*Primary research and drafting by: Madison Gunning, J.D. Candidate (Class of 2022),
UC Irvine School of Law
I. Introduction
In early 2021, Facebook’s Oversight Board announced its first case decisions, analyzing several posts removed by the company from its platforms.[1] The Board’s initial decisions are notable for their efforts in holding Facebook to account, overturning Facebook’s content removals in four of the five cases.[2] Even more so, the decisions make clear that the Board is committed to acting in alignment with the first line of the Board’s charter stating that “[f]reedom of expression is a fundamental human right.”[3] The Board’s decisions demonstrate a conscious effort to protect against infringement of the right to freedom of expression — but perhaps at the expense of full engagement with other human rights.
This working paper discusses the Board’s human rights treatment of Case No. 2020-004-IG-UA, generally referred to as the “Breast Cancer Symptoms and Nudity Case.” The Board’s decision in this case centered on freedom of expression, as provided by the International Covenant on Civil and Political Rights (the “ICCPR”). In doing so, the decision missed opportunities to highlight and delve into other human rights standards, including those calling for Facebook to be more gender responsive and inclusive.
The first section of this paper outlines the case facts and human rights bases of the Board’s decision. The second section presents several international human rights standards omitted by the Board yet directly relevant to the case. The third section applies these omitted standards to the case, pointing out the normative and practical significance of doing so.
II. The Breast Cancer Symptoms and Nudity Case Decision
The Board’s decision in the Breast Cancer Symptoms and Nudity Case overturned Facebook’s removal of a Brazilian user’s Instagram post that included photos of uncovered female nipples showing breast cancer symptoms.[4] The photo contained a caption about breast cancer awareness and several smaller photos of breasts with breast cancer symptoms.[5]
The post was originally removed pursuant to Facebook’s policy regarding Adult and Sexual Activity — despite the policy’s stated exception for nude images that “raise awareness about a cause” or are posted “for educational or medical reasons.”[6] Immediately after the Board selected the case for review, Facebook admitted the post was taken down in error, due to algorithmic imprecision, and restored the content.[7] The Board decided to take up the case notwithstanding Facebook’s restoration.[8] During the public comment period for the case, the Board received submissions heavily favoring restoration of the post, citing reasons such as protecting freedom of expression,[9] ensuring access to healthcare,[10] and redefining nudity as not inherently sexual.[11] Several of the public comments raised the concern that censorship of the female nipple disproportionately affects and discriminates against women by infringing upon their right to free expression and right to health.[12]
The Board’s decision, however, focused primarily on the lack of transparency and pitfalls of Facebook’s current automation of content moderation without adequate human oversight.[13] The Board analyzed the case under Article 19 of the ICCPR, which meant assessing the legality, legitimacy, and necessity and proportionality of Facebook’s removal.[14] The Board made note of the fact that health-related information is protected by the right to health in Article 12 of the International Covenant on Economic, Social and Cultural Rights (the “ICESCR”) and General Comment No. 14 of the UN Committee on Economic, Social and Cultural Rights.[15] The Board briefly addressed and agreed with the public comments arguing that Facebook’s policies on adult nudity discriminate on the basis of gender.[16] In doing so, the Board made cursory mention of Article 1 of the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) and Article 2 of the ICCPR.[17] Furthermore, the Board mentioned that the removal of the post in this case “jeopardize[d] not only women’s right to freedom of expression but also their right to health.”[18]
The Board did not elaborate on this issue or otherwise address the gender aspects of this case. The Board did not mention any right contained in CEDAW other than Article 1’s prohibition of gender discrimination.
