A/HRC/35/22
senior or executive-level management; conduct due diligence processes that meaningfully
“identify, prevent, mitigate and account for” actual and potential human rights impacts
throughout the company’s operations; and provide for or cooperate in the remediation of
adverse human rights impacts (see A/HRC/17/31, annex, principles 16-24).
A.
Context considerations
46.
The Guiding Principles emphasize the need for companies to take into account the
particularities of their operating context when executing their human rights responsibilities
(Ibid.). In the digital access industry, several contexts must be considered.
Access providers supply a public good
47.
The digital access industry is in the business of digital expression; its commercial
viability depends on users who seek, receive and impart information and ideas on the
networks it builds and operates. Since privately owned networks are indispensable to the
contemporary exercise of freedom of expression, their operators also assume critical social
and public functions. The industry’s decisions, whether in response to government demands
or rooted in commercial interests, can directly impact freedom of expression and related
human rights in both beneficial and detrimental ways.
Restrictions on Internet access affect freedom of expression globally
48.
The industry’s human rights impacts are frequently global, affecting users even in
markets beyond those served by the company concerned. For example, surveillance of a
single Internet exchange point in the United States may capture large streams of
communications among Americans and foreigners, and even those entirely among
foreigners. Similarly, security vulnerabilities in network design affect all users who rely on
the compromised network for digital access, including users located far away from the
network. Accordingly, companies should identify and address the broader implications of
their activities for freedom of expression generally, in addition to their impacts on
customers or rights holders in the markets they operate. To be sure, the manner in which
they account for their impacts may vary according to their size, resources, ownership,
structure and operating context (Ibid., principle 14). For example, all providers should vet
user data requests for compliance with a minimum set of formalities, regardless of the
origin of the request or the user affected. But while a multinational provider may have
dedicated teams vetting requests, a small or medium-size provider may task its legal or
public policy teams to perform the same function.
The industry is vulnerable to State pressure against freedom of expression…
49.
The Guiding Principles seek to address the gaps in corporate accountability left
because of a lack of national legislation or implementation. 88 However, zealous
enforcement of domestic law also poses human rights challenges in the digital access
industry. For example, States may hold providers liable for, or otherwise pressure them to
restrict, Internet content posted by users on their networks, under laws as varied as hate
speech, defamation, cybercrime and lese-majesty. Yet such intermediary liability creates a
strong incentive to censor: providers may find it safest not to challenge such regulation but
to over-regulate content such that legitimate and lawful expression also ends up restricted.
The pressure to assist in State censorship and surveillance also escalates when authorities
harass, threaten or arrest employees, or attempt to tamper with the company’s networks or
equipment.89
88
89
14
Yael Ronen, “Big Brother’s little helpers: the right to privacy and the responsibility of Internet service
providers”, Utrecht Journal of International and European Law, vol. 31, No. 80 (February 2015), p.
76.
In 2014, a network shutdown request that the multinational telecommunications provider, Orange,
received from the authorities in the Central African Republic was reportedly “accompanied by the
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