On June 4, 2021, Facebook decided to follow the ruling of its Oversight Board – also known as Facebook’s Supreme Court – that fiercely criticized Donald Trump’s permanent ban from its social media platforms. Beyond the headline, this decision hints at the possible creation of a new judiciary tailored to multinational companies. These developments could create an alternative to traditional and to international arbitral tribunals.
Facebook’s Oversight Board was proposed by Mark Zuckerberg in 2018 as a judicial body to settle disputes between the company and the users of its social networks, which include Facebook and Instagram. This body, which began its work in 2020, entered the public debate with a bang on May 5, 2021. The Board indeed strongly criticized the permanent ban of Donald Trump from Facebook’s social networks due to the absence of a corresponding sanction in its Terms of Use. As a result, Facebook swiftly decided to reconsider its ruling and limit the ban to two years on June 4, 2021, a duration which may be extended depending on how the security situation in the United States will evolve in the coming years.
Beyond the mere headline, the decision of the Oversight Board – and Facebook’s compliance with it – could signal a revolution in the way some disputes are traditionally resolved. Indeed, this new body tends to address some of the limitations that affect both ordinary state courts and international arbitral tribunals. The decision regarding Donald Trump has emphasized the Oversight Board’s particularity – and the proposal for a new parallel judiciary system – with force.
It is often assumed that Facebook and other technology giants are, by virtue of their domicile, leadership and history, principally committed to the values resulting from the U.S. Constitution, in particular its first amendment which protects freedom of expression. In this regard, debates surrounding the regulation of these companies are often considered from the perspective of U.S. law exclusively, which may seem problematic given the global reach of social media.
However, the Oversight Board surprisingly contradicted this preconception not only by the fact that it is made of renowned specialists from different genders, races, and continents, but also by grounding its decision on the International Covenant on Civil and Political Rights, also known in Switzerland as “Pacte ONU 2”. In other words, the Oversight Board distances itself from national – and in particular U.S. – conceptions of human rights in order to find common values in international law. Therefore, its sharp criticism of the decision to permanently ban Donald Trump as an “arbitrary penalty“ – due to the fact that this sanction does not exist in Facebook’s terms of use – has a far greater reach than expected.
This decision is completely at odds with the model of international arbitral tribunals, which generally focusses on disputes of a contractual nature and does not take into account human rights. It also contrasts sharply with domestic disputes adjudicated by national courts, which may reference reluctantly – if at all – international law.
In addition to the aspiration of having international reach, the Oversight Board aims at offering a credible and efficient legal path to all users of Facebook’s social networks, regardless of their financial status and the importance of the dispute as such. This democratic ambition cannot be found in arbitral tribunals which are mainly available to international companies or state actors, not least because of the high costs that such proceedings entail. Moreover, the Oversight Board could also offer a real alternative to state courts, which can often be inaccessible to ordinary consumers wishing to litigate matters of principle or small damages. The recent decision of the Federal Council to forego the introduction of a class action in Switzerland illustrates this problem.
That being said, the Oversight Board still has many hurdles to clear to become a credible judiciary authority. Although Facebook followed its latest ruling, the question of its independence and the authority given to its decision in less publicized cases remains. Moreover, it is worth mentioning that despite the many cases submitted to this authority, only a small minority will be processed by the Oversight Board. Only a general automation of its decision making – based on the previous decisions of the Oversight Board – would make it possible to meet the demand of users and make it an interesting legal avenue. Given the scarcity of decisions issued by the Oversight Board so far, this will take time and resources.
Switzerland, as an important hub for international arbitration and home to many international organizations offering alternative dispute resolution tribunals, should observe this development attentively. If the Oversight Board’s clears the aforementioned hurdles, it may offer a convincing – and competing – alternative to arbitral tribunals and state courts. In that case, other multinational companies could be interested in creating their own judiciary in order to deal with disputes more directly and efficiently as well as at a lower cost than today.