III. Applicable International Human Rights Standards
A number of additional human rights are implicated by the Breast Cancer Symptoms and Nudity Case. These rights apply to companies, including Facebook, by way of the UN Guiding Principles on Business and Human Rights (“UNGPs”).[19]
The UNGPs are the authoritative global standards to “prevent, mitigate, and remediate business-related adverse human rights impacts.”[20] The UNGPs require businesses to respect internationally recognized human rights, which include — but are not limited to — the rights included in the Universal Declaration of Human Rights (the “UDHR”), the ICCPR, and the ICESCR.[21] The UNGPs should be read along with the 2019 Gender dimensions of the Guiding Principles on Business and Human Rights (“UNGP Gender Dimensions”), drafted by the UN Working Group on the issue of human rights and transnational corporations and other business enterprises.[22] The UNGP Gender Dimensions provide guidance on integrating gender considerations in human rights assessments under the UNGPs.[23] Such guidance makes clear that businesses should consider CEDAW “relevant in all circumstances and throughout their operations.”[24] The guidance also explains that businesses should rely on and refer to CEDAW to “avoid the risk of adopting a gender-neutral reading of human rights under the International Bill of Human Rights.”[25] Businesses should examine the ways in which their activities may affect women differently depending on intersecting identities, including “age, color, caste, class, ethnicity, religion, language, literacy, access to economic resources, marital status, sexual orientation, gender identity, disability, residence in a rural location, and migration, indigenous or minority status.”[26] The UNGP Gender Dimensions state that non-judicial grievance mechanisms, such as the Oversight Board, should be “gender responsive in dealing with complaints about adverse impacts on women and ensure that the remedies granted are in line with women’s international human rights standards.”[27]
Importantly, Facebook’s 2021 Corporate Human Rights Policy sets forth the company’s commitment to respecting human rights as established by the UNGPs.[28] The policy articulates the company’s commitment to the UDHR, the ICCPR, and the ICESCR;[29] yet the policy states that the company utilizes CEDAW “[d]epending on circumstances.”[30] This selective application of CEDAW conflicts with the directive of the UNGP Gender Dimensions to consider CEDAW “relevant in all circumstances.”[31]
In addition to Article 1’s prohibition of gender discrimination, other rights contained in CEDAW are germane to the Breast Cancer Symptoms and Nudity Case. The UN treaty body that interprets and monitors compliance with CEDAW has affirmed that the right to health in CEDAW Article 12 includes equitable access to healthcare information and education.[32] The treaty body has explained that this right prohibits the obstruction of action taken by women in pursuit of their health goals.[33] The Inter-American Commission on Human Rights has found that such obstruction can include limiting access to information about health conditions primarily affecting women.[34]
Also, rights contained in ICESCR other than Article 12 are relevant to health information. For example, Article 15 sets forth the right of everyone to “enjoy the benefits of scientific progress and its applications” and the obligation to “diffuse science.”[35] This right must be applied in a non-discriminatory manner under Article 2.[36] Businesses play an important role in guaranteeing economic, social, and cultural rights — including equality in the areas of health and science.[37]
Notably, all of the rights relevant to this case apply with equal force and stature. As the 1993 Vienna Declaration and Programme of Action established, “The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”[38]
IV. The Board’s Missed Opportunity to Promote Gender Equity
While the Breast Cancer Symptoms and Nudity Case decision did cover several key human rights, the Board missed an important opportunity to engage with and apply these apposite sources of human rights law. Indeed, the Board could have gone further to address a fuller range of applicable human rights standards, including the UNGP Gender Dimensions, Article 12 of CEDAW, and Article 15 of the ICESCR. And doing so could have yielded important benefits for human rights.
The Board’s human rights analysis extends little beyond a general discussion of freedom of expression under ICCPR Article 19. The Board failed to include a comprehensive gender lens, pursuant to the UNGP Gender Dimensions; women’s health rights, under CEDAW Article 12; and the right to enjoy the benefits of scientific progress, as enshrined in ICESCR Article 15. These failures mean that the Board did not consider CEDAW “relevant in all circumstances and throughout [the company’s] operations”[39] and did not “avoid the risk of adopting a gender-neutral reading of human rights under the International Bill of Human Rights.”[40] Furthermore, the Board was not “gender responsive in dealing with complaints about adverse impacts on women” and did not “ensure that the remedies granted are in line with women’s international human rights standards.”[41]
The Board’s inclusion of these omitted human rights standards could have yielded significant benefits. First, their inclusion would have made clear that the full spectrum of human rights apply to Facebook (and all businesses) and that they should be applied “in a fair and equal manner, on the same footing, and with the same emphasis.”[42] Second, their inclusion would have likely generated additional recommendations for Facebook in this case. Such recommendations might include that Facebook should align its content moderation with the UNGP Gender Dimensions; women’s health rights, under CEDAW Article 12; and the right to enjoy the benefits of scientific progress, as enshrined in ICESCR Article 15 — and, accordingly, breast cancer information, including relevant imagery, should be accessible on the company’s platforms. Third, inclusion of the omitted standards could have laid a foundation for potential future cases for which these standards might be outcome determinative.
