Event Report: “The State of Digital Rights Due Diligence,” the 2019 GNI Annual Learning Forum

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December 9, 2019  |  Events, Learning, News

As the practice of human rights due diligence (HRDD) takes root in the technology sector, how can companies keep pace with new risks to freedom of expression and privacy?

On October 24, the Global Network Initiative (GNI) brought together its members to take stock of the past, present, and future of HRDD for the 2019 GNI Annual Learning Forum at the Human Rights Campaign Equality Center in Washington, D.C. Prominent digital rights experts reflected on lessons learned from the first decade of HRDD in the technology sector and shared insights on how companies can work with other actors to make sure their risk management processes anticipate and respond to diverse and constantly changing pressures on digital rights.

GNI and Human Rights Due Diligence in the ICT Sector

GNI Board Independent Chair Mark Stephens opened the forum, welcoming a packed house and online participants from around the world. Stephens introduced GNI and the concept of HRDD as part of the corporate responsibility to respect human rights outlined in the UN Guiding Principles on Business and Human Rights (UNGPs). The GNI Principles on Freedom of Expression and Privacy (GNI Principles) and accompanying Implementation Guidelines provide further guidance on HRDD as applied to freedom of expression and privacy rights in the ICT sector.

Panel one participants (from left): Michael Samway, Carolina Botero, Nicole Karlebach, Laura Okkonen, and Bennett Freeman

Panel One: A Ten-Year Retrospective: How Have ICT Companies Engaged in Human Rights Due Diligence and What Role Have Other Stakeholders Played?

  • Michael Samway, Adjunct Professor, Georgetown University
  • Carolina Botero, CEO, Fundación Karisma
  • Nicole Karlebach, Global Head, Business and Human Rights, Verizon/ Verizon Media
  • Laura Okkonen, Senior Manager, Human Rights, Vodafone Group
  • Bennett Freeman, Co-founder and Board Secretary, GNI; Principal, Bennett Freeman Associates LLC (Moderator)

Bennett Freeman opened the discussion with a brief history of corporate HRDD and human rights impact assessments (HRIAs). He traced the evolution of these processes, beginning with extractives, and moving into other industries coming under scrutiny for potential impacts on human rights. He described how the conversations in 2006–08 that created GNI occurred in parallel with the process led by UN Special Representative for Business and Human Rights John Ruggie to clarify responsibilities of states and companies with regard to human rights. He characterized the GNI Principles as the first standard—and the accompanying GNI Implementation Guidelines as the first template—for HRDD focused on digital rights.

Michael Samway, a former deputy general counsel at Yahoo and a founding GNI Board member, then walked the audience through the first-ever HRIA for the ICT sector, which focused on Yahoo’s services in Vietnam. With no playbook to work from, Yahoo undertook an iterative process, engaging with human rights defenders and affected persons, the governments of the United States and Vietnam, and the group of “giants in the field” who were negotiating the GNI Principles at the time. After extensive consultation and consideration, Yahoo implemented a tailored approach to their Vietnamese-language services to minimize the threat of censorship and maximize privacy protections and employee safety.

The Business and Human Rights Program (BHRP) at Verizon is the structure that embodies Yahoo’s early experiences, and is now led by Nicole Karlebach, a current GNI Board member. Karlebach spoke on the BHRP’s work to embed HRDD into broader company practices, including by establishing partnerships with personnel in key executive functions. As the company grows, the BHRP works to balance principles rooted in the foundations of human rights, local laws, business considerations, and shifting forms of government and external pressure.

Laura Okkonen, a current GNI Board member, then shared her insights from working with human rights teams at two major ICT companies — formerly with Nokia, an equipment vendor, and now with Vodafone Group, a telecommunications provider, which serves nearly 650 million customers in over 25 countries. Sector-wide collaboration — first through the Telecommunications Industry Dialogue, and later through GNI membership — has enhanced individual companies’ work to measure and mitigate rights risks and promote positive impacts. Furthermore, this collaboration helped establish transparency reporting as an industry-wide best practice.

Carolina Botero demonstrated firsthand how stakeholder engagement is integral to effective HRDD. Working in Colombia, Botero and the Karisma team localized the methodology from the Who Has Your Back project, ranking Internet service providers in Colombia annually on their digital rights commitments and related transparency. Initially facing a very adversarial relationship, this research and outreach to prominent international companies has helped build longer-term channels for engagement and fostered intercompany competition, setting better precedents for incorporating digital rights perspectives in regional policy making.

