The latest decisions of the Meta Oversight Board can be read as inconsistent with the Board’s overall doctrine unless they are understood against a margin of deferral approach. In this post, I explain what is at stake, why there are inconsistencies, and how a margin of deferral approach to content moderation works.
The Board, a quasi-advisory, quasi-judicial body established by Meta to moderate content on its social media platforms has the potential to play a reconciliatory role when it comes to concretizing a global standard on hate speech. This possibility arises since, from a comparative constitutional standpoint, hate speech merits radically different treatment in the United States than in Europe. Vance’s Munich speech abruptly summed up the tensions. As is well known, the US Supreme Court has proclaimed that “the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate”. As Claudia Haupt writes, “[b]ut whereas Nazi parades were deemed a necessary evil of free speech protection in the United States, the European postwar consensus had determined that there are limits to democratic public discourse that require a policing of its boundaries”. Thus, when it comes to hate speech in certain cases, the European Court of Human Rights (ECtHR) goes as far as to eschew its traditional balancing approach to freedom of expression, declaring certain (often Nazi) speech out of the scope of protection of Article 10 (on freedom of expression) of the European Convention on Human Rights (ECHR). Moreover, the ECtHR finds positive obligations for the state to prevent hate speech under Article 8 ECHR (right to private life) when the violation to reputation reaches a certain threshold of seriousness. Both approaches of the Strasbourg Court have been criticized as overreaching. At the same time, at the other end of the spectrum there is a growing discontent with the American approach. Tim Wu, a prominent First Amendment scholar, has written: “[s]ome might argue, based on the sophomoric premise that ‘more speech is always better,’ that the current state of chaos is what the First Amendment intended. But no defensible free-speech tradition accepts harassment and threats as speech, treats foreign propaganda campaigns as legitimate debate or thinks that social-media bots ought to enjoy constitutional protection. A robust and unfiltered debate is one thing; corruption of debate itself is another.”
I argue that to avoid confrontation and perhaps enable democratic decision making in hate speech cases, the Board has started to adopt a ‘margin of deferral’ tactic akin to the margin of appreciation doctrine developed by the European Court of Human Rights (ECtHR). The margin of appreciation doctrine of the ECtHR advocates for deference to be given to the interpretation of a qualified human right (one subject to restrictions) done at the national level. The Court’s margin of appreciation approach has thus been prominent when it comes to freedom of expression. In a parallel way to the ECtHR, the Board can be regarded as adopting what I call a ‘margin of deferral approach’ when it defers to constitutional standards that apply in the region where the user that posts content is located.
This ‘margin of deferral’ reasoning can be seen in the Board’s judgments on two recent posts involving videos relating to transgender women. In the first, a transgender woman is confronted for using a women’s bathroom in the United States and in the second, a minor transgender athlete wins a track race prompting offensive comments on the participation of transgender women in sports. In both cases, the majority of the Board has upheld Meta’s decisions to leave up the content. In a highly split decision, the Board interpreted Article 20.2 of the International Covenant on Civil and Political Rights to mean neither post creates a likely or imminent risk of incitement to violence, “so there is an insufficient causal connection between restricting these posts and preventing harm to transgender people.” A minority of the Board disagreed, stating that Meta has “a specific and additional responsibility to remove from its platforms any advocacy of hatred against LGBTQIA+ people.” Prior cases show that the Board has indeed taken down speech even in the absence of direct incitement, interpreting harm in a broader fashion that encompasses the long-term societal consequences of the speech. The decision can thus be viewed as inconsistent with the Board’s overall doctrine unless it is read against the background of a margin of deferral logic. These cases concern two posts containing videos shared on Facebook and Instagram in the United States in 2024. In line with a margin of deferral approach, the Board has interpreted incitement in accordance with the interpretation of incitement under the US First Amendment, which is focused on the imminence of harm, not long-term societal effects.
