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Business and Human Rights in the Digital Era

Business and Human Rights in the Digital Era

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Responses - Stakeholder Private Sector

Jermyn Brooks, Independent Chair, Global Network Initiative

New technologies have played a catalytic role in support of democratic aspirations in the Middle East and around the world. In her essay Shirin Ebadi eloquently describes how free expression, “the first step to democracy,” facilitates the meaningful realization of other rights, and the impact of virtual communications networks in Iran. But innovations in information and communication technologies (ICTs) present risks as well as opportunities to advance human rights. The challenges of navigating this nexus are too complicated for companies to manage alone, and a growing number of companies, civil society organizations, investors, and academics are collaborating to advance freedom of expression and privacy rights through the Global Network Initiative (GNI).

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Jermyn Brooks is a member of the Board of Directors of Transparency International and member of the board of advisers of the International Institute for Democracy and Electoral Assistance. He was Executive Director and CFO of Transparency International between 2000 and 2003.

Although online censorship and surveillance are most often associated with states that Reporters Without Borders calls “enemies of the Internet”, such as China and Iran, these issues are also contested in democracies. In the United Kingdom, for example, proposed legislation would undo existing constraints and potentially pave the way for mass surveillance.

It is important to recognize that governments and companies have legitimate and significant national security and law enforcement responsibilities. Preventing terrorism, protecting children online, and fighting cybercrime are all critically important state responsibilities that require assistance from technology companies. Worrying potential for government overreach surfaces when government demands, either to block content or handover user data, occur with insufficient oversight and public accountability.

The stakes are raised considerably when these same issues arise in repressive regimes, where states will use similar justifications to pursue entirely illegitimate objectives, cracking down on dissent and jailing bloggers, without providing them with any means of redress. Although technology companies that operate across borders can sometimes take steps to limit their exposure to foreign governments, increasing pressure to open sales offices abroad or regulatory requirements to locate data centers within foreign jurisdictions are eroding this leverage and putting Internet companies in a similar position to telecommunications providers, whose operations require sizeable investments in staff and networks on the ground.

As companies grapple with the human rights implications of their work, several emerging issues further complicate matters. The first is the massive increase in mobile access across emerging economies. There are huge opportunities to address the digital divide, but also new challenges as governments attempt to manage and control newly connected populations. These issues can only be addressed through frank and inclusive dialogue among all stakeholders.

Second, innovations in user-generated content and the cross-border provision of web services have raised the stakes for company decision-making. Companies make decisions about online content based on their own policies as well as on requests from governments, and there are no easy answers to difficult questions.

So what can companies do to make sure they retain the trust of their user base and find an ethical way forward?

First, start with international human rights standards such as the Resolution on Human Rights on the Internet, unanimously endorsed by the UN Human Rights Council in July 2012. Although companies accustomed to working with their home governments on law enforcement or national security may be tempted to divvy up the world between good and bad governments, there is no substitute for international human rights law as an objective framework for handling these issues, and they benefit from wide international support. The Human Rights Council adopted the resolution on the Internet with important support not just from the US and Europe, but also from Tunisia, Brazil, and Turkey among others. Also, there are now practical tools for companies, such as the UN Gguiding Principles on Business and Human Rights, which provide direction for companies on due diligence, risk assessment, and the like. Human rights standards provide direction for companies in tough spots: they can make sure that, at a minimum, demands from governments comply with local law, and they can interpret those requests as narrowly as possible.

Second, companies need not face these challenges on their own. By working together with civil society organizations with expertise on the ground in challenging markets, academic experts and technologists with in-depth expertise on emerging issues, and investors who see the profit opportunities in a socially responsible approach, companies can more accurately gauge risks and identify opportunities to advance rights, and raise their voices when they find governments acting in ways that infringe on free expression and privacy rights.

Third, embrace accountability. Although it is understandable that companies are hesitant to open up as sensitive an aspect of their operations as relations with government agencies to outside scrutiny, users are understandably hesitant to take companies at their word without some means of credibly demonstrating that they take free expression and privacy rights seriously. This is a lesson that has been thoroughly learned in other industries subject to human rights criticisms, from labor standards in apparel to transparency in oil, gas, and mining. The companies in the GNI agree to have their policies and procedures on responding to governments independently assessed, the only such process that exists for technology companies.

Technology companies ranging from telecommunications to web services have enabled access to information and the exchange of ideas around the world with undeniable benefits for society. But as Ebadi notes, governments seeking greater control over the Internet are not sitting still. As governments find new ways to use technology for surveillance and the suppression of rights, companies increasingly find themselves caught between government actions and their responsibility to respect the human rights of their users. By working together and with other stakeholders, including Internet users and civil society groups from countries where Internet users face the most acute threats, as well as from countries where online free expression and privacy are facing gradual yet serious erosion, they can fulfill the promise of the Internet and help to realize human rights worldwide.

Gordon Süß
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