Whose law and whose rights? US web companies in the global context

Growing numbers of governments are scrambling to reign in the creative chaos of the internet.  Vinton Cerf recently wrote in the New York Times that the internet is at a crossroads as the freedoms that allowed its development are now being curtailed.  While only four countries censored internet content in 2002, this number has now risen to 40.

This puts US web companies in a difficult position.  On the one hand, they do not want to be complicit in attempts to stifle the very freedom that allowed them to prosper.  On the other hand, if they want to expand to new market places and bring some of the benefits of the internet to new audiences, shouldn’t they respect the laws of the jurisdictions in which they operate?  At last week’s Conference on Legal Frontiers in Digital Media at Stanford University, there was much discussion of the need to ‘fly the flag’ for the freedom of expression wherever internet companies were operating.  Ebele Okobi from Yahoo!’s Business and Human Rights Program noted that we are not talking about freedom of expression as one simple law, but instead shades of grey in the way in which it is implemented and interpreted.  However, there was little time to explore this further and the room was left slightly baffled about how we could navigate the complexity of protecting the First Amendment right in a truly global environment.

How helpful is the US approach to freedom of expression for companies operating internationally?  The US approach is uncompromising, allowing very few limits on the freedom of expression.  Is an English law on defamation, a German law against holocaust memorabilia or an Australian law on hate speech so fundamentally inconsistent with the freedom of expression that US companies operating in those jurisdictions are justified in disregarding the local laws?  International human rights law has developed jurisprudence that attempts to bridge the gap between different legal systems to distinguish local interpretations from the universal principles.

The International Covenant on Civil and Political Rights specifies the permissible ways in which freedom of expression may be limited (article 19(3)).  The Human Rights Committee’s recent General Comment 34 on article 19 is one of their most comprehensive general comments and involved extensive consultation with States and civil society.  For the first time, the US Government provided input during the consultation phase.  On the subject of internet communications, General Comment 34 states that  “Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system … are only permissible to the extent that they are compatible with paragraph 3. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3”.  The Comment directly addresses the interaction between freedom of expression and laws on blasphemy, hate speech, defamation and public order.

This could be seen as a truly global view on freedom of expression and provides detail on some of the ‘grey areas’.  However, when States often flout international law, is it reasonable to expect US companies to apply international law?  In 2005, the UN appointed John Ruggie as the Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises to consider these issues.  In 2011, the Human Rights Council unanimously endorsed the Guiding Principles on Business and Human Rights for implementing the UN “Protect, Respect and Remedy” Framework.  The principles acknowledge that the primary duty to protect human rights falls on States, but also notes that businesses have a responsibility to respect internationally recognised human rights – understood, at a minimum, as those expressed in the International Bill of Human Rights (and the codifying instruments such as the International Convention on Civil and Political Rights).  Businesses should have human rights policies and processes in place to ensure that they meet these standards.

The Global Network Initiative attempts to apply this to the specific web context by helping ICT companies to manage the impact that their business may have on the fundamental human rights of privacy and freedom of expression.  GNI has been criticised as failing to reach its potential or to attract significant support from ICT companies with membership failing to expand significantly beyond the founding three: Google; Microsoft; and Yahoo!.  However, Facebook’s recent joining of GNI (albeit only in an ‘observer’ capacity) shortly before its initial public offering may provide some indication of the initiative’s continuing relevance and an acknowledgement that these issues are important to the public and to shareholders.

The GNI and Ruggie’s work seeks to assist companies to identify and proactively manage areas of risk where their business may adversely impact on human rights.  But which risks can be successfully managed?  What sort of strategies can web companies use for risk management?  And is there a point at which a company’s presence in a country does more harm than good and they should withdraw from the market?  These are very real questions that web companies must confront on a daily basis and warrant further exploration.

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