The Commitment category of the Index evaluates whether companies demonstrate clear commitment in words and deeds to respect users’ right to freedom of expression and privacy. The indicators draw heavily from the U.N. Guiding Principles on Business and Human Rights, which instruct companies not only to make commitments, but also to carry out due diligence – also known as “impact assessment” – in order to identify, mitigate, and account for any negative effects their business may have on human rights. Companies are also expected to publicly demonstrate that they have put processes in place to implement their human rights commitments and policies effectively. Mechanisms for internal accountability, as well as grievance and remedy processes for users whose rights have been violated, are also important components of the Guiding Principles.
Microsoft, Yahoo, Google, Vodafone, and Orange take the lead (in that order) with Commitment scores between 70-82 percent of total possible points. Facebook, and AT&T fall within 50-65 percent. Kakao and Twitter trail in the 30-40 percent range; MTN, Bharti Airtel and América Móvil lag within the 10-25 percent band; and three companies (Tencent, Etisalat, and Mail.ru) are in the single digits. Axiata earned zero points for this section.
It is notable that the seven companies earning more than 50 percent of total possible points in this section are all members of the Global Network Initiative (GNI), a multi-stakeholder initiative focused on upholding principles of freedom of expression and privacy in relation to government requests or the Telecommunications Industry Dialogue, an industry organization also focused on freedom of expression and privacy. There is a close link between the commitments sought under the Commitment category and the principles that companies commit to as members of the GNI and Industry Dialogue:
Members of the Industry Dialogue sign on to a set of “Guiding Principles” modeled on the U.N. Guiding Principles on Business and Human Rights, but tailored to telecommunications companies. They must report annually on their progress in implementing those principles. Companies that join the GNI commit to uphold a set of freedom of expression and privacy principles when faced with government demands to restrict speech or share user information.
The GNI Implementation Guidelines include due diligence processes as well as transparency and accountability mechanisms. The GNI also requires members to undergo an independent third-party assessment to verify whether they are implementing commitments in a satisfactory manner. The assessment results must then be approved by a multi-stakeholder governing board that includes human rights organizations, responsible investors, and academics, in addition to company representatives.
However, the performance of GNI and Industry Dialogue member companies in this Index is not of uniform quality, as company scores across specific indicators clearly demonstrate. Among telecommunications companies, Vodafone and Orange’s commitments and disclosures were more comprehensive than those of AT&T.
Among Internet companies, Microsoft and Yahoo disclosed and articulated their commitments and practices in a clearer and more comprehensive manner than Google. Facebook’s lower score reflects the fact that it joined GNI in 2013, five years after the other three companies, which were founding members, joined in 2009. At the time of our research, Facebook had not yet completed a full GNI assessment. Also, many of Facebook’s disclosures and commitments do not appear to cover the company’s subsidiary acquired in 2014, WhatsApp.
On the question of grievance and remedy mechanisms, the Index results highlight how performance differs substantially from commitment and ideals. (See relevant Key Findings and Recommendations.) The Global Network Initiative has stated its intention “to implement a standard for freedom of expression and privacy in the ICT sector that is consistent with the U.N.’s Protect, Respect, and Remedy framework.” The Telecommunications Industry Dialogue, in its principles, has identified implementation of grievance mechanisms as an aspiration.
However, unlike other indicators in the Commitment category, membership in the GNI or the Industry Dialogue was not a predictor of performance on indicator C6, which focused on grievance and remedy mechanisms that clearly include complaints related to freedom of expression and privacy. For instance, Bharti Airtel received the highest overall score on this indicator, beating out Vodafone, which also tied with América Móvil. Among Internet companies, Kakao led on remedy, edging out Google and substantially outperforming Microsoft, the Commitment category leader. The fact that few companies provided disclosure that aligned with expectations for business and human rights highlights an important opportunity for dialogue between industry and other stakeholders about what these practices should look like.
Remedy standards: In evaluating companies on their remedy and grievance mechanisms, we looked for companies to provide grievance mechanisms that were accessible and remedy standards that were clear. In other words, we searched for tools that users could easily locate and understand in line with the Remedy section of the U.N. Guiding Principles. Beyond simple access to grievance mechanisms, the Index methodology gave credit to companies for disclosures about internal processes to investigate and resolve complaints, in addition to evidence that the stated mechanisms were implemented and operational. This included:
Clear articulation of the kinds of complaints companies were prepared to respond to, specifically including freedom of expression and privacy issues;
Detail on the process for responding to complaints, such as how the company tracks complaints, which personnel are involved in responding to complaints, what procedures exist to escalate complaints, what timeline the company establishes for addressing complaints, what means the complainant has to follow up with the company, and what mechanisms exist for the complainant to appeal a decision;
Some reporting on the number of complaints the company receives pertaining to freedom of expression and privacy; and
Some evidence and examples of complaints that were resolved. This last point is not meant to establish an expectation that all complaints and their resolutions become part of the public record. However, we expect that companies can provide insight into whether they are receiving and processing complaints and offer examples of issues and challenges that companies have considered and resolved.
In all regards, company disclosures were evaluated with recognition that the privacy and safety of the complainants should be protected.
For telecommunications companies, many of the complaint avenues were embedded in terms of service or privacy policies. Internet companies tended to scatter the mechanisms across various web pages tied to specific functions of specific services. In many cases, locating the mechanisms and confirming whether they were relevant to our investigation represented a more complex journey than seemed reasonable for the average user. Much of the disclosure suggests that, even in spite of principled commitments, companies have not conceptualized how to incorporate grievance and remedy into their established communication mechanisms.
Regulation and remedy: While companies should voluntarily strive to implement policies that meet the standards of this indicator, regardless of regulatory requirements, evidence suggests that the strength of remedy practices to date is driven by the regulatory environment in companies’ home countries. As previously mentioned, Bharti Airtel and Kakao displayed generally stronger performance on the assessment of grievance and remedy than other companies in the Index. Regulation appears to play a positive role: both India and South Korea have laws that require grievance and remedy mechanisms. (See the company reports in Section 5 for more detail.)
Bharti Airtel, the leader on this indicator across the entire Index, showed an alignment with Indian regulatory requirements that require grievance and remedy mechanisms for information technology and telecommunications companies. Of note, the requirements establish an expectation that companies implement a complaint monitoring system that enables the user to track the status of their case.
In the case of Kakao, South Korean laws require implementation of grievance and remedy mechanisms that cover privacy and copyright. Our assessment determined that Kakao’s performance largely aligned with regulatory expectations. Notably, Kakao has added an appeals mechanism for users who are accused of copyright infringement, which helps address concerns that processes for enforcing copyright can be used in a way that limits free expression.
While both of these companies can find considerable room to stretch toward the ideals that underpin the Index’s methodology, their performance here provides a valuable example of how the regulatory context can support digital rights. There is further potential for stakeholders to work with regulators to close the gaps.
