A/HRC/32/38
results might require the search engine to reinstate such links. It is, however, unclear how
complaint or appeals mechanisms should be designed and implemented to ensure that such
removals are effectively flagged, evaluated and remedied. A search engine’s highly
dispersed customer base further complicates design issues. It is also unclear whether
companies should provide additional remedies, like financial compensation for lost revenue
during the period of removal, or guarantees of non-repetition.
69.
To enforce terms of service, companies may not always have sufficient processes to
appeal content removal or account deactivation decisions where a user believes the action
was in error or the result of abusive flagging campaigns. Further research that examines
best practices in how companies communicate terms of service enforcement decisions and
how they implement appeals mechanisms may be useful.
70.
The scope of the corporation’s responsibility to remediate is also contested. Who
bears the burden of remediating improper removals or data requests when companies
interpret or enforce relevant State laws too strictly? When a company’s products or services
are used to perpetrate human rights abuses, what degree of causation triggers the duty to
provide a remedy? When companies face allegations of wrongdoing, is there a duty to
conduct internal investigations, and must these investigations meet certain standards?
Where a restriction implicates individuals across borders, what jurisdiction is appropriate
for the consideration of remedies? These questions reflect the uncertainty that human rights
victims face in situations where corporate and State conduct are intertwined.
71.
The appropriate role of the State in supplementing or regulating corporate remedial
mechanisms also requires closer analysis. Civil proceedings and other judicial redress are
often available to consumers adversely affected by corporate action, but these are often
cumbersome and expensive. Meaningful alternatives may include complaint and grievance
mechanisms established and run by consumer protection bodies and industry regulators.
Several States also mandate internal remedial or grievance mechanisms: India, for example,
requires corporations that possess, deal with or handle sensitive personal data to designate
grievance officers to address “any discrepancies and grievances […] with respect to
processing of information”.53
V. Further thematic development
72.
Given the range of private information and communications technology activity that
frames and impacts the exercise of the freedom of opinion and expression online, the
Special Rapporteur will focus on State obligations and business responsibilities in specific
areas of concern. The legal and policy issues raised above will guide thematic reporting,
communications with Governments, country and company visits, regional and expert
consultations, and other work.
73.
Among the Special Rapporteur’s priorities for thematic study and guidance are the
following:
Restrictions on the provision of telecommunications and Internet services
74.
Governments increasingly require private entities providing telecommunications and
Internet service to comply with censorship demands. In addition to network filtering
practices, States compel or pressure companies to shut down networks or block entire
services. This trend requires further documentation and scrutiny. Future work will examine
53
India, Information Technology Act, 2008, sect. 43 A; Information Technology (Reasonable security
practices and procedures and sensitive personal data or information) Rules, 2011, rule 5 (9).
19
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