Now published online and open for comment are "Contributions for the Democratic Regulation of Big Platforms to Ensure Freedom of Expression Online," a potentially powerful document developed by a coalition of Latin American non-governmental organizations. Here is the abstract:
This document offers recommendations on specific principles, standards and measures designed to establish forms of public co-regulation and public regulation that limit the power of major Internet platforms (such as social networks and search engines).
The purpose of this effort is to protect users' freedom of expression and guarantee a free and open Internet. Such intermediaries increasingly intervene in online content, through the adoption of terms of service and the application of business moderation policies. Such forms of private regulation affect public spaces which are vital for democratic deliberation and the exercise of fundamental rights.
The proposal seeks to align with international human rights standards and takes into account existing asymmetries related to large internet platforms without limiting innovation, competition or start-up development by small businesses or community, educational or nonprofit initiatives.
The proposal seeks to create a self-regulatory framework that will avert public regulation of the internet. Needless to say, that will involve the voluntary collaboration of the major players, Facebook, Google, Twitter, et al. From what I saw of their recent participation in RightsCon in Tunisia, they are game.
I'm all for seeing where the self-regulatory approach takes us, but I worry about two problems. First, I'm not sure how long the big players will be willing to spend money on social responsibility while unscrupulous competitors bypass self-regulation and continue to reach audience across the technologically egalitarian internet. Second, as Facebook talks about setting up its own judicial system, I worry about whether we're creating corporate nation-states that will censor anti-majoritarian expression, e.g., perceived "hate speech," with the blessing of NGOs that purport to uphold human rights. But one step at a time....
The Freedom of Information Act of 1966 (FOIA) was a landmark
global example of transparency, or access to information (ATI), to ensure
democratically accountable governance.Government had grown in the twentieth century, especially in the new
administrative state, and FOIA re-balanced the distribution of power between
people and public authority.Today in
the twenty-first century, much power in American society has migrated from the
public sector to the private sector, specifically into the hands of
corporations.Even insofar as it works
well, FOIA operates only against the conventional state by enabling an
individual’s capacity to realize civil and political rights.FOIA simply was not designed to enable the
attainment of human necessities such as education and housing, much less
environmental protection and healthcare, especially when the greatest threat to
those rights is not government deprivation, but the commercial marketplace.
ATI in Africa is a different story.Three decades after FOIA, planted among the
unprecedented ambitions of the South African constitution was a right to
ATI.And within that right lay an
extraordinary new provision.As guaranteed
by the South African constitution and enabling law, a person may request
records from a nongovernmental respondent, a private body, if the person can
show that the records are “required for the exercise or protection of any
rights.”In other words, South African
ATI law jettisoned the historic barrier between public and private
sectors.South African lawmakers were
informed by the experience of apartheid, in which the private sector’s
complicity had been a vital and brutal partner in state-sanctioned human rights
abuse.
Blossoming beyond even the visioning of an apartheid remedy,
ATI in the private sector has been construed by the courts in a wide range of
applications, from intrafamilial business disputes to environmental
conservation.South African courts have
struggled to define “required” and “rights” in applying the ATI law.But South Africa has demonstrated that ATI in
the private sector can work.The
public-private division justifies a change in the terms of access, but not an
absolute barrier.In the last five
years, the South African approach has been reiterated in the domestic law of at
least five other African countries and in pan-African human rights instruments
meant to inspire more domestic adoptions.
In this article, I suggest that the African example inspire U.S.
FOIA reform.In its time, FOIA shone a
light into the darkest corners of American politics.Now America deserves a new approach to
restore power to the people in the age of the corporation.
In 2012, fire ravaged a textile factory in western Karachi, killing 260 and injuring 32. The fire occurred only hours after a shoe factory fire in Lahore killed scores, and two months before the Dhaka fire in Bangladesh killed more than 100 and injured 200. The Karachi fire is now the subject of civil litigation in Germany, taking advantage of a federal law that does what human rights advocates would like to see happen—but probably won't—under the U.S. alien tort statute, 28 U.S.C. § 1350.
