4/10/22, 10:47 Oversight Board | Independent Judgment. Transparency. Legitimacy. The Board has previously recognized that the Hate Speech Community Standard and the Violence and Incitement Standard pursue the legitimate aim of protecting the rights of others. Those rights include the rights to equality and non-discrimination (Article 2, para. 1, ICCPR, Article 2 and 5 ICERD) and exercise their freedom of expression on the platform without being harassed or threatened (Article 19 ICCPR). III. Necessity and proportionality For restrictions on expression to be considered necessary and proportionate, those restrictions “must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected” ( General Comment 34, para. 34). The Special Rapporteur on free expression has also noted that on social media, “the scale and complexity of addressing hateful expression presents long-term challenges” ( A/HRC/38/35, para. 28). However, according to the Special Rapporteur, companies should “demonstrate the necessity and proportionality of any content actions (such as removals or account suspensions).” Moreover, companies are required “to assess the same kind of questions about protecting their users’ right to freedom of expression” (ibid para. 41.). The Facebook Hate Speech Community Standard prohibits specific forms of discriminatory expression, including comparison to animals and calls for exclusion, absent any requirement that the expression incite violence or discriminatory acts. The Board, drawing upon the UN Special Rapporteur’s guidance, has previously explained that, while such prohibitions would raise concerns if imposed by a government at a broader level, particularly if enforced through criminal or civil sanctions, Facebook can regulate such expression, demonstrating the necessity and proportionality of the action (see the “ South Africa Slur” decision). The content in this case, comparing ethnic Serbs to rats and celebrating past acts of discriminatory treatment, is dehumanizing and hateful. The Board would have come to a similar conclusion about any content that targets an ethnic group in this way, especially in a region that has a recent history of ethnic conflict. The Board finds removing this content from the platform was necessary to address the serious harms hate speech on the basis of ethnicity poses. The Board considered the factors in the Rabat Plan of Action ( The Rabat Plan of Action, OHCHR, A/HRC/22/17/Add.4, 2013) to guide its analysis, while accounting for differences between international law obligations of states and human rights responsibilities of businesses . Meta has a responsibility to “seek to prevent or mitigate adverse human rights impacts that are directly linked to [its] operations, products or services” (UNGPs, Principle 13). In its analysis, the Board focused on the social and political context, intent, the content and form of the speech and the extent of its dissemination. Regarding the context, this relates to a region that has recently experienced ethnic conflict and the backdrop of online hate speech and incidents of discrimination against ethnic minorities in Croatia (see Section 8.1. under Violence and Incitement). It intends to incite ethnic hatred, and this may contribute to individuals taking discriminatory action. The form of the expression and its wide reach is also important. The video was shared by an administrator of a Page which, according to expert briefings the Board received, is a Croatian news portal known for anti-Serb sentiments. The cartoon video form can be particularly harmful because it is especially engaging. Its reach was broad. While the video was created by someone else, it is likely that the popularity of the page (which has over 50,000 followers) would increase the reach of the video, especially as it reflects the views of the page and its followers. The content was viewed over 380,000 times, shared over 540 times, received over 2,400 reactions and had over 1,200 comments. In the “South Africa Slur” decision, the Board decided that it is in line with Meta’s human rights responsibilities to prohibit “some discriminatory expression” even “absent any requirement that the expression incite violence or discriminatory acts.” The Board notes that Article 20, para. 2, ICCPR, as interpreted in the Rabat Plan of Action, requires imminent harm to justify restrictions on expression. The Board does not believe that this post would result in imminent harm. However, Meta can legitimately remove posts from Facebook that encourage violence in a less immediate way. This is justified, as the human rights responsibilities of Meta as a company differ from the human rights obligations of states. Meta can apply less strict standards for removing content from its platform than those which apply to states imposing criminal or civil penalties. In this case, depicting the Serbs as rats and calling for their exclusion while referencing historical acts of violence, impacts the rights to equality and non-discrimination of those targeted. This justifies removing the post. Many Board Members also believed that the content had a negative impact of the freedom of expression of others on the platform, as it contributed to an environment where some users would feel threatened. The Board finds that removing the content from the platform is a necessary and proportionate measure. Less invasive interventions, such as labels, warning screens, or other measures to reduce dissemination, would not have provided adequate protection against the cumulative effects of leaving content of this nature on the platform (for a similar analysis see the “Depiction of Zwarte Piet” case). https://www.oversightboard.com/decision/FB-JRQ1XP2M 10/11