Instagram Community Guidelines, Referal to Facebook Community Standards, Facebook Community Standards, Violence And Criminal Behavior, Restricted Goods and Services
Oversight Board Case of Ayahuasca Brew
Closed Expands Expression
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The Oversight Board overturned Meta’s original decision to remove content from Facebook, posted in a private group that claims to be for adults with attention deficit hyperactivity disorder (ADHD). In the post, the user asked how to approach a doctor for a prescription for the medication Adderall (dextroamphetamine and amphetamine). The user had been prescribed a different medication and wanted to be prescribed Adderall. Their post sought advice from other people with ADHD. In August 2021, Meta removed the content under Facebook’s Restricted Goods and Services Community Standard. After the removal, Meta restricted the user’s account for 30 days. The Board concluded that the content did not violate Facebook’s Community Standards since the Restricted Goods and Services Community Standard does not prohibit seeking advice about pharmaceutical drugs in medical contexts. The Board also considered that the measure issued by Meta was both unnecessary and disproportionate, in part because there was no direct or immediate connection between the deleted content and the possibility of harm.
*The Oversight Board is a separate entity from Meta and will provide its independent judgment on both individual cases and questions of policy. Both the Board and its administration are funded by an independent trust. The Board has the authority to decide whether Facebook and Instagram should allow or remove content. These decisions are binding, unless implementing them could violate the law. The Board can also choose to issue recommendations on the company’s content policies.
A Facebook user who identified as someone with ADHD asked for advice in a private group that claims to be for adults with the same condition. The content was posted in June 2021 and consisted of the user’s concerns regarding how to ask their doctor to prescribe them Adderall. They mentioned that they were given “a Xanax prescription but that the medication Adderall has worked for them in the past, while other medications zombie me out” [p. 3]. The user explained in the post that they worried their doctor might think they had drug-seeking behavior. Facebook group members reacted by giving advice and sharing their own experiences.
No users reported the content, and it was not sent for human review. However, in August 2021, the post “was selected as part of a random sample to be used for training Meta’s classifier technology” [p. 4] and a human reviewer labeled the content as violating the Restricted Goods and Services Community Standard. Under this policy, Meta takes down content that attempts to “buy, sell or trade pharmaceutical drugs…[or] asks for pharmaceutical drugs except when content discusses the affordability, accessibility or efficacy of pharmaceutical drugs in a medical context” [p. 5]. The post was accordingly taken down.
Meta upheld the original decision to remove the content even after the user appealed the decision. The user then proceeded to submit an appeal directly to the Oversight Board. Following the selection of the case by the Board, Meta restored the content in September 2021, claiming that it was an “enforcement error” [p. 6]. Due to the removal of the post, the user’s account was banned from performing several of the functions allowed by the platform. According to the Board, when it was removed, the content “had been viewed over 700 times and it had not been shared” [p. 7].
The Oversight Board analyzed whether Meta’s decision to remove a post, in which a user asked in a private Facebook group how to approach a doctor for a prescription of Adderall, was correct under the company’s Restricted Goods and Services Policy. The Board also assessed through a three-part test to determine whether this measure complied with human rights standards.
The user identified themselves as someone with ADHD and said that their post sought advice on how to talk to a doctor about medications “as they did not want their doctor to think that they were selling or abusing them. They were nervous about the conversation and wanted to know how to ask appropriately and cautiously” [p. 8].
For its part, in its submission to the Board, Meta stated: “that the original content removal had been in error” [p. 8]. Meta acknowledged that the post concerned pharmaceutical drugs, as opposed to non-medical drugs, and that it did not ask for drugs. Meta considered that the user was merely requesting advice; the user’s post “did not violate the Restricted Goods and Services policy” [p. 8].
Compliance with Community Standards
The Board concluded that Meta’s original decision to remove the post did not comply with the Facebook Community Standards. The user was asking for advice regarding the accessibility of a “pharmaceutical” drug, which is different from a “non-medical” one. The post used the words Adderall and Xanax in a medical context and was not attempting to buy, sell, trade, donate or ask for any of these drugs. Following the Restricted Goods and Services Community Standard, users can “seek advice on pharmaceutical drugs in the context of medical conditions” [p. 10].
Compliance with Meta’s values
The Board determined that Meta’s original decision to remove the content was not consistent with Meta’s values. The purpose of the Restricted Goods and Services Community Standard is to balance the “Voice” and “Safety” values. A user asking for advice regarding a pharmaceutical drug for the treatment of a medical condition is not violating the “Safety” value. Additionally, the Board noted the relevance of “Dignity” and remarked that restricting “Voice” by deleting content related to medication for certain conditions due to enforcement errors may disproportionately affect people with those conditions.
Compliance with Meta’s human rights responsibilities
The Board analyzed whether Meta complied with its human rights responsibilities according to various international human rights standards, such as those found in the UN Guiding Principles on Business and Human Rights (UNGPs), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of Persons with Disabilities (CRPD). Considering article 19, para. 2 of the ICCPR, article 1, 21 of the CRPD, and article 12 of the ICESCR, the Board stated that the broad protection for expression provided by these instruments applies to persons with disabilities, and more specifically, they should be able to exercise it under equal conditions with others. In this case, the user stated that they are an ADHD patient, indicating that they may be considered a user with a disability. After applying the three-part test, the Board concluded that Meta’s decision to remove the post was inconsistent with human rights standards.
