Oversight Board Selects a Case Regarding a Post Containing A Photo of a Topless Couple


JUN 12, 2023


Today, the Oversight Board selected a case appealed by an Instagram user regarding a photo of a topless couple in a pond with their nipples covered by bandages. The post contains a caption sharing that one of the individuals has “a date for top surgery” accompanied with hashtags associated with the LGBTQ+ community. The user started a Patreon fundraiser directing users to the link in their bio.

Upon initial review, Meta took down this content for violating our policy on Sexual Solicitation, as laid out in the Instagram Community Guidelines and Facebook Community Standards. However, upon further review, we determined we removed this content in error and restored it.

We will implement the board’s decision once it has finished deliberating, and we will update this post accordingly. Please see the board’s website for the decision when they issue it.

Case decision

We welcome the Oversight Board’s decision today on this case. The board overturned Meta’s original decision to remove the content from the platform. Meta previously reinstated this content so no further action will be taken on it.

After conducting a review of the recommendations provided by the board in addition to their decision, we will update this page.


Recommendation 1 (Implementing in Part)

In order to treat all users fairly and provide moderators and the public with a workable standard on nudity, Meta should define clear, objective, rights-respecting criteria to govern the entirety of its Adult Nudity and Sexual Activity policy, ensuring treatment of all people that is consistent with international human rights standards, including without discrimination on the basis of sex or gender identity. Meta should first conduct a comprehensive human rights impact assessment to review the implications of the adoption of such criteria, which includes broadly inclusive stakeholder engagement across diverse ideological, geographic and cultural contexts. To the degree that this assessment should identify any potential harms, implementation of the new policy should include a mitigation plan for addressing them.

Our commitment: We will conduct focused internal human rights due diligence on our Adult Nudity and Sexual Activity policy.

Considerations: In announcing its decision and recommendations in January, the board made clear that all users should be treated fairly and that our adult nudity policies should be enforced according to a “workable standard”, but did not issue a blanket policy prescription (e.g. “Free the nipple”) because they recognize that issues of safety, consent and dignity are also at play. We agree with the board’s guidance.

The policy principles for our Adult Nudity and Sexual Activity policy are those that apply to all of our content policies: voice, safety, privacy, authenticity, and dignity. In the case of adult nudity and sexual activity, however, is the wide variation in global attitudes towards, and reception of, such content; the multiple rights involved (e.g., respect of best interests of the child, dignity, and privacy); and the inherent challenge of defining attributes of sexualization or sexual activity that are consistent across cultures, languages, and can be applied at scale. We also want to offer our users positive experiences on our platforms and ensure we address spam and unwanted sexual content that are generally found elsewhere online.

In the past five years, we have updated this policy more than 13 times, with multiple policy development processes in order to address these issues. We’ve sought to understand the inherent risks of both removing and allowing such content. In doing so, we’ve consulted extensively and repeatedly with experts and rights holders, and implemented increasing nuance that seeks to differentiate medical, artistic, and political expressions of nudity and/or sexual activity from other forms, creating the detail and lists that the board has indicated was confusing.

We note this past work has repeatedly shown that allowing all forms of nudity at scale across all gender identities involves risks of severe negative impacts on privacy and dignity and may result in disparate gender impacts, including but not limited to the sharing of non-consensual intimate imagery. These negative human rights impacts and outing risks may be disproportionately severe for women, gender non-conforming, or non-binary individuals. We refer, in particular, to the Gender Dimensions of the UN Guiding Principles on Business and Human Rights (UNGPs), which direct businesses to “always regard sexual harassment and gender-based violence as risks of severe human rights impacts”.

Recognizing the difficulties inherent in this policy area, we will conduct focused internal due diligence on this policy area. In doing so, we will use the UNGPs’ salience criteria, and review how our Adult Nudity and Sexual Activity policy has evolved. We will aim to use the results of this due diligence to inform potential policy changes, including any future policy development processes.

We will also take action to improve the consistency and clarity of guidance to users and content moderators, and will seek specialized guidance from our Civil Rights and Human Rights teams to rigorously uphold rights to non-discrimination. We will share an update on our progress in future Quarterly Updates.

Recommendation 2 (Implementing in Part)

In order to provide greater clarity to users, Meta should provide users with more explanation of what constitutes an "offer or ask" for sex (including links to third party websites) and what constitute sexually suggestive poses in the public Community Standards. The Board will consider this recommendation implemented when an explanation of these terms with examples is added to the Sexual Solicitation Community Standard.

Our commitment: We will conduct policy development that may change or refine our Sexual Solicitation policy to better explain the terms “offer or ask” and “sexually suggestive poses.”

Considerations: We agree that we can clarify our Sexual Solicitation policy to better explain what constitutes an “offer or ask” and “sexually suggestive poses.” However, while we want Community Standards to provide clarity about what is and is not allowed on our platforms, in certain policy areas, including this one, listing out examples would require us to surface the type of harmful and negative content our policies seek to protect against.

Our Sexual Solicitation and Adult Sexual Exploitation policies recognize that some people may use Facebook or Instagram to discuss or speak out against sexual violence and others may discuss protections and advocate for sex workers. While we allow this type of content, we do not allow facilitation and solicitation given concerns about trafficking, lack of consent, or coercion. With this in mind, we will continue striving to provide clear policies while not outlining them in such a way that they could easily be circumvented.

We will provide updates on our progress in future Quarterly Reports.

Recommendation 3 (Implementing in Part)

In order to ensure that Meta’s internal criteria for its Sexual Solicitation policy do not result in the removal of more content than the public-facing policy indicates and so that non-sexual content is not mistakenly removed, Meta should revise its internal reviewer guidance to ensure that the criteria reflect the public-facing rules and require a clearer connection between the "offer or ask" and the "sexually suggestive element." The Board will consider this implemented when Meta provides the Board with its updated internal guidelines that reflect these revised criteria.

Our commitment: We will ensure parity between our internal reviewer guidance and our publicly-facing Sexual Solicitation policy. As described in our response to Recommendation #2, we are also conducting a policy development related to our Sexual Solicitation policy that will explore clarifications to the “offer or ask” and “sexually suggestive element” portions of this policy.

Considerations: As with all updates to our Community Standards, it will take time to finalize our approach to Recommendation #2, which will impact our approach to Recommendation #3. During the policy development process we consult with key stakeholders, including our Civil Rights and Human Rights teams. This policy development, described in our response to recommendation #2, may help us to clarify our language in the Sexual Solicitation policy to better explain the terms “offer or ask” and “sexually suggestive poses.” We will also work with our operations teams to understand how we can operationalize changes to our Sexual Solicitation policy. Any changes will be reflected in updates to the internal operational guidelines we provide to our at scale reviewers. We will share updates on our progress in future Quarterly Updates.