By now much has been said (and not said) about the appointment of the “impressively impressive” 20 members of Facebook’s Oversight Board (FOB). The FOB is the global body that will decide hard cases of content moderation on Facebook and Instagram. The current FOB membership has been described to be diverse and “politically balanced,” generating limited review on representation from the usual observers. I am part of the minority that views the current membership as insufficiently representative, particularly of Southeast Asia, and overwhelmingly American for a body that purports to be global and independent of Facebook. Among other grounds, this is striking given the circumstances that have fueled the creation of the board.
Following Facebook’s announcement of members, most criticism focused on the FOB’s institutional design, not on its cast of characters: that the FOB’s jurisdiction is limited; that decisions will be based mainly on Facebook’s values and “Community Standards,” rather than international human rights law; that self-regulation is not enough.
The story of Myanmar still (rightly) figured in some of the commentary. Myanmar was emblematic of content moderation gone wrong, where ultranationalist monks and political leaders used Facebook to incite discrimination and violence against the Rohingya. The Rohingya crisis has broken ground in the field of international law. Unprecedentedly, it is now the subject of an International Criminal Court investigation, a separate United Nations investigative mechanism (the Independent Investigative Mechanism for Myanmar), and an International Court of Justice proceeding between The Gambia and Myanmar concerning the latter’s alleged violation of the Genocide Convention. In 2018, as the Cambridge Analytica scandal was unraveling, so was Facebook’s inefficient content moderation of anti-Rohingya posts. This was duly reported by the U.N. Fact-Finding Mission on Myanmar. Unsurprisingly, Mark Zuckerberg mentioned Myanmar in his plan to create the FOB in late 2018. The hope was that the FOB would help prevent a similar set of incidents from happening.
It’s clear that what happened in Myanmar exemplified a major aspect of the shortcomings the FOB was created to solve.
Where is Southeast Asia in the FOB?
Of the board’s 20 members, one person is from Southeast Asia – Endy Bayuni, a veteran newspaper editor from Indonesia. Under the FOB’s by-laws, the board’s geographic grouping is divided into the United States and Canada; Latin America and Caribbean; Europe; Sub-Saharan Africa; Middle East and North Africa; Central and South Asia; and Asia Pacific and Oceania (article 1, section 1.4.1). Along with Bayuni, Katherine Chen, a communications expert from Taiwan, and Nicolas Suzor, a legal scholar from Australia, presumably comprise the Asia Pacific and Oceania group (to distinguish, Nighat Dad (Pakistan) and Sudhir Krishnaswamy (India) represent the Central and South Asia group). These appointments are a good development, but not enough if considered together with other factors.
According to the FOB’s founding Charter and by-laws, the “ideal size” of the board is 40, but the required minimum is only 11 (Charter article 1, section 1 and by-laws article 1, section 1.4). On this basis, there is no requirement for the FOB to go beyond the current slate of 20 members, though subsequent changes are allowed if necessary. There is no quota required from each geographic bloc, in contrast to the rule in international institutions guaranteeing equitable geographic representation. The FOB can operate even if its geographic balance fails to encompass all regions. If this happens, it must fulfill geographic representation requirements “expeditiously, within a maximum of six months” (by-laws, article 1, section 1.4.1), bringing with it six months’ worth of content and cases.
Of the 20 members, five come from the United States (25%). Of the four co-chairs, two come from the United States (50%). The current makeup might be justified if most content escalation comes from the United States, as Facebook has represented. A five-member panel must decide each case, and one member of that panel must be from the geographic region which the content in question primarily affects (by-laws, article 1, section 3.1.3). However, the fact that less content gets escalated from Southeast Asia should not be taken to mean that there are fewer problems in the region. For example, in a study published in early 2018, scholars found advertising strategists managing troll armies on Facebook to seed disinformation narratives to influence the 2016 Philippine presidential elections, which saw President Rodrigo Duterte’s victory. The relatively fewer complaints emanating from Southeast Asia may well reveal the inadequate procedures and outreach that have characterized Facebook’s operations in the region.
The premise that most user complaints come from the United States may change as the FOB begins its work. As of 2016, Southeast Asia was Facebook’s “fastest growing” region. By 2019, four of the top 10 countries with the largest Facebook audience globally are Southeast Asian countries: Philippines, Malaysia, Thailand, and Singapore. In terms of Facebook’s global reach rankings, four out of the top 10 countries again come from Southeast Asia: Indonesia, Philippines, Vietnam, and Thailand. Among the top ten largest absolute increases in Facebook audience worldwide last year were the Philippines and Malaysia. The United States and Canada, the geographic bloc with the most representatives on the FOB, have the lowest number of monthly and daily active Facebook users, while Asia Pacific has the most active. Globally, Philippines, Indonesia, and Thailand are among the top ten countries with users spending the most time daily on social media, with the Philippines ranking first overall (four hours per day).