Conversely, in another recent decision – Criticism of EU Migration Policies and Immigrants – in accordance with its previous decisions, the Board found that two pieces of immigration-related content, posted on Facebook ahead of the June 2024 European Parliament elections, violate the Hateful Conduct policy and Meta should take them down. The anti-immigration rhetoric in the posts did not rise to the level of incitement under Article 20.2 ICCPR but the majority reiterated that Meta as a private actor may remove hate speech that falls short of the threshold of incitement to imminent discrimination or violence, where this meets the ICCPR Article 19(3) requirements of necessity and proportionality. The ratio decidendi of the Board’s majority can be found here: “Meta allowing all hate speech that falls short of incitement as foreseen under Article 20 of the ICCPR would make Meta’s platforms an intolerable and unsafe place for minorities and marginalized groups to express themselves. In these cases, it may cause not only migrants but anyone who is not white to withdraw from public discourse, having a chilling effect that diminishes the value of pluralism and access to information for all people. It is therefore appropriate that Meta’s approach to content moderation considers the effects on human rights of hateful content accumulating on its platforms, even when in isolation those posts do not incite imminent violence or discrimination.” Without stating so explicitly, because the post originated from Europe the majority of the Board implicitly deferred to a more European understanding of hate speech, one whereby the imminence of the harm does not always play a decisive role in restricting speech.
There are two older decisions when the Board has also deployed a margin of deferral approach – the Zwarte Piet case and the ‘Two buttons’ meme case. Both decisions were split opinions with a majority and a minority view. In Zwarte Piet, for example, a majority of the Board noted that the two adults in the video under question “had their whole faces painted black, wore Afro wigs, colorful renaissance-style clothes and acted as servants of Sinterklaas. The majority…found that the content included potentially harmful stereotypes, such as servitude and inferiority. In light of this, as well as of the analysis of Facebook’s values and human rights responsibilities…the majority affirm[ed] that removing the content was in line with Facebook’s Hate Speech Community Standard at the time. For a minority, however, Facebook’s general rule that blackface intimidates, excludes or promotes violence, raised concerns…” The minority held a view that could be best identified with First Amendment doctrine in the United States. Au contraire, the majority espoused a view that was most aligned with the interpretation of hate speech in Europe. The posts came from Europe so arguably the Board exercised a margin of deferral approach by deferring to the European standard, thus taking the speech down.
Conversely, the Board did the reverse in the ‘Two buttons’ meme case, where the user whose content was under review was based in the US. Whereas the majority of the Board “found that the user shared the meme [in question] to raise awareness of and condemn the Turkish government’s efforts to deny the Armenian genocide while, at the same time, justifying these same historic atrocities”, “the minority of the Board…found that it was not sufficiently clear that the user shared the content to criticize the Turkish government.” In this case the speech was left online, with the majority espousing an approach better associated with what a First Amendment could do in the US and the minority siding with a more European interpretation of hate speech.
Ultimately, that the Board handles European and American cases differently might be due to its composition that shows a free speech absolutist wing next to a more European-oriented one. What political agenda might be influencing the decisions? Certainly, there is a need for reconciliation between the Board’s own fractured members. Be that as it may, in an unbinding recommendation the Board managed to send an uncontroversial message that it opposes the recent Zuckerberg changes to Meta’s hate speech policy. It recommended the changes to pass through a human rights’ due diligence assessment in order not to jeopardise the rights of vulnerable minorities, including minors, LGBTQIA+ people and migrant communities.
What are the advantages then, if any, of adopting a margin of deferral approach to content moderation? At first sight, such a tactic has the potential to avoid confrontation in the face of diverging Transatlantic standards and simultaneously allow for a more democratic content moderation approach. Instead of outsourcing the making of a global standard on hate speech to elite-driven institutions, deferring to existing constitutional interpretations may seem more democratic. However, the pitfalls of this approach are significant too. Like the margin of appreciation doctrine at the Strasbourg Court, a margin of deferral approach at the Meta Oversight Board will result in a fractured, instead of a unified, understanding of freedom of expression online. Moreover, unlike the ECtHR that cites the lack of a European consensus as the main reason to adopt a margin of appreciation approach, the Board has never been explicit about its reasons – possibly the lack of a global consensus on hate speech – for adopting a margin of deferral tactic.
Bilyana Petkova
Dr Bilyana Petkova is the Principal Investigator for a project on freedom of speech at the Meta Oversight Board based at the University of National and World Economy in Sofia, Bulgaria. She is also an Affiliate Scholar at the Yale Information Society Project.