These recurring factory tragedies have short half-lives in western media, owing to time-honored if callously objective journalistic measures of relevance (e.g., Jacoba Urist in The Atlantic). But the connection between these deaths and our daily lives in the west runs much deeper. These deaths represent just one adverse consequence of fast fashion, the global commercial trend that gives us retail clothing at an affordable cost that dramatically undervalues human and environmental externalities. My friend and colleague Nick Anguelov (Twitter) speaks powerfully on this subject and wrote about it in his 2015 book, The Dirty Side of the Garment Industry (CRC Press, Amazon) (see also Nick at UIA, on this blog).
Claudia Müller-Hoff and Carolijn Terwindt, advocates with the European Center for Constitutional and Human Rights, recently highlighted the German case for the Oxford Human Rights Hub and Law of Nations blogs. As they explain, a decision is now anticipated on claims in Dortmund by four plaintiffs against KiK, a clothing retailer that was the principal customer of the Karachi factory. Forensic architects in the U.K., Goldsmiths at the University of London, produced an unsettling and damning video that aided the plaintiff's case, published online two months ago.
A meaningful "win" for plaintiffs came once already in the court's preliminary ruling to admit the case under a German federal law, adopted in December 2016, the "National Action Plan on Business and Human Rights." The law represented implementation in the EU of the U.N. Guiding Principles on Business and Human Rights, which are, in turn, an instrument of the corporate social responsibility movement and under the umbrella of the U.N. Sustainable Development Goals.
The German law, as reported by Müller-Hoff and Terwindt, states: “Anyone who considers that his or her rights have been infringed in
Germany by the actions of an enterprise can make claims before the civil courts.” The law is heralded as an important advancement for human rights protection in the vein of universal jurisdiction, though it reasonably does require a jurisdictional connection to Germany.
The KiK case has a parallel in the U.S. alien tort case currently pending in the U.S. Supreme Court, Jesner v. Arab Bank (SCOTUSblog). Jesner was heard in oral argument in October; see this excellent analysis by Amy Howe. The dispute in Jesner focuses principally on whether the alien tort statute applies to corporations. Meant to give U.S. courts jurisdiction over violations of international law, probably to protect commerce, the statute dates to the Judiciary Act of 1789, when corporations and international law were both very different from what they are today.
The U.S. Supreme Court has evidenced reluctance to construe the statute as broadly as its text might suggest in contemporary terms. Previous case law established that the statute cannot reach a "foreign cubed" case—foreign plaintiff, foreign defendant, and foreign soil—but myriad questions remain. Since the 1980s, human rights advocates have championed the alien tort statute as an appropriate mechanism to protect human rights abroad. The WNYC podcast More Perfect did an outstanding episode in October on the history of the statute: Enemy of Mankind. (Amy Howe also wrote a good summary here.) For the skeptical view of Jesner's and the statute's viability in this vein, see an excellent op-ed by Professor Samuel Estreicher in the New York Law Journal in January.
There has been some speculation that the Court might duck the corporate liability question in Jesner by ruling instead that the case is foreign cubed. And there lies the interesting parallel to KiK. The plaintiffs in Jesner seek to hold Amman-based Arab Bank liable for financing terrorism in Israel and Palestine. To satisfy the "touch and concern"-the-United-States jurisdictional test, plaintiffs-petitioners rest their case on a rather thin reed: that a U.S. office of the bank had a hand in laundering funds for Hamas. In Germany, the only link to German jurisdiction is KiK's role as principal buyer from the Pakistani factory. It's hard to imagine such a connection supporting liability in conventional tort analysis in American law; think of Apple's more-moral-than-legal responsibility for working conditions at Chinese Foxconn.
The German law certainly steps out in liability exposure in a way that American law does not permit. If the alien tort statute is not an appropriate vehicle to effect human rights accountability in the American private sector, and subsequent legislation is not forthcoming, the United States will be increasingly divergent from the EU in relying on market forces alone to ensure corporate social responsibility. And as Shankar Vedantam of The Hidden Brain reported on NPR, the free market might not cut it.
[UPDATE: On April 24, 2018, the U.S. Supreme Court held, in Jesner v. Arab Bank, 5-4, that foreign corporations may not be held liable under the U.S. Alien Tort Statute.]
