Going beyond the guidelines - legal and moral responsibilities on ICT companies

YouTube this week introduced a face-blurring tool to protect activists from being recognised by their online activities.  Human rights groups will no doubt welcome the initiative as it comes in response to calls from groups such as Witness.  Some web companies demonstrate a commitment to not only reducing the negative human rights impacts of their activities, but also to actively improving the positive impacts that they may have.  The uptake of some of the voluntary guidelines on corporate social responsibility and human rights demonstrates a willingness to go beyond the minimum requirements.  But what responsibilities do tech companies really owe to users in other countries?  Is this solely a question of moral responsibility and ethics, or is there a legal obligation?  And should moral responsibility be reflected in a legally-binding regime? Broadly speaking, international human rights law is only binding on States, not companies or individuals.  States have obligations to persons within their jurisdiction. In order to protect the rights of persons within their jurisdiction, States may need to regulate the conduct of companies operating there.  In this way, a State may use its domestic law to impose obligations on companies in an effort to implement its obligations under international law.  However, in many cases there will not be any relevant domestic law, particularly in States that do not have a robust approach to human rights protection or those that are actively abusing their residents’ human rights.  So, while international human rights law provides a useful benchmark for companies in understanding the scope and permissible limits on human rights, it does not actually impose any direct obligations on companies.

Even though international human rights law does not impose direct obligations on companies, there are still ways in which companies may be legally liable for actions that breach individual human rights.  Red Flags provides a great, very brief summary of some of the ‘liability risks for companies operating in high-risk zones’ and I will mention a few of the key legal areas in the following discussion.  It is also worth noting that actions that have an adverse human rights impact can be regulated by laws that are not specifically targeted at ‘human rights’ protection.  For example, many countries have criminal legislation that operates extraterritorially for companies that bribe foreign public officials (this is mandated under the UN Convention against Corruption and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions).

Human rights obligations under US law

The US is unusual in potentially imposing domestic liability on companies for actions not complying with international law standards even when they occur beyond US territory.  The Alien Tort Claims Statute (28 USC §1350) is the most (in)famous of these, with companies potentially having civil liability for actions that they commit ‘in violation of the law of nations or a treaty of the United States’.  Yahoo! previously settled a case that was brought under the ATS arising from the alleged provision of information by a Yahoo! subsidiary to the Chinese Government that enabled authorities to identify, arrest and subsequently torture political activists (Wang Xiaoning v Yahoo!).  Similarly, Cisco is in the middle of defending an action under the ATS as a result of their provision of software to the Chinese Government that is alleged to have been a part of the ‘Great Firewall of China’ that enabled the torture of political dissidents (Du v Cisco and Doe v Cisco).  The future of actions against companies under the ATS is currently in the balance.  This is because the Supreme Court is grappling with the question of whether companies (ie legal persons, as opposed to ‘real’ persons) can be liable under the ATS in the case of Kiobel v Royal Dutch Petroleum Co.  Depending on the decision in Kiobel, companies that commit major human rights violations may find themselves squarely in the cross hairs of ATS litigants in the US courts.

It had been argued that the Torture Victim Protection Act (18 USC §2340) creates liability for corporations as well as individuals who committed acts of torture outside of the United States.  After an inconsistent approach in various courts, in April of this year the Supreme Court held unanimously that the TVPA only applies to natural persons, not organisations (and, by corollary, not to corporations) (Mohamad v Palestinian Authority).

Two pieces of legislation are worth mentioning even though they do not create liability as such: The California Transparency in Supply Chains Act; and the Global Online Freedom Act.  Since entering into force at the start of this year, the Transparency in Supply Chains Act requires retailers or manufacturers doing business in California with annual worldwide gross receipts exceeding $100 million to disclose via a ‘conspicuous link’ on their main website their efforts to address risks related to slavery and human trafficking in their supply chains.

At the federal level, the Global Online Freedom Act is a Bill that aims to ‘prevent United States businesses from cooperating with repressive governments in transforming the Internet into a tool of censorship and surveillance, to fulfill the responsibility of the United States Government to promote freedom of expression on the Internet, to restore public confidence in the integrity of United States businesses’.  It has been floating around in various incarnations for several years, with the most recent version being passed by a House Committee on 27 March.  Similar to the Transparency in Supply Chains Act, the GOFA would create a reporting regime for internet communications services companies.  Companies would be required to detail their ‘human rights due diligence’ (drawing on the OECD Guidelines for Multinational Enterprises), privacy policies and policy on advising users when content has been filtered or blocked.  It would also establish export controls on certain telecommunications equipment.  The jury seems to be out on whether the latest incarnation of the GOFA could eventually become law, but in any case it does not seem likely that it will enter into force any time soon.

Moral obligations and duties beyond the law?

Anupam Chander wrote an interesting article setting out some of the philosophical arguments that could form the basis for a moral obligation owed by web companies to people in the ‘unfree’ world.  He argues that it is erroneous to apply the same ideas about corporate obligations (or lack thereof) in their interaction with citizens in a free society to corporate interactions with those living in repressive regimes.  As part of this, he argues that ‘given the special role of new media in empowering or oppressing individuals, it seems incumbent upon us to demand the inculcation of a professional ethic among new media companies to protect the freedom-enhancing aspects of cyberspace’.  He explains that ‘new media can either help give voice to dissidents or help perfect totalitarianism’.

Since the Arab Spring, there have certainly been some compelling arguments made about the power of web companies to affect the rights of users in repressive regimes and the moral responsibility that this creates.  However, it is not just the persuasiveness of the arguments about a moral responsibility that cause web companies to go above and beyond the low bar that is set by the international legal framework.  Instead, there seems to be something delightfully self-reinforcing about the freedom of the internet and web companies’ reliance on the trust of their users.

In other global businesses, it is often not the companies’ customers whose human rights are most likely to be affected by the companies’ actions.  For example, in the extractive industries, workers in Burma who may be subject to labour rights violations by a multinational company are not intended to be customers for the oil and gas that they are working to extract.  Instead, the customers are half a world away in developed countries in Europe and America.  This contrasts with a social networking business such as Twitter, where individuals in repressive regimes such as Egypt are able to be users of the product.  While perhaps not possessing the commercial clout of users in more wealthy markets, they are nonetheless part of the business structure.

Moreover, web companies’ branding and reputation is often tightly intertwined with notions of freedom of information and expression. Google’s mission is ‘to organize the world’s information and make it universally accessible and useful’.  In light of this mission statement, being implicated in censorship and suppression of freedom of expression would undermine their brand credibility.  The richness of information sharing and transparency on the internet also makes it more difficult for web companies to adopt sloppy human rights policies because their users are likely to catch them out.  Companies that rely on users’ willingness to share their personal information using their products cannot afford to be caught out too many times!

While there may not be a perfect alignment between the human rights policies that it is in a web company’s business interests to uphold and the human rights standards embodied in international law, there is at least some overlap.  It is this overlap that encourages companies to adopt voluntary guidelines and participate in industry initiatives.