Meta Oversight Board: DSLU submission in prisoners of war case

Digital Security Lab Ukraine (DSLU) has submitted public comments to the Meta Oversight Board on a case concerning a video that reveals the identity of an Armenian prisoner of war (PoW). The video supposedly records alleged war crimes committed by Azerbaijan in the ongoing Nagorno-Karabakh conflict. In our contributions, we suggest Meta to reconsider their policies on preservation of evidence, as well as work on technical improvements to safeguard the identity of PoW against unnecessary publicity in the relevant circumstances.

In October 2022, a Facebook user posted a video depicting Azerbaijani soldiers searching through rubble and pulling out people who appear to be Armenian soldiers. In the accompanying caption, the user states that ‘the video depicts Azerbaijani soldiers torturing Armenian prisoners of war’. The video was edited to hide the Azerbaijani soldiers’ faces, the face of one injured Armenian soldier pulled from the rubble is visible. Though the publication violated Meta’s Coordinating Harm and Promoting Crime Community Standards, Meta did not take it down under its ‘newsworthiness allowance’. It instead referred the case to the Oversight Board, which will determine how to best moderate the video and similar content. 

DSLU finds this case to be a perfect opportunity to fine-tune Meta’s policies regarding PoWs (and other vulnerable groups) depiction, a crucial issue also applicable to the Ukrainian context. Hence, DSLU prepared its contributions addressing PoW protection from both humanitarian and human rights law perspectives. The full text of the submission to Meta can be found below.

International humanitarian law (IHL) standards. Article 13 of the III Geneva Convention (GC III) protects prisoners of war (PoW) against «acts of violence or intimidation, … insults and public curiosity». Interpreting this rule, the ICRC stressed that the publication of PoWs’ images is outlawed if individuals can be identified or are depicted in a humiliating manner. In 1991, the British Red Cross Society lawyers noted that the notion of «public curiosity» requires clarification since such publications may serve legitimate public interests of discovering the facts about international crimes and other international law violations. These rules were drafted to protect PoWs from the capturing State, safeguarding against the publication of images by its representatives and media.  

The rise of online platforms destroyed the capturing State’s media monopoly and enabled ordinary users to publish the images of PoW. Such posts occur when civilians observe the capturing and record it, when leaked information is published from private accounts, or if the soldiers themselves publish the process of PoWs capture. In such circumstances, the classic rules of IHL hardly apply, primarily where the public interest exception covers the impugned content.

Indeed, GC III expressly prohibits the depiction of PoWs for propaganda purposes, i.e., where it is done in a humiliating manner and in violation of privacy and dignity. However, the history of modern wars exemplifies the voluntary participation of PoWs in press conferences or interviews disclosing important information on illegal military orders, such as to commit war crimes or crimes against humanity. The Russia-Ukraine war context presented various instances of voluntary publicity of PoWs (here and here). Hence, where no dangerous, humiliating, or denigrating circumstances are present, a publication with PoW itself should not be considered in breach of IHL or international human rights law.

Preservation of evidence and public interest. If no explicit or inferred consent on publication is provided, its acceptability under IHL shall depend purely on the importance of the data contained in the image. For example, if the evidence of maltreatment of the PoWs is recorded, its availability may be crucial for further prosecution of the offenders, while social media may be the only source of such data. Thus, its removal is highly undesirable. Even if the image violates the platform’s policies, the platform shall preferably limit access to the publication rather than remove the material. Another instance where removal of publication is undesirable is when a PoW is labeled as «missed», and the social media post may remain the only available information on their status. In this case, knowing the person’s fate would be of paramount interest to the public.

Mitigating harms for PoWs and the audience. DSLU encourages the initiative to hide shocking information with warning screens rather than removing it from the platform entirely. Furthermore, to protect the dignity of PoWs, where alternative versions of the same image or video are available with the faces of PoWs altered, these anonymized versions shall remain available to the general public. At the same time, the original versions shall be archived by platforms for further investigation purposes. If there is explicit consent of PoWs on recording and disclosing the information publicly or it can reasonably be inferred from their behavior, it is unnecessary to cover, blur, or alter faces. This requirement shall also not apply to cases of missed individuals and the apprehension of the military leadership for future trials before a military tribunal. The ICRC likewise supported this approach as an exceptional case under Article 13 of GC III.

Moderation principles. Content moderation policies shall highly depend on the category of cases the company faces and the context in which it operates in the conflict region. When international crimes are expected or widely committed during the conflict, more information shall remain available or, at least, preserved as potential evidence. When moderating the content related to PoWs, Meta shall be guided by the following principles:

  • Abstain from removing content depicting PoWs when explicit consent of PoWs on recording and publication is provided or can be reasonably inferred and there is no evidence of inhumane or undignified treatment towards such persons;
  • Depiction of PoWs for propaganda purposes, where they are subjected to torture, inhumane or degrading treatment, shall be prohibited and removed;
  • Where content depicts international crimes or mass human rights violations, it shall remain available on the platform as evidence with an application of a warning sign on the content’s sensitivity;
  • Where numerous versions of the exact depictions are available, the version with the anonymized PoWs shall be preserved on the platform. In contrast, the version disclosing the faces of PoWs shall be removed from the platform but maintained by the company for evidence. It shall remain on the platform if it depicts the missed individual or a person subjected to international justice;
  • Questionable content, or content containing PoWs and qualified as hate speech, calls to violence, or other illegal incitements, shall be removed. It shall likewise be added to the database related to the conflict since the potential evidence of committing atrocities found therein may necessitate its preservation;
  • Meta shall develop comprehensive policies for preserving (notwithstanding removal from platforms for any Community Standards’ breaches) and disclosing evidence to the competent authorities investigating international crimes.