RDR recently submitted comments to a project looking at the role of companies in promoting freedom of expression led by the U.N. Special Rapporteur on Freedom of Opinion and Expression.
The Special Rapporteur’s study aims to identify the main actors in the information and communications technology (ICT) sector that affect freedom of expression, the legal issues at play, and the frameworks for corporate responsibility that exist in this space. RDR’s submission highlights that while companies face many legal and regulatory obstacles to fully disclosing information about their impact on freedom of expression, even companies that operate in restrictive environments can take steps to improve their respect for freedom of expression.
Broadly speaking, three types of company actions can directly restrict or otherwise affect freedom of expression:
- Actions resulting from requests made by governments, or other government requirements;
- Actions resulting from requests made by private parties for legal, commercial, or other reasons, or other private-party requirements;
- Actions taken by companies on their own initiative when setting and enforcing private terms of service, making design and engineering choices, or carrying out commercial and business decisions.
In many countries, law, policy, or regulation can limit companies’ ability to disclose information about these types of actions. For example, “transparency reporting,” or the disclosure of data related to the volume and nature of requests, is becoming a standard practice. Six of the 16 companies ranked in RDR’s Corporate Accountability Index published some type of transparency report related to freedom of expression concerns (A seventh company released its inaugural report of this type shortly after RDR finalized the Index data).
This reporting varies in clarity and granularity, but in some countries, companies are legally barred from disclosure. For example, Chinese laws on state secrets and national security prohibit disclosure of information on government requests to restrict content, and Indian law prevents companies from disclosing information about specific requests (though this does not preclude reporting of aggregate data).
In other cases, ambiguity in the law leaves companies unsure of what they can and cannot publish. For example, the Malaysian Official Secrets Act 1972 may prevent companies from disclosing some information about government requests, although according to local legal experts consulted during RDR’s Index research, it would be unrealistic to conclude that this law affects every restriction request that companies receive.
RDR’s Index and its prior work on the role of Internet intermediaries demonstrates that while legal and policy environments significantly influence ICT companies, such companies can nevertheless take steps toward respecting freedom of expression, regardless of where they operate.
Companies should clearly commit to respect human rights, including freedom of expression. They should consider their effect on freedom of expression as part of their corporate governance mechanisms and conduct due diligence to understand how their business decisions affect freedom of expression. RDR’s Corporate Accountability Index found that while a number of companies take such steps with regard to privacy, similar oversight of freedom of expression is lacking. For example:
- Oversight: Researchers examining the Korean company Kakao—which performed competitively in the Index overall—found clear disclosures of executive and management oversight on privacy issues, but they did not find similar evidence of oversight on freedom of expression.
- Employee training: Of the companies that disclose information about employee training on freedom of expression and/or privacy, Kakao’s public materials only mention privacy-related training. At AT&T (USA) and Vodafone (UK), training programs focused on privacy issues appeared to be more common than trainings covering freedom of expression.
- Whistleblower programs: Twitter (USA), Bharti Airtel (India) and América Móvil (Mexico) maintain employee whistleblower programs that clearly cover privacy issues, but there is no evidence that these companies’ programs also cover freedom of expression.
- Due diligence: Impact assessment and related human rights due diligence processes carried out by Vodafone appeared to be more thorough for privacy than for freedom of expression.
RDR’s full comments are available here.
The Special Rapporteur’s study will be presented to the U.N. Human Rights Council in June. The report as well as submissions from stakeholders will be publicly available on the website of the U.N.’s Office of the High Commissioner for Human Rights.
