Case Summary and Outcome

The Oversight Board upheld Meta’s decision to leave up a Facebook post asking for donations of pharmaceutical drugs to Sri Lanka. At the time the content was uploaded, the country was experiencing a severe political and financial crisis that caused a significant shortage of medicines. Meta initially considered the post violated its Restricted Goods and Services policy, which prohibits content that asks for pharmaceutical drugs. However, the company applied a “spirit of the policy” allowance to permit the post, reinforcing the policy rationale of “encouraging safety.” The Board found that Meta’s decision protected lives and health in Sri Lanka. Nonetheless, it stressed that Meta should provide users with more clarity and information about the criteria for issuing or terminating such allowances.

*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 April 2022, during a severe political and financial crisis in Sri Lanka, an image was posted on the country’s medical trade union’s Facebook page with a caption asking people to donate pharmaceutical drugs to support the national healthcare system. No user reported the post.

The country’s crisis reached alarming levels. Doctors reported that medicines and supplies were running out and warned of an impending health catastrophe. In this high-risk scenario, Meta conducted a risk-monitoring effort.

Meta’s Global Operations team identified the content through this effort and considered it to violate the company’s Restricted Goods and Services Community Standard, which prohibits attempts to donate or gift pharmaceuticals. After escalation for additional review, Meta issued “a time-bound and scaled ‘spirit of the policy’ allowance ‘to permit this post as well as other content attempting to donate, gift or ask for pharmaceutical drugs in Sri Lanka’.” [p. 6]

Meta makes “spirit of the policy” exceptions “when the policy rationale, and Meta’s values, demand a different outcome to a strict reading of the rules.” [p. 2]

In this case, the allowance was issued from 27 April to 10 May 2022. It was constantly reviewed and extended multiple times. Meta explained that the allowance was applied to the Sri Lanka market only, which included content posted in Sri Lanka and in the Sinhalese language outside Sri Lanka. By 10 November 2022, the company ended the allowance, as by that time the crisis had subsided, and “the risk of potential abuse from unfettered calls for donations of medical drugs on Facebook outweighed the remaining benefits.” [p. 15]

Subsequently, Meta referred the case to the Oversight Board, citing the difficulty in balancing competing values such as “Safety” and “Voice,” and requesting guidance on applying “spirit of the policy” allowances during crises.

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Decision Overview

On 9 March 2023, the Oversight Board issued a decision. The central issue was whether Meta’s decision to leave up a Facebook post asking for pharmaceutical donations during Sri Lanka’s crisis aligned with the company’s Restricted Goods and Services policy, values, and human rights responsibilities.

The posting user did not provide a statement. Meta explained that its Restricted Goods and Services policy prohibits content that asks for pharmaceuticals. However, the policy’s rationale is “to encourage safety and deter potentially harmful activities.” [p. 10] The company therefore justified the “spirit of the policy” allowance by the crisis in Sri Lanka, which affected public safety and health. Meta noted it has issued similar allowances in other countries, stating that “in each situation, the company relied on ‘independent reporting’ to verify the crisis.” [p. 11]

1. Compliance with Meta’s Content Policies

The Board considered that the content urged people to donate pharmaceutical drugs, thereby violating Meta’s Restricted Goods and Services policy, which “prohibits attempts to donate, gift, or ask for pharmaceutical drugs, except when content discusses the affordability, accessibility or efficacy of pharmaceutical drugs in a medical context.” [p. 13] The Board noted that for a post to qualify as an “affordability and accessibility discussion,” it should mention discounts, vaccine prices, or suggestions for addressing a medical condition.

This was not the case here; the post asked for drugs and therefore violated the Community Standard. The Board explained that according to the value of “Safety,” Meta is obliged to “remove content that could contribute to a risk of harm to the physical security of persons.” [p. 14]

The Board underscored that while the crisis in Sri Lanka posed a serious safety risk, permitting pharmaceutical donations could also raise safety concerns. It opined that Meta must consider that issuing a “spirit of the policy” allowance may allow users to exchange harmful drugs or misuse them for illegal or dangerous purposes.

Nevertheless, the Board held that the severe crisis in Sri Lanka—resulting in an enormous shortage of medical supplies—constituted a valid and justifiable reason for Meta to issue the allowance. It explained that “the more acute need in a time of severe economic crisis should prevail so that people’s access to healthcare is minimally preserved.” [p. 14] Additionally, the Board considered that concerns about drug misuse could be mitigated by local authorities and organizations, especially if notified by Meta of the allowance.

