By Richard Hill, Parminder Jeet Singh
Not only that transnational companies (TNCs) in the digital sector are present in practically all social systems, including those occupying the highest echelons of power, and in the organization of the personal lives of individuals, but their form is to often more monopolistic and more global than in the case of other sectors.
This creates a dangerous situation where, as digital TNCs begin to control important aspects of our social and economic lives, they become increasingly difficult to control through political regimes based on nation states. They have the ability to carry out their operations remotely and move smoothly their headquarters and their bases of operations, as evidenced by the unprecedented level of tax evasion by these companies.
We therefore need, first, a new set of global policy principles to guide the work of digital TNCs, within which national regimes can harmonize and work effectively cooperatively. And secondly, in a complementary way, we need a new global instrument capable of restricting human rights abuses, as described in the global principles already outlined, but applied to the context of digital TNCs.
Next, we briefly describe the digital context of human rights in relation to digital TNCs, referring to some of the points1 offered for consideration by the Global Campaign to vindicate the Sovereignty of Peoples, Dismantle the Power of Transnational Corporations and End Impunity.
1. Approach and scope of the Treaty on TNCs and other companies in relation to human rights.
It is not in question whether the laws apply both offline and online. Therefore, there should be no doubt that all companies must respect human rights, both online and offline. And this also applies to transnational companies active in information and communication technologies - ICTs - in general, and on the Internet in particular.
However, many transnational Internet companies seem to act as if they are subject only to the laws of the country in which they are incorporated or, worse still, as if the current national laws do not apply to them. Consider, for example, Uber and AirBnB, whose business models are based on the premise that, respectively, labor and taxi laws and hotel laws do not apply to them. By denying the application of national laws, these companies try to avoid compliance with certain human rights, in particular labor rights.
A future treaty on TNCs must be clear and fully applicable to companies operating in the online world and must preserve the democratic right of peoples to make public policy decisions. Since digital TNCs can operate from any State and move easily from one State to another, such a treaty must recognize that they are global entities, that they must be subject to global rules, which requires a mechanism to enforce these global standards.
2. Extraterritorial obligations of governments in relation to TNCs and human rights
Many of the most popular ICT products and services are provided by TNCs, particularly in the case of the Internet, which is dominated by a few companies. Governments should have an obligation to ensure that TNCs with headquarters or operations in their territory respect human rights globally.
These rights include the right to privacy. However, that particular right is regularly violated, by forcing users to renounce their rights by accepting, with a simple click, adhesion contracts, if they wish to use the so-called 'free' services offered by the dominant Internet companies. .
The services in question are not free at all: they are paid for with the data that users provide. This data is valuable and is monetized by Internet companies, mainly in the form of targeted advertising.2
Although States have a duty to protect human rights, what we see in practice with respect to digital transnationals is that they are capable of co-opting the State where they have their headquarters (in particular the United States), to the point that the State no longer fulfills its duty. The TPP, TPIP, and TISA negotiations are one example: the United States (and other states) push for trade agreements that would reduce the ability of other states to protect privacy and other citizen rights.
3. A compliance instrument in relation to the application of the Treaty
The creation of an International Tribunal on Transnational Corporations and Human Rights has been proposed, which would function as a complement to national, regional and universal mechanisms and would guarantee access to an independent judicial forum so that affected individuals and communities obtain justice for violations of their civil, political, social, economic, cultural and environmental rights.
Such a Tribunal is particularly necessary in the field of ICT, including the Internet, due to the global nature of the field and the difficulties in forcing dominant TNCs to comply with national laws.
Furthermore, special treaties are needed for specific ICT and Internet issues, for example concerning domain names and Internet addresses, privacy, surveillance, encryption, use of personal data, use of algorithms, etc., because the National laws do not treat them adequately. In particular, there are great divergences between jurisdictions, but ICT in general, and the Internet in particular, are global phenomena that must be governed globally. The situation with regard to domain names and Internet addresses is particularly clear, given that a US entity, ICANN, subject to US law, now has full control over them, at least nominally.
In the absence of specific treaties and an International Court, in practice it is the dominant private companies that create and enforce their own laws, through adhesion contracts imposed on their users.
4. Democratic governance
As already noted, much of the ICT field is dominated by a few TNCs. It is important to reclaim the sovereign right of States to regulate these companies, in particular to protect human rights and place democracy above corporate power.
Praise for what is called a "multi-stakeholder" model of governance has become fashionable, particularly in the Internet arena. While there is consensus that it is important to consult all stakeholders to make decisions, some of the proponents of that model claim that all stakeholders should have equal decision-making rights. This implies giving veto power to private companies, preventing governments from implementing public policies that are of interest to all citizens.
It is not disputed that democracy is a fundamental human right. Therefore, the Treaty on TNCs should ensure that democratic mechanisms3 are used to make public policy decisions in relation to ICT in general, and the Internet in particular. All people must be able to influence decisions that affect their use of ICT and the Internet, and have the right to affordable and non-discriminatory access, free from censorship and surveillance.
In particular, the treaty must address an issue that arises in practice: when a citizen of a country questions some aspect of their relationship with a digital TNC, the company often responds that the relationship is not subject to the country's law or jurisdiction. but rather to the law and jurisdiction of the TNC's home country, often the US This makes it very difficult for citizens to protect their rights.
For example, what effective recourse does a citizen have when his US-based cloud service provider unilaterally changes its terms and conditions, or closes his business losing all citizen data?
5. Rights of affected persons
As the Just Net Coalition4 has stated:
“The Internet has become a vitally important social infrastructure that has a profound impact on our societies. We are all citizens of a world mediated by the Internet, whether we are the minority that uses it or the majority that does not. In our world, the Internet must contribute to the advancement of human rights and social justice. Internet governance must be truly democratic. (…)
“The opportunities for majorities to participate in the real benefits of the Internet and fully realize its enormous potential are frustrated due to the growing control of the Internet by those who have power: large corporations and some national governments. They use their central positions of influence to consolidate power and establish a new global regime of control and exploitation; and under the pretext of favoring liberalization, in reality they reinforce the dominance and profitability of large companies to the detriment of the public interest, and impose the predominant position of certain national interests to the detriment of global interests and welfare.
“The existing order of global governance of the Internet is inadequate. It lacks democracy; it is characterized by the absence of legitimacy, accountability and transparency; by an excessive influence of the corporations that translates into subordinating the regulatory bodies; and it gives very few opportunities for the effective participation of people, especially from developing countries. This situation can only be remedied through fundamental changes in current governance mechanisms ”.
A treaty on TNCs regarding human rights will be an important step towards the fundamental changes we require.
- Richard Hill is President of the Association for Proper Internet Governance.
- Parminder Jeet Singh is a member of IT for Change, India.
They are both members of the Just Net Coalition.