Case Summary and Outcome

On July 8, 2021, the Oversight Board overturned Facebook´s (now Meta) original decision to remove an Instagram post encouraging people to discuss the solitary confinement of Abdullah Öcalan, a founding member of the Kurdistan Workers’ Party (PKK). When the user appealed the company’s decision and the Board selected the case for review, Facebook found that a piece of internal guidance on the Dangerous Individuals and Organizations policy was “inadvertently not transferred” to a new review system and therefore decided to restore the content. While analyzing the company’s original decision, the Board found that the content should never have been removed. It determined that the user did not advocate violence but sought to highlight human rights concerns about Öcalan’s prolonged solitary confinement. Thus, the Board concluded that the post was unlikely to result in harm, and its removal was not necessary or proportionate under international human rights standards. 

*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

The PKK was founded in the 1970s to establish an independent Kurdish state in South-Eastern Turkey, Syria, and Iraq.

On January 25, 2021, an Instagram user posted a picture of Abdullah Öcalan, a founding member of the PKK, who had been imprisoned in Turkey since his arrest and sentencing in 1999 for carrying out violent acts aimed at the secession of a part of Turkey’s territory. The uploaded content included the text: “y’all ready for this conversation” in English. The picture’s caption said it was time to talk about ending Öcalan’s isolation in prison. Additionally, the user encouraged readers to “engage in conversation about Öcalan’s imprisonment and the inhumane nature of solitary confinement, including through hunger strikes, protests, legal action, op-eds, reading groups, and memes” [p. 5]. 

On February 12, 2021, the post was removed after a human moderator found that it violated the company’s policy on Dangerous Individuals and Organizations. The user appealed the decision, yet Facebook replied that it was final and could not be reviewed because of a temporary reduction in capacity due to COVID-19. Nevertheless, a second moderator reviewed the content and confirmed the first decision. Consequently, the user appealed to the Oversight Board.

Facebook restored the content to Instagram on April 23, after the case got selected by the Board for review. The company notified the Board that it had found a piece of internal guidance, developed in 2017, on the Dangerous Individuals and Organizations policy that allowed discussion or debate about the conditions of confinement for individuals designated as dangerous. It explained that in 2018 the guidance was “inadvertently not transferred” to a new review system and, thus, had not been applied in this case. Upon discovering the error, the company restored the content.

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Decision Overview

The main issue for the Board to analyze was whether Facebook’s original decision to remove the Instagram post encouraging people to discuss the solitary confinement of Abdullah Öcalan complied with the company’s content policies, values, and human rights responsibilities.

In their appeal to the Board, the user explained that they posted the content to spur discussion about Öcalan’s philosophy and to end his isolation. They highlighted that they believed banning the discussion about Öcalan prevents discussions that could lead to a peaceful settlement for Kurdish people in the Middle East. They also stated that they did not wish to promote violence but believed that there should not be a ban on posting pictures of Öcalan on Instagram. 

In its submission, Facebook explained that it initially concluded that the content was a call to action to support Öcalan and the PKK, thus violating the Dangerous Individuals and Organizations policy. Facebook further remarked that after the Board had selected the case for review, it re-evaluated the content against its policies and found that in 2017, it had developed internal guidance allowing content calling for the freedom of a terrorist when the context of the content is shared in a way that advocates for peace or debate of the terrorist’s incarceration. However, it stated that it had inadvertently failed to transfer this guidance when it switched to a new review system in 2018. After applying the guidance to this case, Facebook found that the content fell within it and restored the content.

Compliance with Facebook’s content policies

The Board noted that Instagram’s Community Guidelines, which included a link to Facebook’s Community Standard on Dangerous Individuals and Organizations, stated that Instagram is not a place to support or praise terrorism, organized crime, or hate groups.  It then highlighted that the Community Standards apply to Instagram as they do to Facebook. The Board then explained that the Dangerous Individuals and Organizations Community Standard seeks to “prevent and disrupt real-world harm, [by] not allow[ing] any organizations or individuals that proclaim a violent mission or are engaged in violence to have a presence on Facebook.” Moreover, the Board pointed out that when the Standard was enforced, it established that Facebook could remove content that voiced support or praise for groups, leaders, or individuals involved in these activities.

Following a request from the Board, Facebook shared their internal guidance for content moderators regarding the meaning of “support” of designated individuals and organizations. In it, a “call to action in support” was defined as a “call to direct an audience to do something to further a designated dangerous organization or its cause” [p. 11]. Yet, the Board highlighted that at the time the content was posted, such information was not included in the public-facing Community Standards nor was contained in the update published on June 23, 2021.