The Board noted that Meta restricted its policy allowance to the Sri Lanka market and the Sinhalese language, although Sri Lanka has two official languages—Sinhala and Tamil. Since Tamil is spoken by Tamil and Muslim ethnic minorities, the Board held that “At-scale allowances should be sensitive to the ethnic and linguistic diversity of people they may affect in order to avoid inadvertent discrimination.” [p. 16]

The Board further noted that users have no access to information about the “spirit of the policy” allowance. It stated that Meta should provide information in its Transparency Center by creating a page indicating the criteria for issuing or terminating allowances. Meta should also publish a list of all past “spirit of the policy” allowances with aggregated data.

2. Compliance with Meta’s human rights responsibilities

The Board mentioned that Meta “has committed itself to respect human rights under the UN Guiding Principles on Business and Human Rights (UNGPs).” [p. 16] It also recalled that Article 19 of the International Covenant on Civil and Political Rights (ICCPR) provides heightened protection to expression that is “particularly important during a health crisis as it relates to matters of great public importance.” [p. 17]

The Board applied Article 19(3) of the ICCPR, employing a three-part test to analyze whether Meta’s decision complied with its human rights responsibilities.

a. Legality (clarity and accessibility of the rules)

The legality requirement demands that restrictions on freedom of expression be clear and accessible so that people understand the limitations on their rights. Lack of clarity “can lead to subjective interpretation of rules and their arbitrary enforcement.” [p. 18] In this case, the Board concluded that Meta’s Restricted Goods and Services policy is clear to users. However, its exceptions—allowing content discussing “the affordability, accessibility or efficacy of pharmaceutical drugs in a medical context”—were not sufficiently clear and accessible.

The Board highlighted concerns regarding the lack of sufficient information about these exceptions. It urged Meta to provide users “with clearer guidance on how the company interprets its content policies” since “as restrictions on rights must be clear, any exceptions to those restrictions should also be clear enough for users to understand what they can and cannot post.” [pp. 18-19]

Furthermore, the Board noted that users have no access to information about the “spirit of the policy” allowance, as Meta does not mention it in the Community Standards. Accordingly, the Board stated that “secret discretionary exemptions to Meta’s policies are incompatible with the legality standard.” [p. 19]

Additionally, the Board referred to its decision in the Colombia protests case to emphasize the importance of notifying users when their content benefits from an allowance. Since Meta confirmed it did not notify reporting users, the Board recommended that the company do so, as it would provide a better understanding of why violating content was left on the platform. The Board stated that “when moderating vast amounts of content on a global scale, it is necessary to have a ‘catch-all’ allowance that can be applied to prevent clear injustices.” [p. 19]

However, the Board considered that although Meta failed to meet the legality standard by not providing enough information about the allowance, this did not “undermine the application of that allowance in this case,” [p. 18] given the severe crisis in Sri Lanka.

b. Legitimate aim

To be valid, restrictions on freedom of expression should pursue one of the legitimate aims listed in the ICCPR.

The Board held that Meta’s Restricted Goods and Services policy seeks to reinforce the legitimate aims of protecting public safety, public health, and the rights of others to health and life.

c. Necessity and proportionality

The necessity and proportionality principles provide “that any restrictions on freedom of expression must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; [and] they must be proportionate to the interest to be protected.” [p. 21] On this prong of the test, the Board held that “the application of the Restricted Goods and Service Policy in this case would not have been a proportional restriction on speech given the severe political and economic crisis in Sri Lanka.” [p. 21] By granting the allowance, Meta “protected Sri Lankans’ right to life and health during this crisis.” [p. 21]

Ultimately, the Oversight Board upheld Meta’s decision to leave up the content on Facebook.

3. Policy advisory statement

The Board recommended that Meta provide users with more information and clarity about its allowances. Meta should “include a link to a Transparency Centre page which provides information about the ‘spirit of the policy’ allowance.” [p. 21]

The Board also recommended that the company notify users who reported content about the application of a “spirit of the policy” allowance to help them understand why violating content was left on Meta’s platforms. Moreover, it recommended that Meta publish information about allowances in its Transparency Centre by creating a page indicating the criteria for issuing or terminating an allowance, along with a list of all past “spirit of the policy” allowances and aggregated data.

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