“The digital access industry is in the business of digital expression (…). Since privately owned networks are indispensable to the contemporary exercise of freedom of expression, their operators also assume critical social and public functions. The industry’s decisions (…) can directly impact freedom of expression and related human rights in both beneficial and detrimental ways.” [Report of the Special Rapporteur on the right to freedom of expression, June 2017]

The Internet is often portrayed as a disruptive equalizer, an information medium able to directly give individuals access to information and provide a platform to share their opinions unmediated. But the Internet is also a tool for surveillance, censorship, and information warfare. Often states drive such practices, but increasingly the private sector plays a role. While states have a clear obligation to protect human rights on the Internet, questions surrounding the human right accountability of the private sector are unclear. Which begs the question what the responsibility is of the private industry, which runs and owns much of the Internet, towards human rights?

During the 35th session of the United Nations (UN) Human Rights Council this month, David Kaye, UN Special Rapporteur (UNSR) for the right to freedom of expression, presented his latest report [1], which focuses on the role of the private sector in the provision of Internet and telecommunications access. The UNSR on freedom of expression is an independent expert, appointed by the Human Rights Council to analyse, document, and report on the state of freedom of expression globally [2]. The rapporteur is also expected to make recommendations towards ‘better promoting and protection of the right to freedom of expression’ [3]. In recent years, the UNSRs on freedom of expression increasingly focus on the intersection between access to information, expression, and the Internet [4].

This most recent report is a landmark document. Its focus on the role and responsibilities of the private sector towards the right to freedom of expression presents a necessary step forward in the debate about the responsibility for the realization of human rights online. The report takes on the legal difficulties surrounding the increased reliance of states on access to privately owned networks and data, whether by necessity, through cooperation, or through coercion, for surveillance, security, and service provision. It also tackles the legal responsibilities that private organizations have to respect human rights.

The first half of Kaye’s report emphasises the role of states in protecting the right to freedom of expression and access to information online, in particular in the context of state-mandated Internet shutdowns and private-public data sharing. Kaye highlights several major Internet shutdowns across the world and argues that considering ‘the number of essential activities and services they affect, shutdowns restrict expression and interfere with other fundamental rights’ [5]. In order to address this issue, he recommends that the Human Rights Council supplements and specifies resolution 32/13, on ‘the promotion, protection and enjoyment of human rights on the Internet’ [6], in which it condemns such disruptions to the network. On the interaction between private actors and the state, Kaye walks a delicate line. On the one hand, he argues that governments should not pressure or threaten companies to provide them with access to data. On the other hand, he also argues that states should not allow companies to make network management decisions that treat data differentially based on its origin.

The second half of the report focusses on the responsibility of the private sector. In this context, the UNSR highlights the responsibilities of private actors towards the right to freedom of expression. Kaye argues that this sector plays a crucial role in providing access to information and communication services to millions across the globe. He looks specifically at the role of telecommunication and Internet service providers, Internet exchange points, content delivery networks, network equipment vendors, and other private actors. He argues that four contextual factors are relevant to understanding the responsibility of private actors vis-à-vis human rights:

(1) private actors provide access to ‘a public good’,
(2) due to the technical nature of the Internet, any restrictions on access affect freedom of expression on a global level,
(3) the private sector is vulnerable to state pressure,
(4) but it is also in a unique position to respect users’ rights.

The report draws out the dilemma of the boundaries of responsibility. When should companies decide to comply with state policies that might undermine the rights of Internet end-users? What remedies should they offer end-users if they are complicit in human rights violations? How can private actors assess what impact their technologies might have on human rights?

Private actors across the spectrum, from multinational social media platforms to the garage-based start-ups are likely to run into these questions. As the Internet underpins a large part of the functioning of our societies, and will only further continue to do so as physical devices increasingly become part of the network (aka the Internet of Things), it is even more important to understand and allocate private sector responsibility for protecting human rights.

The report has a dedicated addendum [7] that specifically details the responsibility of Internet Standard Developing Organizations (SDOs). In it, Kaye relies on the article written by Corinne Cath and Luciano Floridi of the Oxford Internet Institute (OII) entitled ‘The Design of the Internet’s Architecture by the Internet Engineering Task Force (IETF) and Human Rights’ [8] to support his argument that SDOs should take on a credible approach to human rights accountability.

Overall, Kaye argues that companies should adopt the UN Guiding Principles on Business and Human Rights [9], which would provide a ‘minimum baseline for corporate human rights accountability’. To operationalize this commitment, the private sector will need to take several urgent steps. It should ensure that sufficient resources are reserved for meeting its responsibility towards human rights, and it should integrate the principles of due diligence, human rights by design, stakeholder engagement, mitigation of the harms of government-imposed restrictions, transparency, and effective remedies to complement its ‘high level commitment to human rights’.

While this report is not binding [10] on states or companies, it does set out a much-needed detailed blue print of how to address questions of corporate responsibility towards human rights in the digital age.

References

[1] https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/077/46/PDF/G1707746.pdf?OpenElement
[2] http://www.ijrcenter.org/un-special-procedures/
[3] http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/OpinionIndex.aspx
[4] http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf
[5] The author of this blog has written about this issue here: https://www.cfr.org/blog-post/should-technical-actors-play-political-role-internet-age
[6] http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/32/L.20
[7] https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/141/31/PDF/G1714131.pdf?OpenElement
[8] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912308
[9] http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf
[10] http://www.ohchr.org/Documents/Publications/FactSheet27en.pdf