This article first appeared on the Arbitration USA Blog, here.
Earlier today, Facebook’s Oversight Board issued its decision regarding Donald Trump’s suspension from Facebook arising from his postings about the US Capitol riots. The Board found that Trump’s postings violated Facebook’s Community Standards and Instagram’s Community Guidelines. The Board also decided to uphold Facebook’s decision to restrict Donald Trump’s access to posting content on his Facebook and Instagram account, but the Board held that an indefinite suspension was not appropriate.
The FAA does not contain an explicit definition of arbitration, and there are some conflicting court decisions struggling to define what counts as arbitration under the FAA. However, some features of arbitration include an agreement by the parties to submit their dispute to a private, impartial judge of their mutual selection. The parties must also agree that the decision is binding, and the arbitral procedures must be fair in allowing each party an opportunity to be heard.
Facebook’s Oversight Board shares some features with arbitration. For example, the governing documents and charter state that the Board’s decisions are “binding,” and the Board “will provide an accessible opportunity for people to request its review and be heard.” I believe the Board could have clearer, better-written procedures to ensure a fair arbitral hearing, but the charter currently states “[t]he posting person or the reporting person will have the opportunity to submit relevant and informed written statements to the board.” So, it seems there is an opportunity for the parties to be heard, which I believe is a core feature of arbitration, as opposed to a situation where an outside reviewer does not accept input, evidence, or arguments from the disputing parties.
One area in which the Board’s operations seem to differ from typical arbitration is that the Board’s review is discretionary. In other words, either Facebook or a person using Facebook’s services may request the Board to engage in a review, but the Board has discretion whether to accept or grant the request. In typical arbitration agreements, the arbitration tribunal must hear the parties’ dispute, and so the Board’s process departs from a typical arbitration process in this respect. However, I suppose one could argue that the Board’s decision to decline review embodies some determination or evaluation by the Board regarding the merits of the dispute, and so arguably, the Board’s decision to decline review is itself an arbitral decision that as a practical matter ends the dispute.
Another problematic aspect of the Oversight Board and why the Board’s decisions may not count as arbitration is that the user has zero say or input in the selection of an arbitrator. The selection of an impartial arbitrator has been recognized as the most important decision in the arbitration process. For example, the Consumer Due Process Protocols (albeit “soft law”) recognize that in a dispute between a consumer and a company, both parties “should have an equal voice in the selection of Neutrals in connection with a specific dispute.” Here, a user seems to have no input or voice at all in the selection of an arbitrator, and such a voice is critical to the integrity of the arbitration process. Some courts may disagree with this assessment, but I believe the mutual selection of an arbitrator is critical to the arbitration process.
Please don’t get me wrong. I believe on the merits that Trump’s postings violated the contractual standards of Facebook and multiple other laws, and his behavior has been reprehensible and violates all standards of morality and decency. I truly believe he is a continuing threat to our democracy and the worst president in history, and I can go on forever trying to express my strong disdain of his actions. However, legally, I would argue that Facebook failed to properly establish its Oversight Board as a binding authority on content-related disputes, and Trump (or any other user) could argue he is entitled to a decision by a court in San Mateo county for his Facebook postings (or an arbitral tribunal constituted by the American Arbitration Association for his Instagram postings).
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