The Board remarked that human rights standards state that “any rules restricting expression must be clear, precise, and publicly accessible” [p. 12]. In this sense, users should be able to know if and how their speech may be limited so that they can act accordingly. After examining the content under the Facebook Community Standard on Restricted Goods and Services, the Board concluded that they are not “sufficiently comprehensible and transparent to users” [p. 12]. This policy includes prohibiting content related to non-medical and pharmaceutical drugs, among others. The explanation and definition of these classifications are not available to the public, moderators confidentially and internally use them.
According to the internal definitions shared by Meta with the Board, “Adderall and Xanax could fall under either non-medical drugs or pharmaceutical drugs, depending on factors such as the intended use of the drug in the circumstances of each particular case” [p. 13]. However, the Board noted that this classification is not provided in the Community Standards and, therefore, would not be apparent to users. Additionally, the Board received public comments stating that “content attempting to sell the very same drugs has remained on Facebook” [p. 13]. The Board observed that these inconsistencies in enforcement could cause confusion about what was permitted on Facebook.
II. Legitimate aim
The Board found that limiting expression to reduce the risk of drug abuse among Facebook users is a legitimate aim that seeks to protect public health and the rights of others to health, which are two of the legitimate aims listed in Article 19, para. 3 of the ICCPR.
III. Necessity and proportionality
The Oversight Board concluded that Meta’s interference with the user’s freedom of expression was unnecessary. The Board did not find any direct or immediate connection between the content and the possibility of harm since the user was just asking for advice on accessing a certain medication.
Moreover, the Board deemed Meta’s removal of the user’s post disproportionate. It underscored that the clear intention of the user, coupled with the content warning they had included in the post, was sufficient to address risks of abuse and potential harm to public health. Further, it noted that the removal of health-related content could make it difficult for users who rely on Facebook “to learn more about their condition and engage in discussions about potential treatments” [p. 14].
Access to effective remedy
The Board stated that “article 2 of the ICCPR guarantees an effective remedy for anyone whose rights enshrined in the ICCPR have been violated” [p. 14]. Because the user received a 30-day feature limit to their account, the Board concluded that Meta failed in its responsibility to provide an effective remedy. The user was punished for “seeking information on how to speak with medical professionals about their medical condition” [p. 14]; this punishment was not reversed until the Board selected the case, nor was it remedied.
Policy advisory statement:
The Board recommended that Meta publish its internal definitions of “non-medical drugs” and “pharmaceutical drugs” in the Facebook Community Standard on Restricted Goods and Services, so they are available to every user. The Board stated that the definitions should: “(a) make clear that certain substances may fall under either ‘non-medical drugs’ or ‘pharmaceutical drugs’ and (b) explain the circumstances under which a substance would fall into each of these categories” [p. 15]. The Board will consider this recommendation implemented when the suggested changes are made to the Community Standard.
Additionally, the Board made two more recommendations. First, that Meta should investigate the “consequences and trade-offs of implementing a dynamic prioritization system that orders appeals for human review” [p. 15] and that account restrictions should be considered when said system is being made. Second, that Meta should “conduct regular assessments on reviewer accuracy rates focused on the Restricted Goods and Services policy” [p. 15]. The results from these studies must be shared in the quarterly Board transparency report. The Board would consider these recommendations implemented when Meta shares the results of these assessments.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression because the Oversight Board concluded that the broad protection for expression provided by international human rights instruments applies to persons with disabilities, and more specifically, they should be able to exercise it under equal conditions with others. Therefore, restrictions on the use of non-medical and pharmaceutical drug names should be more carefully applied and cannot be ambiguous. Users should not be punished for asking for advice regarding medication use because that would violate their freedom of expression and may impact their dignity. Moreover, the Board recommended that Meta be more cautious with its content moderation processes so that they do not infringe on people with disabilities’ right to access information.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The Board used Article 19 of the ICCPR as a legal basis that provides broad protection for freedom of expression through any media and regardless of frontiers. It also used it to apply the three-part test of legality (clarity), legitimacy, and necessity and proportionality.
The Board used General Comment No. 34 as the legal basis to apply the three-part test.
The Board used the report A/HRC/38/35 as the legal basis to decide if the user had access to effective remedies for human rights impacts.
The Board used articles 1 and 21 of the CRPD as the legal basis that ensures the protection of freedom of expression of people with disabilities.
The Board used articles 1 and 21 of the CRPD as the legal basis that ensures the protection of freedom of expression of people with disabilities.
The Board used article 12 of the ICESCR as the legal basis that justifies access to health-related education and information as a critical part of the right to health.
The Board used General Comment No. 14 as the legal basis that justifies access to health-related education and information as a critical part of the right to health.
The Board used article 2 of the ICCPR as the legal basis for the right to access to effective remedies for human rights impacts.
The Board used General Comment No. 31 as the legal basis to decide if the user had access to effective remedies for human rights impacts.
The Board used the UNGPs as the legal basis of Meta’s commitment to respect human rights.
Case significance refers to how influential the case is and how its significance changes over time.
According to Article 2 of the Oversight Board Charter, “For each decision, any prior board decisions will have precedential value and should be viewed as highly persuasive when the facts, applicable policies, or other factors are substantially similar.” In addition, Article 4 of the Oversight Board Charter establishes, “The board’s resolution of each case will be binding and Facebook (now Meta) will implement it promptly, unless implementation of a resolution could violate the law. In instances where Facebook identifies that identical content with parallel context – which the board has already decided upon – remains on Facebook (now Meta), it will take action by analyzing whether it is technically and operationally feasible to apply the board’s decision to that content as well. When a decision includes policy guidance or a policy advisory opinion, Facebook (now Meta) will take further action by analyzing the operational procedures required to implement the guidance, considering it in the formal policy development process of Facebook (now Meta), and transparently communicating about actions taken as a result.”
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