New Regulatory Force of Cyberspace: The Case of Meta’s Oversight Board

• Published in: Masaryk University journal of law and technology Vol. 17; no. 1; pp. 3 - 32
• Main Authors: Mazur, Jan, Grambličková, Barbora
• Format: Journal Article
• Language: English
• Published: Masarykova univerzita nakladatelství 30.06.2023; Masaryk University Press
• Subjects: Commercial Law; EU-Legislation; Law, Constitution, Jurisprudence; Meta; purpose of the company; Digital Services Act; disinformation; quasijudicial power; regulation of cyberspace; Social media platforms; fake news; Oversight Board
• ISSN: 1802-5943; 1802-5951
• DOI: 10.5817/MUJLT2023-1-1

It’s been a few years since Facebook (Meta) instituted its Oversight Board as a new quasi-judicial and regulatory body of one of the most important contemporary cyberspaces. It’s long established that social media platforms, such as Facebook, pose certain challenges to democracies as they, among other issues, allow for spread of fake news and hate speech, shift our perception of reality, or create echo chambers. In reaction to talks of regulating similar platforms, Meta’s self-regulatory attempt of instituting the Oversight Board appears to tackle the issue of content moderation by the platform itself. As the content moderation is one of the main sources of Meta’s problematic reputation (taking down posts, pages of various more or less known persons), the board is potentially significant. The paper analyses the board’s mandate, governance structure and procedures. We look at standard elements of independence of decision-making bodies (such as courts) to establish whether the Oversight Board is structured in a way conducive to independent decision making. We conclude that that structure of the Oversight Board fulfils some of the elements of the de jure judicial independence, however there is a room for improvement. Independence of the Oversight Board from Meta is a vital element of the institution, however we detect connections and dependencies on Meta (Meta needs to agree on changes of the Charter as well as the Bylaws, Meta was profoundly involved in the initial selection of the members, etc.). The whole structure of Oversight Board is heavily impacted by the private law institutes – trust, company, contracts – which might not be able to fully facilitate all the needs of an independent quasi-judicial body. The private structure, lacking necessary participatory mechanisms, does not permit the Oversight Board to gain necessary legitimacy. We also review the Oversight Board’s setup in light of the EU’s 2022 Digital Services Act (DSA), which represents one of the most comprehensive regulations of the social media platforms, including content moderation issues. We conclude that the Oversight Board would also not be compliant with requirements set forth in the DSA. After the adoption of the DSA, a question of compatibility of the Oversight Board with the out-of-court dispute settlement bodies opened.