United States of America

[US] Facebook bans Trump for 2 years

IRIS 2021-7:1/21

Kelsey Farish

Dac Beachcroft

Former U.S. President Donald Trump has been banned from Facebook for two years. In a blog post sharing the decision on 4 June 2021, Facebook committed to being more transparent about content moderation decisions, and about how such decisions impact individuals. Account holders will now be able to see if and when any of their content was removed, why, and what the penalty was. However, Facebook also called for “thoughtful regulation” from legislators, and explained that its internal policies were not a replacement for such legislation.

By way of background to the present case, a violent mob of thousands stormed the US Capitol Building in Washington, DC on 6 January 2021. Then-president Donald Trump made a video post in which he said, (inter alia): "I know your pain. I know you’re hurt. We had an election that was stolen from us. […] We love you. You’re very special. [...] I know how you feel. But go home and go home in peace." Approximately 90 minutes later, Facebook removed the video as it violated the platform’s policies on praising dangerous individuals and organisations. 

Mr Trump then shared, as a text post, the following: "These are the things and events that happen when a sacred landslide election victory is so unceremoniously and viciously stripped away from great patriots who have been badly and unfairly treated for so long. Go home with love in peace. Remember this day forever!"

Facebook removed the post ten minutes later, and then imposed a 24-hour restriction of Mr Trump’s posting privileges. In light of his public statements in the following hours with respect to the Capitol riots, Facebook extended the restriction "indefinitely and for at least the next two weeks until the peaceful transition of power is complete".

Facebook’s decision to ban Mr Trump was referred to the Facebook Oversight Board on 21 January, the day after current President Joe Biden was safely inaugurated. The board is an independent, quasi-judicial body established in 2018 to ensure Facebook’s processes comply with its policies and legal obligations.

In its decision of 5 May 2021, the board upheld Facebook’s decision to suspend Mr Trump’s access in principle. However, Facebook’s decision to impose an “indefinite” ban was deemed improper, as such a penalty is neither clear nor consistent with Facebook’s rules for severe violations. Instead, the board emphasised that the appropriate penalty should be either content removal, time-bound period of suspension, or permanent account deletion (see IRIS 2021-2/33)

On 4 June, Nick Clegg, Facebook’s VP of Global Affairs, posted the company's response to the board by way of a blog post entitled “In Response to Oversight Board, Trump Suspended for Two Years; Will Only Be Reinstated if Conditions Permit”. In the blog, Mr Clegg noted that “the board instructed us to review the decision and respond in a way that is clear and proportionate, and made a number of recommendations on how to improve our policies and processes”. 

Mr Clegg acknowledged that any penalty Facebook applies, or indeed chooses not to apply, will be controversial. Some people believe it is not appropriate for a private company to suspend an influential political leader from its platform, whereas others believe Mr Trump should have “immediately been banned for life”.

The politics aside, the decision of the board in May as well as Facebook’s own statement in June solidify the platform’s commitment to following three key types of documentation when it comes to regulating content. 

Firstly, Facebook will adhere to its internal policies, such as its Facebook’s Community Standards and Terms of Use. Secondly, it will also turn to its corporate values, to include "voice", "safety", and "dignity". Thirdly but no less importantly, Facebook will refer to international legal standards such as the UN Guiding Principles on Business and Human Rights, and the International Covenant on Civil and Political Rights. 

That said, Facebook appears to prefer avoiding content moderation decisions itself. Instead, Mr Clegg emphasised that absent “frameworks agreed upon by democratically accountable lawmakers, the board’s model of independent and thoughtful deliberation is a strong one that ensures important decisions are made in as transparent and judicious a manner as possible”. However, he continued, “the Oversight Board is not a replacement for regulation, and we continue to call for thoughtful regulation in this space”.


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This article has been published in IRIS Legal Observations of the European Audiovisual Observatory.