Lessons from the creation of Facebook’s new Oversight Board

Facebook has long made important decisions about what content to remove or leave up on its platform. But new challenges brought by fake news, election tampering or even the persecution of targeted populations showed that the stakes had changed. With those changes came the need for new oversight measures that evaluated content and ensured decisions could be fair, transparent and maintain user trust in the long term.

Facebook’s new Oversight Board, launched today, was created to address these challenges. The Oversight Board is an independent body which will sit entirely outside the control or influence of Facebook, and is charged with reviewing the most contentious content posted to the platform, and issuing final, transparent, unappealable decisions.

Whether the Oversight Board succeeds in achieving widespread acceptance will ultimately depend on how it lives up to its mandate. However, the process of creating and launching the Oversight Board contains lessons for any technology company considering how to design solutions that can effectively address emerging governance needs.

Getting started: Collecting global feedback

Facebook collected guidance from a range of stakeholders regarding the design and formation of the Oversight Board, including our firm Baker McKenzie. Given Facebook’s objective of forming a private sector entity with the credibility and institutional legitimacy of a global public institution, we proposed that the social media firm model its public outreach according to the standards and best practices of any public consultation undertaken by a public entity:

The resulting public consultation solicited input from thought leaders around the world, as well as the public, on key questions pertaining to the structure, governance, and member composition of this independent content mediation body. Online and in-person consultations undertaken through the first half of 2019 collected input from more than 2,000 people from more than 85 countries.

Conducting public outreach in accordance with these standards ensures transparency in public discourse – a critical process step for any technology company seeking to establish institutional legitimacy in a governance initiative.

Designing the board’s structure

Arguably the two most important questions for any governance initiative are who will make the decisions, and with what degree of independence? It was therefore not surprising that in the feedback from the public consultation, two key themes emerged: the Oversight Board needed to exercise independent judgment, and it needed to be diverse.

Independent Judgment

An overwhelming majority of feedback from the consultations expressed support for an Oversight Board with the power to exercise independent judgment — that is to say, judgment not influenced by Facebook, governments, or third parties. The Oversight Board’s ability to exercise independent judgment was broadly seen as critical to ensuring both its efficacy and legitimacy.

To this end, Facebook asked us to establish the Oversight Board Trust, a Delaware Non-Charitable Purpose Trust and the Oversight Board LLC, a Delaware limited liability company, which will oversee Facebook’s funding for the board, run its operations, employ staff and hold contracts with members — all completely separate from Facebook. The trust will ensure the board’s funding, and the LLC will administer the Oversight Board’s payroll and accounting, ensure tax compliance and review the Oversight Board’s annual budget. Through the trust and LLC, the Oversight Board will have its own staff, independent from Facebook.

The use of a non-charitable purpose trust and limited liability company as a combined vehicle to preserve the independent judgment was a novel mechanism developed for the challenges of this particular governance initiative, but a mechanism that may serve as a model for other contexts as well. In fact, Facebook designed the trust so that other companies and institutions could contribute to the trust, and work with the Oversight Board, in the future.

Diversity

Feedback collected also indicated the need for an Oversight Board that reflects the diversity of the social media platform's global users.

Facebook agreed, and set about achieving that diversity by identifying Board members who are experts hailing from different backgrounds and disciplines, with a range of different viewpoints, but all of whom could act in the interest of a global community. Even if perfect diversity is hard to come by in any group that is also a working body, an Oversight Board that is diverse in the broadest sense - with respect to perspective, background, cultural and linguistic knowledge, professional experience, age, race and gender, to name a few - will be optimally prepared to consider how to guide the social media platform to better, more transparent decisions.

To help ensure the consideration of any interested candidate, we opened a recommendations portal to allow anyone to put forward a qualified candidate as a member of the Oversight Board. The portal has allowed for the identification of experts in both the private and public sectors, including experts in freedom of expression, technology and democracy, the rule of law, journalism, child safety, civil rights and human rights protection, among others.

Positioning governance initiatives for success

Facebook’s board has yet to begin hearing cases. Still, even those most critical of the company's content moderation policies and practices should have cause to hope that the Oversight Board is a step toward stronger governance, accountability and oversight to Facebook's existing processes.

All companies face their own unique governance challenges. To overcome such challenges, it may be necessary to voluntarily devolve or share power. In such circumstances, the lessons from the Oversight Board formation are instructive: consult widely, with stakeholders and the public, and prioritize the structure of governance. In so doing, it is possible to impart power and responsibility, while ensuring the quality, transparency and accountability of the process is preserved.