actions taken as a result.”

Related Caselaw (self)

Source URL: Columbia Global Freedom of Expression

Collection

Columbia

Date Updated: Nov 14, 2024

Primary Documents

Decision (in English).pdf
English
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CYRILLA: Global Digital Rights Law

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Oversight Board Case of Breast Cancer Symptoms and Nudity

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