Facebook’s Oversight Board, Trump, and Arbitration

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.

What is the legal status of the Board’s decision?  Does the Board’s decision count as an “arbitration” pursuant to the Federal Arbitration Act (FAA)?  If so, the Board’s decision has a special legal status and protections flowing from the FAA, and neither Trump nor Facebook could challenge the merits of the Board’s decision in court.  Courts have described the judicial review of an arbitration award as among the narrowest reviews known in American law.   As explained in more detail below, although the Board’s procedures and actions share some features or similarities with arbitration, I don’t think the decisions of Facebook’s Oversight Board would count as a binding arbitration under the FAA.  In theory, Trump could still file a lawsuit in court to challenge his suspension with respect to his Facebook account, and he could argue the Board’s decision does not have the binding effect of an arbitration award.  I base this conclusion on the Oversight Board’s charter, Facebook’s Terms of Service and Community Standards, and Instagram’s Terms of Use, and I am assuming Trump is bound by these terms like every other Facebook or Instagram user.  It is possible that Trump entered into a different, private agreement with Facebook where he separately promised, perhaps after his dispute or suspension arose, to arbitrate before the Oversight Board in a binding manner that satisfies the FAA, but there is no public record of such documents.  

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.

My conclusion that the Oversight Board’s decisions are not binding arbitration decisions is primarily based on what I perceive as a lack of a clear agreement to arbitrate.  If Facebook desires to create a binding arbitration system, I suggest that Facebook modify its agreements with its users.  Facebook’s Terms of Service never explicitly mention the Oversight Board.  However, the Terms of Service mention and incorporate Facebook’s Community Standards, which in turn refer to the binding nature of the Oversight Board’s decisions as to content.  Nevertheless, I do not think there is a clear agreement to arbitrate because Facebook’s Terms of Service, under the heading of “4.4 Disputes,” currently state that “For any claim, cause of action, or dispute you have against us that arises out of or relates to these Terms or the Facebook Products (‘claim’), you agree that it will be resolved EXCLUSIVELY in the U.S. District Court for the Northern District of California or a state court located in San Mateo County.” (my emphasis added).  This clear statement about a courthouse in San Mateo County serving as the “exclusive” forum for resolving any disputes is in tension with or inconsistent with a purported decision to submit an appeal to the “binding” Oversight Board.  A court, wishing to rid itself of any such dispute, may gloss over this inconsistency and say that this “exclusive” language must be harmonized with and read together with an exception for content-related disputes which should be heard by the Oversight Board.  However, the Terms of Use are poorly drafted, and another judge may hold there was no meeting of the minds or clear agreement to arbitrate before the Oversight Board in light of the language referring to a court as the “exclusive” forum for resolving disputes.  I suggest that if Facebook truly wants to create an Oversight Board with binding authority, Facebook needs to modify its current Terms of Use and create an explicit exception or carve-out for content in its dispute clause regarding content-related disputes.  In other words, all content-related disputes would head to the Oversight Board for binding arbitration, but all other disputes must be heard exclusively in a court in San Mateo County, if this arrangement is what Facebook desires.  Also, Instagram’s dispute resolution clause is inconsistent with the “binding” nature of the Oversight Board.  Instagram’s Terms of Use state that all disputes must be resolved in arbitration before the American Arbitration Association.  In a nutshell, if Facebook intends to make the decisions of its Oversight Board binding, Facebook needs to make sure the terms governing users reflect this intent.  In their current form, the terms of use governing Facebook and Instagram are inconsistent or in tension with the purportedly binding nature of the Oversight Board.  In theory, Trump could still file a lawsuit in a court in San Mateo County (or commence an arbitration before the American Arbitration Association with respect to his Instagram account), and he can argue he never submitted to the binding authority of the Oversight Board as an arbitration tribunal. In theory, on the merits of his claim, Trump can then attempt to argue in court that his postings did not breach the contractual standards regarding appropriate content found in Facebook’s Community Standards (although as a practical matter, a judge or jury would probably be influenced by the Oversight Board’s decision that Trump’s postings do indeed violate the contractual standards).

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).


Imre Szalai

Professor Szalai graduated from Yale University, double majoring in Economics and Classical Civilizations, and he received his law degree from Columbia University, where he was named a Harlan Fiske Stone Scholar. After graduating from law school, Professor Szalai practiced antitrust law in New York City, and then he practiced complex…

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