Facebook has been accused of using Trademark to take down the “Real Facebook Oversight Board” – a site run by Facebook critics.
Facebook has faced a number of questions surrounding its moderation practices over the years. Now, another controversy is being added to the pile of complaints people have of the social media platform.
Late last month, Facebook critics launched a site known as “The Real Facebook Oversight Board”. The site is a response to Facebook’s “Oversight Board” supposedly meant to take pressure off of Facebook’s moderation teams. From TechCrunch at the time:
Today a group of academics, researchers and civil rights leaders go live on with ‘The Real Facebook Oversight Board’ which is designed to criticize and discuss the role of the platform in the upcoming US election. The group includes Facebook’s ex-head of election security, leaders of the #StopHateForProfit campaign and Roger McNamee, early Facebook investor. Facebook launched its own ‘Oversight Board’ last November to deal with thorny issues of content moderation, but Facebook has admitted it will not be overseeing any of Facebook’s content or activity during the course of the US election, and will only adjudicate on issues after the event.
The move was seen as an acknowledgment of the difficulty of decision-making inside Facebook. Decisions on what controversial posts to remove fall on the shoulders of individual executives, hence why the Oversight Board will act like a ‘Supreme Court’ for content moderation.
However, the Oversight Board has admitted it will take up to three months to make a decision and will only make judgments about content that has been removed from the platform, not what stays up.
Facebook has invested $130 million in this board and announced its first board members in May, including ex-prime minister of Denmark, Helle Thorning-Schmidt and the ex-editor-in-chief of the Guardian, Alan Rusbridger.
The activist-led ‘Real Facebook Oversight Board’ includes the ex-President of Estonia, Toomas Henrik Ilves, an outspoken critic of Facebook and Maria Ressa, the journalist currently facing imprisonment in the Philippines for cyberlibel.
Unfortunately, not even two weeks into it’s life, Facebook has called in the lawyers to take the site down. In a tweet, Carole Cadwalladr posted a Trademark complaint against the site, causing the whole site to go offline:
Because nothing says ‘free speech’ quite as much as a multi-billion dollar corporation with a global monopoly getting its critics shut down & booted off the internet pic.twitter.com/wwj8ctGZgP
— Carole Cadwalladr (@carolecadwalla) October 7, 2020
The tweet caused some to say that this is Facebook trying to silence criticism and trample on free speech. From Digital Information World:
Facebook is a juggernaut in the world of tech, and this has led many to end up suggesting that the social media platform might just be a little too powerful in a lot of ways. While Facebook has repeatedly expressed a dedication to oversight and improving its transparency in a lot of ways, the tech giant is clearly not willing to let any third parties get involved in the oversight process and the latest example of this might just be the single most damning example of Facebook trying to trample free speech at every turn.
This is referring to an incident that just occurred where Facebook had the website for the Real Facebook Oversight Board, a committee of journalists, academics and legal experts, shut down after falsely accusing them of phishing and complaining to the central ISP authority about this behavior. The site is now offline, and many are condemning this as an example of Facebook not really letting any independent parties investigate its practices and suggests that the social media platform may not be quite as enthusiastic about oversight as it is trying to imply.
This act by Facebook is particularly concerning when one thinks about the fact that the company’s own oversight board is not going to be convening until a few weeks from now, and changes being made to prevent manipulation of the upcoming US election does not seem to be on the agenda. The independent oversight committee was pushing for Facebook to change its policies in order to avoid influencing the election in the same manner as 2016 when the Cambridge Analytica Scandal occurred, and Facebook’s brazen attempts to silence it critics does not bode well for the future.
It’s extremely difficult to follow the complaint here. On the one hand, Facebook appears to complain about Trademark violations. Facebook clearly contends that the site violates the Facebook trademark. However, the site is clearly in reference to an oversight board. If Facebook said that it owns a trademark to their Oversight Board as well, they might have a slightly stronger case, but this is clearly not what the complaint is about. As a result, the complaint is already flimsy at best.
Even under Fair Use Trademark law, a case can be made that the domain is Nominative fair use. In addition to this, the site is clearly meant to be criticism towards the site itself.
While things are already starting to fall sideways in the story, where things really fly off the rails is when the ISP in question basically accused the site of being a phishing website. Phishing is the act of trying to steal sensitive information such as login credentials. What does this have to do with the Trademark claim in this case? Nothing at all as far as we can tell. Based on the screenshots we’ve seen, we couldn’t find where Facebook said that the site is engaging in phishing.
Additionally, if you replicate the screen shot in the complaint, what is highlighted is the domain name redirecting to another site. This isn’t actually phishing by any means. Additionally, the site looks nothing like Facebook and it is clearly showing different logo’s. The screen shot highlights the word Facebook and the warning message that democracy is at risk and accusing Facebook of suppressing the votes of visible minorities. An opinion to be sure, but again, how is this evidence of phishing exactly? We definitely can’t make heads or tails where the phishing complaint came from especially with the evidence provided.
What’s more is if the ISP simply stuck to what Facebook originally complained about, the site itself (again, based on the screenshot) looks nothing like Facebook. The best case that can be made is that the word “Facebook” appears on the site. Again, this falls back to the Trademark Fair Use exceptions. The site is clear that they are not Facebook and the site is further clear about this when it directly criticized Facebook. The best case that can be made is that the word “Facebook” appears in the URL – even then, a case can be made that it’s Trademark Fair Use.
Other’s have examined the details of this case and have also showed skepticism that there is a case to be made here. Mike Masnick of Techdirt commented that the complaint made against the site is bizarre:
It’s still not entirely clear what this group will do but it claims that it will pull publicity stunts to drive attention to moves by Facebook it disagrees with:
“We will use stunts, viral video, celebrity endorsement and skillful media management to throw a spotlight on the real-time threats to democracy from the misuse of social media platforms and big tech.”
As Casey Newton wrote, even if he was initially skeptical of the effort, when viewed as a media-seeking art project, perhaps it can have an impact.
And the first of its “stunts” seems to have been this name, which mocks the actual Oversight Board… and now it appears that Facebook fell face first into the trap. According to reporter Carole Cadwalladr (a very vocal Facebook critic), Facebook filed a trademark complaint about the group’s website, realfacebookoversight.com. And the company hosting the website suspended the domain, noting that it violated their anti-phishing rules (which seems… silly).
This seems like an unfortunately stupid move by Facebook. For years we’ve discussed how parody sites that mock or criticize websites are allowed, even when those sites use the trademarked names of the companies they’re criticizing. Facebook could have just let this site stay. It wasn’t trying to trick anyone. It was criticizing Facebook and even if I can understand the company’s frustration at some of the people involved, and their history of intellectually dishonest criticisms of the company, this move only creates a Streisand Effect that elevates this critical group as something Facebook is afraid of.
We can definitely agree that Facebook’s actions will ultimately elevate the visibility of the group in the first place. The fact that we are writing this article in the first place is an obvious case in point. What’s more is that this whole scenario projects the image of a big multinational corporate entity trying to not only stamp out criticism, but also trying to bully the little guy. The fact that Facebook not only went after the site, but also went after it within weeks of its inception certainly furthers that point (Cadwalladr certainly asserted this, but even if she didn’t, others would have connected the dots for her).
Ultimately, this is likely going to wind up being a great example of how you don’t handle criticism. Making counterarguments is a small, but valid step. Taking action and proving critics wrong is a great step to addressing criticism. Trying to use the law to shut down your critics voices only serves to make you look bad and, worse, creates martyrs in the process. Allow us to join the collective facepalm of what Facebook did here.
Drew Wilson on Twitter: @icecube85 and Facebook.
