The Last Frontier of Constitutionalism is… Facebook? Assessing the Oversight Board’s first handful of decisions

The Oversight Board – which was momentarily dubbed “the Supreme Court of Facebook” – finally started to hand down decisions on content moderation in 2021. The Board is an independent institution that, despite being initially founded and funded by Facebook, is now administered by an irrevocable trust. It can hear appeals from Facebook and Instagram users when content is either removed or preserved by the company. The Board has full control over its docket and its decisions to uphold or reverse Facebook’s calls are binding. In this working paper, I argue that the Board’s first decisions were heavily influenced by digital constitutionalism; “the ideology which aims to establish and ensure the existence of a normative framework for the protection of fundamental rights and the balancing of powers in the digital environment” (CELESTE, 2019). Moreover, I show why this is a step in the right direction and how it may help better protect fundamental rights online going forward.