News Every Day | 01 July 2022, 19:57

Facebook Asks Judge to ‘Crack the Whip’ in Attempt to Silence a Black Whistleblower

A lawyer representing Facebook’s parent company Meta called on a judge to “crack the whip” against a Black South African whistleblower on Monday, requesting a gagging order to prevent him from speaking to the media.

The whistleblower, Daniel Motaung, was paid $2.20 per hour to be a Facebook content moderator in Kenya. He was fired by Facebook’s outsourcing partner, Sama, in 2019 after he led more than 100 of his colleagues in a unionization effort for better pay and working conditions. He suffers from post-traumatic stress disorder as a result of his work, and is now suing both Meta and Sama in a Nairobi court, alleging that he and his former colleagues are victims of forced labor, human trafficking and union-busting.
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Motaung’s experiences at Sama were first reported by TIME in February 2022. He has since spoken about his ordeal publicly, including at a panel discussion on June 14 in London alongside another Facebook whistleblower, Frances Haugen. At a hearing in a Kenyan labor court on June 27, Sama’s lawyer Terry Mwango said that Motaung speaking to the media and in public about his experiences risked prejudicing court proceedings. Mwango requested a formal order to prevent Motaung and his lawyers from speaking about the case in public.

Meta’s lawyer, Fred Ojiambo, seconded Mwango’s request. “Unless the petitioner and particularly his advocates are injuncted by this court from continuing to deal with this matter in this way, there will be complete and total contempt, not only of the proceedings, but of the court and the judicial officer dealing with it,” Ojiambo said.

Addressing the judge, he added: “It’s my honorable submission, lord, that your lordship crack the whip, this time around.”

In court Motaung’s lawyer Mercy Mutemi rejected the allegations that her client had breached Kenya’s sub judice rules, saying he and his representatives had refrained from discussing specifics of the case in public to comply with Kenyan law. She said Meta and Sama had not presented any evidence to show a gagging order was necessary.

The judge refused to immediately impose a gagging order, but invited Meta and Sama to bring contempt of court proceedings if they could find evidence in support.

Racial justice advocates condemned Facebook for the attempt to silence Motaung. “In a court of law, Facebook has confirmed in the most explicit way imaginable that they think Black people are property to be controlled rather than people to be respected,” said Rashad Robinson, president of the U.S.-based civil rights group Color of Change, in a statement to TIME. “Treating Black people as second-class digital citizens and high-exploitation employees is a pattern for Facebook, and their selective silencing of a Black whistleblower proves that only regulation will bring them in line with 21st century labor standards.”

Color of Change says it is calling on Meta to immediately drop its demand for a gagging order against Motaung.

“We need to make sure that Black employees suffering under Facebook’s ‘sweatshop’ labor conditions are free to blow the whistle without Facebook ‘whipping’ them into silence.” Robinson said. “We have fought too long to be silenced by any whip that Facebook selectively enforces against Black people, whether users on its platform, users of its ad services or employees of its subcontractors. We need regulation now.”

Although Facebook requires its employees to sign restrictive non-disclosure agreements, it is rare for the company to explicitly attempt to silence a whistleblower who has gone public. Haugen, the Facebook whistleblower who leaked thousands of pages of internal documents last year, and who is white, has said she has not faced similar attempts. “After I came out, I got the benefit of the race and gender issues,” she said during the panel discussion with Motaung last month. “I think it would have been very difficult for Facebook to come after me at this point because it would be a huge PR liability for them. We in our society have norms against, like, picking on women, for example. So I want to completely acknowledge my privilege.”

Meta did not respond to multiple requests for comment. Ojiambo did not respond to a request for comment. Motaung, through his lawyers, declined to comment. Mutemi declined to comment.

In an email, Sama’s chief marketing officer Suzin Wold said: “The judge in this case cautioned all the parties against commenting on the court case in any forum. Respect for [the] judge’s orders and that cases should be addressed by the court are important principles of Kenyan law that we intend to respect. Given that, we are unable to comment any further.”

In 2020, in the wake of widespread racial justice protests in the U.S., Facebook CEO Mark Zuckerberg wrote on Facebook that he believed that “Black lives matter.” He added: “I know Facebook needs to do more to support equality and safety for the Black community through our platforms.”

Neither Sama nor Facebook responded to questions asking whether they planned to proceed with formal legal requests for a gagging order against Motaung.

In June, Sama’s CEO Wendy Gonzalez appeared at a conference in Toronto where she was asked on stage about Motaung’s allegations. “We are supportive of feedback loops including everything from whistleblower [sic] in anonymous digital media all the way to physical media,” she said. “So ultimately at the end of the day, all concerns should be raised and they should be addressed very seriously.”