During the Q&A segment, the panelists and the audience discussed different approaches to HRDD, from integrating these processes within sustainability, compliance, and other functions, to the creation of dedicated human rights teams. And while transparency is critical, it is also necessary to balance transparency considerations with maximizing impact and corporate accountability. Multistakeholder spaces like GNI and research and advocacy like Karisma’s remain critical for crafting good practices and improving HRDD over time.

Panel two participants (from left): Théo Jaekel, Dunstan Allison-Hope, Nathalie Maréchal, ‘Gbenga Sesan, Chinmayi Arun, and David Sullivan

Panel 2: “Looking Ahead: In the Face of Emerging Technologies and Increasing Government Pressures, Where Does the Industry Go from Here?”

  • Théo Jaekel, Legal Counsel and Business and Human Rights Expert, Ericsson
  • Dunstan Allison-Hope, Managing Director, BSR
  • Nathalie Maréchal, Senior Research Analyst, Ranking Digital Rights
  • ‘Gbenga Sesan, Executive Director, Paradigm Initiative
  • Chinmayi Arun, Fellow, Yale Law School
  • David Sullivan, Director of Learning and Development, GNI (Moderator)

Nathalie Maréchal opened with updates to the Ranking Digital Rights project (RDR) methodology in response to emerging digital rights risks; the project will now measure publicly available policies and practices on targeted advertising and algorithmic decision making.

Moving to the global picture, Chinmayi Arun honed in on her work on hate speech in Asia. As companies pursue an analytical framework effectively respond to problematic content while maximizing human rights, she emphasized that context and nuance is hyperlocal; not all actors on the ground will have the same understanding, including on the legality of certain speech. Arun later acknowledged that scaling effective responses is challenging but called for companies’ regional staff to better consult with and listen to diverse voices as they balance engagement with both civil society and governments.

‘Gbenga Sesan continued by citing examples in Africa where governments’ actions simultaneously represent risks for business and freedom of expression. These include Uganda’s social media tax and the abuse of cybercrime laws in Nigeria. As governments adopt similar playbooks, it is essential for companies to “go beyond the minimum” of meeting local law requirements and endeavor to apply the same standard in both rights-respecting and non-respecting markets.

On company practices, Théo Jaekel presented Ericsson’s increasing recognition of the potential abuses of their products up and down the supply chain. The company has established a sensitive business process that is incorporated in all major sales, assessing country risk, product risk, and process risks, including customers’ practices. Acknowledging challenges of scale, Jaekel emphasized the need to anticipate worst-case scenarios and engage with civil society.

Dunstan Allison-Hope shared insights from the 30–35 HRIAs he has undertaken. In the ICT sector, HRIAs have focused extensively on particular products, services, and operations, but it is equally important to examine companies’ general human rights processes. Furthermore, while public scrutiny has honed in on the practices of a small number of companies, system-wide and sector-wide approaches are essential. HRIAs in the ICT sector, as compared to other sectors, are uniquely challenging due to the need to anticipate a wide range of future scenarios as technology rapidly changes.

Themes explored during the Q&A segment included the challenges posed by speech that incites violence, considerations around growing Internet penetration and the adoption of 5G in particular, and the need for non-ICT companies to also undertake HRDD, recognizing that other industries’ use of technology can raise human rights concerns.

Lessons Learned and Looking Ahead

GNI Policy Director Jason Pielemeier closed the event by mapping some of the day’s takeaways to the four steps of HRDD outlined in the UNGPS and GNI Implementation Guidelines. When:

  • identifying risks, it is critical to incorporate diverse, local perspectives, and consider not just immediate risks but also potential worst-case scenarios.
  • integrating findings, we need to build an “infrastructure of responsible company decision making” that cuts across different corporate functions and processes and work toward “cultures of change.”
  • tracking effectiveness, it is essential to engage and coordinate across the company, and companies should strive to
  • communicate results publicly — e.g., Facebook’s recent publication of a full HRIA on Myanmar — while acknowledging that the most effective form of transparency will depend in part on the circumstances.

With this guidance in mind, it is still key to acknowledge that these processes can’t be mechanistic, and they reflect the humbleness and spirit of going “beyond the minimum” articulated by Sesan. The “power in numbers” mentioned by Okkonen is critical, both through sector-wide collaboration, and multistakeholder spaces like GNI. While GNI’s assessment process offers a form of corporate accountability and feeds directly into GNI’s policy and learning work, GNI’s framework is intended to guide not just members, but the entire ICT sector. GNI hopes this year’s forum was the first of many new opportunities for collaboration on HRDD in the ICT sector and looks forward to fostering more.

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