All this data indicates the chance of large numbers of cases being escalated to the board from Southeast Asia (if Facebook users from the region know about the existence of the FOB, that is). These numbers matter. One filter for case selection is the large scale of users affected by the impugned content, as well as its impact on public discourse (by-laws, article 2, section 2.1.1).
Under the by-laws, co-chairs possess additional powers to sit as chairs of the case selection and membership committees. Co-chairs may participate in the management of the FOB administration, which will include hiring of staff (article 1, section 1.1.1). Co-chairs can thus shape the kinds of cases to be decided by the board, including which cases must be prioritized (article 1, section 1.2.1). The co-chairs’ orientation on markers of professional excellence can influence the board’s staffing. FOB members who become part of the case selection committee will develop standards for choosing cases. FOB members who become part of the membership committee will develop standards for screening prospective FOB members (article 1, section 1.2).
These constitutive powers reveal the necessity of geographic diversity at the outset. Diversity will help ensure that the complexity of a broad range of problems is factored in as the FOB develops internal rules and policies. This is crucial to help prevent a situation like what happened in Myanmar. The by-law permitting country expert submission once a case is selected for review (article 1, section 3.1.4) does not address this need.
Significantly, a more representative body can counteract the common refrain in Southeast Asian states relating to foreign interference and perceived bias against “Asian values.” This may arise when content primarily affecting the region is taken down by the FOB, rendered more palpable when state actors use the platform and thereby become subject to the FOB’s remit. This is a real possibility, as I have discussed here, here, and here. In 2018, Myanmar’s Commander-in-Chief was banned from Facebook for anti-Rohingya posts.
Who is the legal expert on the FOB?
The disproportionate geographic representation is apparent not only in the overall membership but also in terms of expertise, particularly, legal expertise. Whether rightly or wrongly, lawyers comprise a supermajority of the FOB. Among lawyers, only one comes from Asia Pacific and Oceania (from Australia). Based on profiles posted on the FOB’s “Meet the Board” page, four of the ten law professors on the board are American. Of the six constitutional law professors, three (50%) are American. When law professors are combined with practitioners, the data reflects better diversity with representatives from the various geographic blocs. No legal expert comes from Southeast Asia despite Facebook’s strong presence in the region.
One may ask, what does it matter where these legal experts come from if the FOB will apply the same set of rules anyway, whether Facebook’s Community Standards or international human rights law?
Well, a lot. To the international lawyer, this issue may seem familiar. In her award-winning book, Is International Law International?, Anthea Roberts exposed how the “invisible college of international lawyers” is in fact divisible and siloed. According to Roberts, one’s legal tradition heavily influences the way international law is understood, interpreted, and applied by the international lawyer. A lawyer’s socialization into a particular legal system reinforces that legal system’s “concepts, approaches, and sources” in her application of international norms.
International human rights law is no exception to this dynamic. As international speech trials show, speech arbiters must apply the “law”– whether Facebook’s Hate Speech policy or international law – and evaluate the resonance of the speech in question with the intended audience. This not only turns to the local context of the listener. The legal orientation of the speech arbiter also bears on how she will apply international norms to the facts. Better representation would shield the board from anticipated criticism arising from the application of these norms.
Of course, diversity should not be pursued at the expense of other qualifications. However, the current makeup of the FOB can stoke perceived biases if more legal experts come from Facebook’s least active geographic bloc, rather than its most active. The predominance of one country in constitutional law expertise sends a signal concerning which kind of constitutional law expertise matters. To the international lawyer, this issue may seem familiar. The field is replete with critique on how legal expertise exposes power asymmetries in knowledge production, with the result of privileging particular actors and countries. Can a middle ground be found between many and none?
Despite being absent in much of the commentary, there is one important figure to whom the lack of representation does seem to matter: Facebook. During the press call, Facebook mentioned the insufficient representation of Southeast Asia in the FOB. Fortunately, there’s room for more members. Still, with the way the by-laws are currently drafted, and as the initial appointment shows, nothing significantly constrains the FOB to be proportional in geographic representation either.
Facebook said it wants this experiment to succeed. If so, it must make the FOB truly reflective of the world, including the perspectives and approaches the world brings.