On Wednesday 22nd September, 2021 Judgement was granted in favour of Gambia Government at the US District Court for the District of Columbia granting almost the entirety of The Gambia’s discovery request from Facebook under 28 USC 1782.
As a result of this Order, Facebook will now be required to produce all of the content it deleted from the banned Myanmar accounts relating to anti-Rohingya hate speech and incitement to violence. It must also produce its nonprivileged documentation that relates to the internal investigation of its role in the Rohingya genocide.
This is welcoming news for The Gambia’s case against Myanmar as it means that compliance of this Order by Facebook would ensure a significant production of information that could support the Gambia in its current case against Myanmar before the International Court of Justice (ICJ).
In the course of delivering the judgment, the judge, Honourable Zia M. Faruqui noted and concluded that:
After seventeen years of existence, Facebook has grown self-aware. It has realized that “[t]he need for extensive content moderation is inherent in any platform that is built upon user-generated content, and with over 2 billion users, this is a task of immense complexity and intensity for Facebook.” HRIA at 25. Indeed, the internet is littered with ads by Facebook touting their support for updated content moderation and internet regulations to handle “today’s toughest challenges”. Although an update to the SCA is sorely needed as it “was written prior to the advent of the Internet and the World Wide Web,” Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir. 2002), none is needed here. Facebook’s concern was that the SCA prevented the requested disclosure. However, the SCA has a well-established path for disclosure of deleted content. Facebook can act now. It took the first step by deleting the content that fueled a genocide. Yet it has stumbled at the next step, sharing that content. Failing to do so here would compound the tragedy that has befallen the Rohingya. A surgeon that excises a tumor does not merely throw it in the trash. She seeks a pathology report to identify the disease. Locking away the requested content would be throwing away the opportunity to understand how disinformation begat genocide of the Rohingya and would foreclose a reckoning at the ICJ. Facebook describes its remediation efforts for its role in what happened in Myanmar as “some of the most important work being done at Facebook. . . . The weight of this work, and its impact on the people of Myanmar, is felt across the company.” Su, supra. The Court’s decision compels Facebook to live up to its words. For the foregoing reasons, The Gambia’s request for de-platformed content and related internal investigation documents is GRANTED and its request for a deposition with Facebook is DENIED.
