What the Oversight Board’s action on Trump’s ban means for fact-checking on Facebook

Donald Trump is still not allowed on Facebook, for now.

Facebook’s Oversight Board decided to uphold the platform's indefinite suspension of the former president after he shared supportive messages of his supporters’ siege of the U.S. Capitol. But there’s a catch.

The board gave Facebook six months to revisit the decision, criticizing its open-ended nature. Facebook should respond with a decision that is "consistent with the rules that are applied to other users of its platform," the board said in a statement. 

One thing is clear: Trump has not adjusted his false rhetoric around the election. Without access to the mic of big social media platforms, he has continued to question the results through email blasts to reporters and a new blog.

The board’s decision may have  implications for what politicians will be allowed to say on Facebook in the future.

The posts that got Trump suspended violated Facebook’s Community Standard on Dangerous Individuals and Organizations.

Amid the violence at the Capitol on Jan. 6, Trump posted a video on Facebook, Instagram and other social media websites. He told the crowd to go home in the video, but not without repeating falsehoods about the outcome of the 2020 presidential election, which had fueled the riot. He also told the rioters that "we love you" and "you’re very special."

Trump posted another Facebook statement that evening that said, "These are the things and events that happen when a sacred landslide election victory is so unceremoniously viciously stripped away from great patriots who have been badly unfairly treated for so long. Go home with love in peace. Remember this day forever!"

After years of Trump using their platforms to spread falsehoods, social media companies had enough. 

Facebook moved first, banning Trump for 24 hours as it evaluated the developments on Jan. 7. Facebook then suspended his accounts "indefinitely" and referred the case to its independent advisory board.

On Jan. 8, Twitter permanently banned Trump from posting on the website over the risk he could incite violence. YouTube followed suit with a temporary, undefined suspension that is still in effect.

Facebook established the Oversight Board in 2020 to make the final call on Facebook’s content decisions. The board is comprised of experts in free speech, law, technology, journalism and government. The board’s judgments are supposed to work in a similar way to the Supreme Court — they are binding, and CEO Mark Zuckerberg has said neither he nor anyone else at Facebook will overrule it.

On May 5, the board decided to uphold Trump’s suspension while telling Facebook to revisit the ban within six months. The decision said it "was not appropriate for Facebook to impose the indeterminate and standardless penalty of indefinite suspension." 

It added: "In applying a vague, standardless penalty and then referring this case to the Board to resolve, Facebook seeks to avoid its responsibilities. The Board declines Facebook’s request and insists that Facebook apply and justify a defined penalty."

Facebook will now have to re-examine Trump’s ban and decide an appropriate penalty that is consistent with its rules for severe violations that are applied to other users.

The final penalty, according to the board, must be based on the gravity of the violation and the prospect of future harm. If Facebook decides to restore Trump’s accounts, the board wrote, it must address future violations promptly and in accordance with its policies.

The board said it’s not always useful to draw a distinction between political leaders and influential users, as all users with large audiences can contribute to serious risks of harm.

Still, it noted that heads of state and other high officials of government can have a greater power to cause harm than other people. 

"If a head of state or high government official has repeatedly posted messages that pose a risk of harm under international human rights norms, Facebook should suspend the account for a period sufficient to protect against imminent harm," the board wrote. "Suspension periods should be long enough to deter misconduct and may, in appropriate cases, include account or page deletion.

Facebook said it will consider the board’s decision, review its other recommendations around political figures, and will determine an action in Trump’s case that is "clear and proportionate." 

The board’s decision did not mention fact-checking or Facebook’s third-party fact-checking program. Through the program, fact-checkers, including PolitiFact, evaluate provably false claims circulating on the platform. Fact-checkers review and rate public Facebook and Instagram posts, articles, photos, videos and some ads. If a post is found to be inaccurate, Facebook downgrades how far the post spreads and can apply other penalties, as well. 

Under rules set by Facebook, however, the speech of an elected official or someone seeking office is not eligible to be fact-checked. That meant, as president, Trump could post false claims without them being fact-checked, marked as false and subsequently downgraded in News Feed.

This policy (which the board didn’t weigh in on) gives elected leaders a privilege over ordinary users.

The company’s decision to exempt politicians has faced criticism for years. The company defines politicians as candidates running for office, current office holders — and, by extension, many of their cabinet appointees — along with political parties and their leaders. 

Facebook says it only deletes posts when the content promotes hate speech, harassment, threats of violence and risks causing significant harm. 

Once a fact-checker rates a piece of content as false or partly false, it appears lower in news feeds to significantly reduce the number of people who see it. The platform takes further action against repeating offenders with more restrictions. These can include reduced distribution, removal of the ability to monetize and advertise, and barring them from registering as a news page for a given time period. 

As it stands, if the company decides to reactivate Trump’s accounts, his posts would be eligible for evaluation because he’s no longer an office holder or political candidate. If found false, Trump’s posts could face fact-checking penalties on Facebook for the first time.