A/HRC/35/22
Challenge requests and underlying laws
68.
Companies have an interest in operating in a legal environment that is human rights
compliant, consistent due process and rule of law norms. Companies should explore all
legal options for challenging requests that are excessively intrusive — such as requests for
shutdowns of entire services or platforms, website takedowns that are clearly targeted at
criticism or dissent or customer data requests that cover broadly unspecified users. 111
69.
Like any decision to bring legal proceedings, companies may take into account a
range of considerations, such as the “potential beneficial [human rights] impact, the
likelihood of success, the severity of the case, cost, the representativeness of the case and
whether the case is part of a larger trend”.112 However, companies should assign substantial
overall weight to human rights considerations in their decision-making processes and
carefully assess both the potential benefits and risks to human rights. For example,
companies should be inclined to challenge overbroad requests where there is a reasonable
likelihood of success, even if these challenges might be resource intensive; on the other
hand, companies might pursue alternative options if a challenge is likely to create adverse
precedent or backlash and undermine expression and privacy.
5.
Transparency
70.
Transparency is a key feature of the digital access industry’s responsibility to
respect. Information about government activities that require corporate assistance or
involvement should be disclosed to the maximum extent allowed by law. Companies
should be mindful that such information is primarily used by civil society to challenge
human rights abuses in court, register grievances before domestic or international
mechanisms on behalf of users or seek alternative means of accountability. Accordingly,
such disclosures should be regular and ongoing, and in an accessible format that provides
appropriate context.
71.
Even if local law limits full transparency, companies should nonetheless disclose all
relevant and publishable information. For example, if companies are prohibited from
disclosing the origin or basis of a shutdown request, they should nevertheless seek to
provide regular updates about the services affected or restored, the steps they are taking to
address the issue and explanations after the fact. Innovative transparency measures, such as
the publication of aggregate data and the selective withholding of information, 113 also
mitigate the impact of gag orders and other non-disclosure laws. Companies should disclose
all the local laws with which they comply and, where possible, challenge any law or
regulation that prevents or hinders them from being transparent to users and the general
public.114
72.
Companies should disclose their policies and actions that implicate freedom of
expression. Relevant disclosures include data retention and use policies, network
management practices and the sale and purchase of network filtering and interception
technologies.115 Companies should also disclose information about the frequency, scope and
subject matter of due diligence processes and a summary of high-level findings. In general,
companies should consult the growing number of resources that study valuable
transparency indicators and other transparency best practices. Users, civil society and peer
companies should also be consulted on the design and implementation of transparency
measures.
111
112
113
114
115
Yael Ronen, “Big Brother’s little helpers” (February 2015), p. 81.
Global Network Initiative, “Implementation guidelines”.
For example, when “Telia Company was required to suspend services, the company did not state that
this was the result of technical problems”, Telecommunications Industry Dialogue submission, p. 14.
Telecommunications Industry Dialogue, “Information on country legal frameworks pertaining to
freedom of expression and privacy in telecommunications” (2016).
Ranking Digital Rights submission.
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