Americans may wake up on Wednesday May 5 to discover a ghost on their favorite social network.
Facebook's Supervisory Board must announce at 9 a.m. (3 p.m. in Paris) if Donald Trump can again speak on the platform to nearly three billion users worldwide.
The case of the former US president represents a key test for this young structure, dubbed the "supreme court" of Facebook, which was established by Mark Zuckerberg in October 2020 to deal with the most thorny and controversial moderation cases .
The Oversight Board will announce its decision on the case concerning former US President Trump on its website at https://t.co/NNQ9YCrcrh on May 5, 2021 at approximately 9:00 am EDT.
- Oversight Board (@OversightBoard) May 3, 2021
A "council of the wise" to respond to criticism
It is difficult, in fact, to venture down a more slippery path than that of the fate reserved by social networks for Donald Trump after the assault led by his supporters against the Capitol in Washington on January 6. Facebook's decision to ban him "indefinitely" - for posting a video calling on the attackers to return home, while adding that he "liked them very much", had earned the social network criticism from all sides. For some, Facebook had reacted late, allowing the leader to distill his hateful messages for far too long, while others considered that the censorship of a head of state, as controversial as it was, was a dangerous precedent.
Mark Zuckerberg admitted that he expected to see the sanction against Donald Trump challenged.
"Many people have said that a private company should not make this kind of decision alone. We agree," said the CEO of Facebook.
This is the reason why the group seized its "supreme court".
After all, isn't that the reason for this structure?
The genesis of the Supervisory Board of Facebook dates back to 2018. The social network was then criticized from all sides.
He is mired in the Cambridge Analytica scandal - which involved a huge leak of personal data used for political propaganda - while memories of the Russian campaign on Facebook to influence the 2016 US presidential election remain alive.
The concept of an independent "council of wise men" which would act as a sort of quasi-tribunal was then suggested to Mark Zuckerberg by Noah Feldman, a professor of law at Harvard University, known to have helped write the short story. Iraqi constitution after the American invasion of the country in 2003. The boss of Facebook jumps at the idea. "He felt like he could no longer handle product development and had to devote all of his energy to dealing with policy issues," said Kate Klonick, a lawyer at Saint John's University who was authorized by Facebook. to follow the development of this "supreme court", in an article in the New Yorker. A Supervisory Board would relieve it somewhat.
After months of consultations around the world, Facebook has managed to bring together a committee of twenty experts from different countries and from academia, journalism and associations.
These "judges" are, of course, not unanimous in the United States.
The conservatives denounce a panel "too left".
Donald Trump even personally telephones Mark Zuckerberg to complain about the appointment of Pamela Karlan, a lawyer who testified against him during the first impeachment trial.
Democrats also have grievances, especially regarding the presence of a former judge who in 2000 defended the right of boy scouts to exclude homosexuals from their ranks.
Decisions that are binding on Facebook
Mark Zuckerberg is holding on.
It is these 20 experts who, since October 2020, have the difficult task of ultimately deciding whether the social network was right to censor content or not.
The Supervisory Board can be contacted by Facebook or users who consider themselves wronged.
In the latter case, it is the experts who decide whether the grievance is legitimate and worth considering.
For each case, Facebook then designates five committee members who will be responsible for deciding.
Their names are kept secret "in order to avoid any lobbying", explains the Washington Post.
They then have 90 days to reach a conclusion, submitted to the rest of the members of the Supervisory Board who can only oppose it by a majority vote.
Their decision is binding on Facebook.
These experts have already started to censor the censorship of the social network.
They forced him, at the end of January, to put back online a message posted in France which praised hydroxychloroquine, the very controversial treatment against Covid-19 which had its heyday in 2020. They also overturned the decision to remove a publication containing a quote attributed to Joseph Goebbels, the famous propaganda minister of Nazi Germany during World War II.
The first decisions that suggest that this "supreme court" has a fairly generous conception of freedom of expression, judge Evelyn Douek, a Harvard law professor, on the Law Fare blog.
Will it be the same with Donald Trump?
The case is much more sensitive.
"This is the first time that a private actor has thus limited the possibility for a Head of State to make his political voice heard", underlines Eliska Pirkova, who is in charge of governance issues for Internet platforms for AccessNow, an association defense of freedom of expression online, contacted by France 24.
A decision that goes beyond the case of Donald Trump
The experts of the Supervisory Board are also aware that they have no room for error in this matter.
They were due to render their decision at the end of March, but requested and obtained additional time because of the "very sensitive" nature of this issue.
They know that this long-awaited decision will be an opportunity for them to respond to the main criticism addressed to them: that of independence. "They are certainly all recognized experts in their field, but the fact remains that they are linked to Facebook and, as such, there will always be doubts about the transparency of their decision", explains Eliska Pirkova .
The Trump case will have to allow them - or not - to prove that they are legitimate to be the supreme judges of what is allowed to be said or not on the most powerful of social networks. Especially since alternatives have been proposed, such as the creation of an "International Council of Social Media", promoted in particular by David Kaye, the former UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression. An organization which, for its part, would have no link with Facebook, but which the Californian group does not want.
Beyond questions of legitimacy, the decision of this Supervisory Board will "have repercussions far beyond the case of Donald Trump", underlines the Washington Post.
If these experts validate the sanction pronounced by Facebook, it is "a way of recognizing in this private company the right to censor anyone", underlines Martin Moore, director of the center for media studies at King's College London, contacted by France 24.
Facebook loser regardless of the decision
But on the other hand, if they let him come back, "it leaves the field open to him to use Facebook in order to continue to destabilize American democracy," adds this expert.
According to him, other leaders with populist tendencies could step into the breach and consider that they now also have the right to use this platform to "disseminate hateful content".
So there is no good end to this story for Mark Zuckerberg, notes Martin Moore.
"Facebook loses in both cases, because whatever the decision of the Supervisory Board it will only underline that this social network has too much influence on the public debate at the international level", he concludes.
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