Further, the Board considered the misplaced and non-public guidance created in 2017 to highlight that discussion of the conditions of a designated dangerous individual’s confinement was permitted and did not constitute support. The Board noted that Facebook’s policy of defaulting towards removing content showing “support” for designated individuals while keeping key exceptions hidden from the public allowed the mistake to go unnoticed by the company for approximately three years without any accountability.  Therefore, in the instant case, the Board determined that even without discovering the misplaced guidance, the content should not have been removed for “support” since the user only encouraged people to discuss Öcalan’s solitary confinement through hunger strikes, protests, legal action, op-eds, reading groups, and memes. Thus, the Board considered that the content removal did not serve the policy’s aim of preventing and disrupting real-world harm.

Compliance with Facebook’s values

The Board found that Facebook’s decision to remove the content did not comply with Facebook’s values of “Voice” and “Safety.” It explained that the user sought to highlight possible human rights violations, and that challenging such violations was central to the value of “Voice”. Additionally, the Board noted that while the value of “Safety” was notionally engaged given that the content concerned a designated dangerous individual, removing the content did not address any clear “Safety” concern since the content did not include language that incited or advocated for the use of violence. Instead, it considered that Facebook’s decision illegitimately suppressed a person’s voice raising a human rights concern.

Compliance with Facebook’s human rights responsibilities

 The Board recalled that discussing the conditions of an individual’s detention and alleged violations of their human rights in custody was a type of expression protected by Article 19 of the ICCPR. It also remarked that international bodies had raised human rights concerns about practices that sought to highlight concerns about an individual’s solitary and prolonged confinement. To unravel if the restriction on freedom of expression was justified, the Board proceeded to employ the three-part test in Article 19 of the ICCPR. 

I. Legality 

The Board cited human rights standards that state that restrictions on expression should be formulated with sufficient precision so that individuals understand what is prohibited and act accordingly. In the Board’s view, while Facebook had provided reviewers with extensive internal and confidential guidance to interpret the company’s content policies, it had failed to reflect essential rules on what is excluded from Facebook’s definition of support in the public-facing Community Standards.

 The Board noted that Facebook has now publicly defined the terms “representation,” “praise,” and “support” in the Community Standard on Dangerous Individuals and Organizations. However, the Board noted that the UN Special Rapporteur on freedom of expression has described social media platforms’ prohibitions on both “praise” and “support” as “excessively vague” (A/HRC/38/35, para. 26; see also: General Comment No. 34, para. 46) [p.14]. 

II. Legitimate aim

The Board considered that since Facebook had reversed its original decision following the Board’s selection of the case, the company did not seek to justify the removal as pursuing a legitimate aim but instead framed it as an error.

III. Necessity and proportionality

In the Board’s view, by reversing its decision following the Board’s selection of the case, Facebook had implicitly acknowledged that removing the content was not necessary or proportionate. It further stressed that the breadth of the term “support” in the Community Standards, combined with the misplacement of internal guidance on what this excluded, meant an unnecessary and disproportionate removal occurred. Additionally, The Board considered that “there was no demonstrable intent of inciting violence or likelihood that leaving this statement or others like it on the platform would result in harm” [p.16].

Right to remedy

The Board expressed several concerns that indicated that Facebook failed to respect the right to remedy in contravention of its Corporate Human Rights Policy. In this case, the Board explained that the user was informed an appeal was not available due to COVID-19, but later it was carried out. While it recognized that the content was later restored, the Board expressed concern regarding the possibility of a considerable number of removals that should not have happened because Facebook lost its internal guidance, which had allowed for discussion on conditions of confinement for designated individuals. Similarly, the Board believed that Facebook’s transparency reporting was not sufficient to meaningfully assess if the type of error identified in this case meant there was a systemic problem.

Policy advisory statement:

The Board, among other things, recommended Facebook: “1. Restore the misplaced 2017 guidance to the Internal Implementation Standards and Known Questions (the internal guidance for content moderators). 2. Evaluate automated moderation processes for enforcement of the Dangerous Individuals and Organizations policy. Where necessary, Facebook should update classifiers to exclude training data from prior enforcement errors that resulted from failures to apply the 2017 guidance. 3. Publish the results of the ongoing review process to determine if any other policies were lost, including descriptions of all lost policies, the period they were lost for, and steps taken to restore them. 5. Add to the Dangerous Individuals and Organizations policy a clear explanation of what “support” excludes. Users should be free to discuss alleged violations and abuses of the human rights of members of designated organizations. 8. Ensure internal guidance and training are provided to content moderators on any new policy […] 9. Ensure that users are notified when their content is removed” [p. 19-20].

Similarly, the Board also suggested to Facebook that “notification[s] should note whether the removal is due to a government request or due to a violation of the Community Standards, or due to a government claiming a national law has been violated (and the jurisdictional reach of any removal). 10. Clarify to Instagram users that Facebook’s Community Standards apply to Instagram in the same way they apply to Facebook. 12. Include more comprehensive information on error rates for enforcing rules on “praise” and “support” of dangerous individuals and organizations, broken down by region and language” [p. 20-21].

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