Law & Technology

By Mario Tavares Moyron

October 30, 2020

Taras Skytskyi

There are few speeches so embedded in the political and economic life of nations, but at the same time so abstract and elusive, as the one on human rights. The general assumption –confirmed by recent human history- is that states bear the responsibility of fulfilling the expectations from the international charters and treaties that create such fundamental rights. 

But nations do not always equally meet the standards defined by these international instruments. While a country’s constitution might as well foresee the existence of the right to privacy and freedom of speech, the means that the government has in place for protecting and ensuring that such prerogatives are effective may not necessarily be compatible with the wishes of their citizens. 

In this respect, one fundamental issue relates to the enforcement of rights and the existence of authorities that guarantee the defense of people’s needs. This will largely depend on the economic conditions of the country where the enforcement of these rights is sought and thus carries, in turn, the question of what are each country’s priorities in the long agenda of social needs.

Human Rights, Cyberspace and Tech Companies 

To add an additional layer of complexity: how should rights be enforced in the digital world? What happens to the obligations of governments, but also companies in relation to how freedom of speech or access to information is to be exercised in cyberspace?

Information and Communication Technologies were considered human rights just recently. There is still currently much debate on whether the Internet is indeed a fundamental right or only a means to enable some other entitlements. As we grow deeper into the use of technologies within our daily lives, the obligations towards citizens and Internet users shall not only be undertaken by governments, but also by companies running the digital business.

Large companies with transnational operations have almost by default, a complex structure of internal policies and regulations on how to treat their employees, their clients, as well as the respective rights of each of these two groups. Such guidelines may be based either on local regulations that are applicable in the given country where the business is run or in accordance to internationally accepted conventions and standards.

In such regard, big technology companies are no exception. Therefore, it came as a surprise that, only a few days ago, Apple published for the first time its human rights policy. Apple’s commitment, based on the Guiding Principles for Business on Human Rights, outlines precisely its responsibility towards customers and users, but also the expectable obligations in relation to employees and business partners throughout the supply chain.

The publishing of this policy was already delayed in contrast with other technology tycoons such as Facebook, Google, Amazon and Microsoft, whose commitments were already public, especially –for some of them- in the context of privacy, antitrust investigations and tax-related prosecutions.

Apple had its own issues related to compliance with the rule of law just on the eve of the policy’s publication, but the record of transgressions goes far back in time. Foxconn, Apple’s biggest manufacturing contractor for iPhones was already subject to public outrage due to health incidents of its employees’ -in some cases even suicide allegations- started 10 years ago. More recently, Apple’s wrongdoings were related to suppress freedom of speech and silence protest of citizens in Hong Kong.

We tend to assume that companies –and in particular big techs- abide by human rights principles as much as governments do, and that they train their employees to behave and perform their tasks in full compliance with the applicable regulations in a specific territory. The premise is basic: as companies enjoy certain rights –under the figure of corporate personhood-, they must assume their responsibility in fulfilling prerogatives of people with whom they interact.

Latest Regulatory Challenges for Tech Tycoons

Big Techs are under constant attacks because of complaints regarding violations of privacy and the right to protect the personal data of their users. This is due mainly to the indiscriminate use of data and its massive combination as a business generator but also to the recent entry into force of the General Data Protection Regulation (GDPR) in Europe.

Antitrust regulation is another big tech’s constant headache. The most recent cases have involved the use of data as an input for monopolies to displace their competitors or to impose abusive terms in their relationship with users.

All the big techs have sophisticated and publicly available policies on how they cover all the different subjects that are protected by local regulators. There are ambitious compliance programs that are currently put in place, as companies are well aware that money doesn't come from the protection of human rights, but profits can be increased by the respect of internationally acknowledged fundamental standards. 

But the problem is that companies will not tackle social issues –insofar as they are responsible- by publishing new policies. The principles and commitments reflected in their policies must be consistent with their ability to meet those responsibilities before their employees, business partners, and consumers.

On the other hand, local governments are expected to guarantee that their regulators and the authorities protecting rights –e.g. to privacy, free competition, consumer protection, access to information and freedom of speech- have sufficient tools and are empowered to investigate and punish those who do not comply with their human rights obligations.

However, local authorities may disagree as to the extent of this compliance within international standards. And as Apple’s Human Rights Policy states: “where national law and international human rights standards differ, we follow the higher standard. Where they are in conflict, we respect national law while seeking to respect the principles of internationally recognized human rights”.

This is a good place to start as the challenges for rights in the digital world are just beginning. What is left for companies –and for consumers to demand- is to bring these policies to action.