Case Summary and Outcome

On December 9, 2021, the Oversight Board overturned Meta’s decision to remove a post from Instagram that contained a picture of a dark brown liquid in a jar and two bottles, which a caption in Portuguese, described as ayahuasca. After reviewing the post, Meta deemed it violated its Regulated Goods Community Standard. In its decision, the Board found that while the content violated the Regulated Goods Community Standard, which prohibits content that speaks positively about the use of non-medical drugs, it did not violate Instagram’s Community Guidelines, which, at the time, only covered the sale and purchase of illegal or prescription drugs. The Board also found that Meta’s international human rights responsibilities support its decision to restore the content. It further noted that the user’s post, which mainly discussed the use of ayahuasca in a religious context, was not closely linked to the possibility of harm. Thus, the Board overturned Meta’s decision to remove the content and required that the post be restored.

*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.

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Facts

In July 2021, an Instagram account for a spiritual school based in Brazil posted a picture of a dark brown liquid in a jar and two bottles, described as ayahuasca in the accompanying text in Portuguese. The text also states  that, “AYAHUASCA IS FOR THOSE WHO HAVE THE COURAGE TO FACE THEMSELVES” [p. 4]. It says that ayahuasca is for those who want to “correct themselves,” “enlighten,” “overcome fear” and “break free“. It also described how the substance was a “remedy” and “can help you” if one has humility and respect. It ended with the phrase “Ayahuasca, Ayahuasca!/Gratitude, Queen of the Forest!” [p. 4].  

The content was viewed over 15,500 times, and no users reported it. Yet, it was flagged for review by Meta’s automated systems because it was “trending”. Henceforth, the post was reviewed by a human moderator and then removed. Meta notified the user that the post had been removed since it went against Instagram’s Community Guidelines, which prohibited the sale of illegal or regulated goods.

After another human review of the content, Meta upheld its initial decision and notified the user. Consequently, the user appealed to the Oversight Board. 

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Decision Overview

The main issue for the Board to examine was whether Meta’s decision to remove the post was in line with Meta´s content policies, values, and human rights responsibilities. 

In their submission, the user stated that they believed the post did not violate Instagram’s Community Guidelines since their page aimed to demystify the sacred ayahuasca drink and never encouraged or recommended the purchase or sale of any product prohibited by the Guidelines. Likewise, they claimed that they took the photo at one of their ceremonies, which were regulated and legal. 

In its response, Meta stated it removed the content because it encouraged using ayahuasca, a non-medical drug. The company deemed that the content violated Instagram Community Guidelines, which include a link to the Facebook Community Standards on Regulated Goods. Specifically, Meta explained that it considered that the user violated Instagram’s prohibition on content “buying or selling illegal or prescription drugs (even if legal in your region).”  Moreover, Meta considered that, in this case, the value of “Safety” displaced the value of “Voice”.  It explained that while users could advocate for the legalization of non-medical drugs and discuss the medical and scientific benefits of non-medical drugs, there was no religious or traditional use allowance.

Compliance with Meta’s content policies

Instagram’s Community Guidelines

The Board recalled that the company had contested that the post was removed because it infringed the Instagram Community Guidelines, which prohibited “the ‘buying or selling’ of ‘illegal or prescription drugs (even if legal in your region)’” [p.11]. Yet, the Board considered that this policy was contradictory and confusing. It explained that the contested content did not refer to the sale or purchase of ayahuasca. By referencing the 2010 resolution of Brazil’s National Anti-Drug Council (CONAD) and the US Supreme Court case of Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, it highlighted that using ayahuasca for religious rituals and by Indigenous communities was permissible in Brazil and permitted for some religious purposes under federal law in the United States. Thus, the Board concluded that content positively discussing the use of ayahuasca as part of a religious practice that the user, who was based in Brazil, understands to be legal did not violate the Instagram Community Guidelines.

Facebook’s Community Standards and values 

Upon analyzing Facebook’s Community Standards, the Board agreed that the post violated Facebook’s Regulated Goods Community Standard because it speaks positively about a non-medical drug that is used to achieve an “altered mental state,” which the policy prohibits. 

Compliance with Meta’s values

In the Board’s opinion, Meta’s rationale did not consider the controlled uses of ayahuasca, which aim to mitigate various health risks. Moreover, it considered that in light of the scientific evidence, the company did not demonstrate the dangers to the value of “Safety” in a manner sufficient to displace “Voice” and “Dignity” to the extent necessary to justify the removal of the post. Thus, the Board concluded that Meta’s decision to remove the content was inconsistent with the company’s values.