V. Conclusion
The Board’s omission of the foregoing human rights standards made for an incomplete and reductive human rights analysis. In particular, the Board’s cursory treatment of gender effectively flattened the robust gender issues in this case. Although the application of such standards would likely not have changed the Board’s decision with respect to the post’s restoration, their inclusion would have underscored that the full spectrum of rights apply to Facebook, produced additional human rights recommendations, and possibly laid a foundation for future cases. By merely cherry picking certain human rights standards, the Board runs the risk of ignoring populations most vulnerable to discrimination and other harms.
[1] The Oversight Board has jurisdiction over content on the Facebook and Instagram platforms, which are both owned and operated by Facebook, Inc.
[2] Announcing the Oversight Board’s First Case Decisions, Oversight Board (Jan. 2021).
[3] Oversight Board Charter (Jan. 2020), Introduction.
[4] Oversight Board Overturns Original Facebook Decision: Case 2020-004-IG-UA, Oversight Board (Jan. 2021).
[5] Id.
[6] Facebook Community Standards, Stnd. 14 “Adult Nudity and Sexual Activity.”
[7] Oversight Board, Case Decision 2020-004-IG-UA (Jan. 28, 2021).
[8] Id.
[9] Public Comment Appendix for 2020-004-IG-UA, at PC-00077.
[10] Id., at PC-00022.
[11] Id., at PC-00123.
[12] Id.
[13] Oversight Board, supra note 7.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] United Nations Guiding Principles on Business and Human Rights, A/HRC/17/31 (Mar. 21, 2011) [hereinafter “UNGPs”].
[20] United Nations Development Programme, Gender Dimensions of the Guiding Principles on Business and Human Rights (Nov. 22, 2019).
[21] UNGPs, Principle 12.
[22] Gender dimensions of the Guiding Principles on Business and Human Rights, A/HRC/41/43, (May 23, 2019) [hereinafter “UNGP Gender Dimensions”].
[23] Id. ¶ 1.
[24] Id., Annex ¶ 23.
[25] Id., Annex ¶ 24.
[26] Id.
[27] Id., Annex ¶ 62; see UNGPs, Principle 31, Commentary (establishing that grievance mechanisms must be inter alia rights-compatible).
[28] Facebook Corporate Human Rights Policy, Facebook (Mar. 2021).
[29] Id.
[30] Id.
[31] UNGP Gender Dimensions, Annex ¶ 23.
[32] United Nations Committee on the Elimination of Discrimination against Women, General Recommendation No. 24 (1999) ¶¶ 13-14; see Convention on the Elimination of All Forms of Discrimination against Women, A/RES/34/180, (Dec. 18, 1979), Article 12 [hereinafter “CEDAW”].
[33] United Nations Committee on the Elimination of Discrimination against Women, supra note 32 ¶¶ 13-14. While much of the language in human rights treaties conforms to the gender binary, these rights are applicable to gender non-binary persons. See, e.g., United Nations Committee on the Elimination of Discrimination against Women, General Recommendation No. 33 (July 23, 2015) ¶ 8.
[34] See Inter-American Commission on Human Rights, Access to information, violence against women, and the administration of justice in the Americas, OEA/Ser.L. 154 Doc.19 (Mar. 27, 2015), at 21-39.
[35] ICESCR, Article 15.
[36] ICESCR, Article 12.
[37] United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 24 (Aug. 10, 2017).
[38] Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna (June 25, 1993) ¶ 5.
[39] UNGP Gender Dimensions, Annex ¶ 23.
[40] Id., Annex ¶ 24.
[41] Id., Annex ¶ 62; see UNGPs, Principle 31, Commentary (establishing that grievance mechanisms must be inter alia rights-compatible).
[42] Vienna Declaration and Programme of Action, supra note 38 ¶ 5.