Compliance with Meta’s human rights responsibilities

Since Meta has voluntarily committed itself to respect human rights standards, the Board followed the three-part test to determine if the restrictions on expression, in this case, met the requirements established in Article 19 of the ICCPR. 

I. Legality (clarity and accessibility of the rules)

In the Board’s view, Instagram’s Community Guidelines did not clearly inform users that Facebook’s Community Standards also apply. While some sections of the Guidelines were linked to the Community Standards, the Board noted that the “buying or selling illegal or prescription drugs” section did not contain hyperlinks to Facebook’s Community Standards. Therefore, users needed to consult the Transparency Center reports to find language stating, “Facebook and Instagram share content policies. This means if the content was considered violating on Facebook, it was also considered violating on Instagram.” 

The Board explained that on October 26, 2021, Meta had updated the Instagram Community Guidelines to replace the reference to ‘illegal or prescription drugs’ with ‘non-medical or pharmaceutical drugs’ and explicitly add a prohibition on “content that either admits to personal use (unless in the recovery context) or coordinates or promotes the use of non-medical drugs” [p. 16]. In the Board’s opinion, the updated version provided a more accurate representation of the rules Meta applied to remove the post. However, the Board found that  Meta’s rules were not sufficiently understandable and transparent to users,  in part because it did not define non-medical drugs. 

Moreover, the Board noted that the company failed to inform the user what part of Meta’s content policies they had violated in the present case. Considering the previous, the Board determined that Meta did not meet its responsibility to make its rules precise and accessible to users. 

II. Legitimate aim

The Board stressed that any state restriction on expression should pursue one of the legitimate aims listed in Article 19, para. 3 the ICCPR and these aims may also motivate Meta’s content policies. In the immediate case,  Meta cited public health as the aim of its policy, and the Board agreed that this qualified as a legitimate aim. 

III. Necessity and proportionality

Given that the user did not post instructions for using ayahuasca or information about its availability, the Board found no direct and immediate connection between the content, which primarily discussed the use of ayahuasca in a religious context, and the possibility of harm. It explained that both the 1971 United Nations Convention on Psychotropic Substances and the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances recognize exceptions for “traditionally used” and “traditional licit “substances use, where there is historical evidence. Moreover, the Board underscored that the scientific literature indicated using ayahuasca in a controlled context in traditional and religious ceremonies was not linked to a severe risk of harm. However, the Board recognized that the exceptions in these international instruments pertained to possession and use, not speech. Nevertheless, the Board determined that in light of the significance of the right to freedom of expression, Meta’s decision was not necessary nor proportionate to forbid speech permitted under a relevant exception in most contexts. 

Furthermore, the Board considered that Meta’s argument that positive commentary about ayahuasca, more generally in a traditional or religious context, poses a severe enough risk to merit removal was inconsistent with its approach to other substances, such as marijuana, tobacco, and alcohol.  The Board considered that there were other measures by which Meta could promote respect for public health when moderating non-medical drug-related content.

In light of the preceding, the Board overturned Meta’s decision to remove the content and required the post to be restored. 

Policy advisory statement:

The Board recommended that Meta explain to its users that it enforces the Facebook Community Standards on Instagram, with several specific exceptions. Moreover, it stressed that the company should explain to users precisely what content policy rule they violated. Additionally, the Board advised Meta to modify the Instagram Community Guidelines and Facebook Regulated Goods Community Standard to allow positive discussion of traditional and religious uses of non-medical drugs where there is historic evidence of such use. Finally, allowances, including existing ones, should be public.  

Dissenting or Concurring Opinions:

A minority of the Board considered that content related to the use of non-medical drugs could be restricted by human rights principles. 

Other members of the Board opined that “Facebook’s Community Standards are not inconsistent with international human rights law given considerations of enforcement at scale and the need to ensure the administrability of the rule” [p. 17]. For these Board members, a broad allowance for “traditional and religious” drugs could be impossible to manage and identify when users use it as a pretext to violate the company’s policies. They also believed that “positive statements in general about non-medical drugs with a recognized traditional or religious use should not be prohibited, regardless of whether they discuss those traditional or religious uses” [p. 18].  

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