As part of the Just Net Coalition, IT for Change helped develop draft input text on the human rights obligations of digital TNCs, for an international legally binding instrument on Transnational Corporations. This will be submitted to the Open-ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with respect to human rights at its third session, scheduled for October 2017.The draft articles will also be incorporated into the People's Treaty that is currently being drafted by 'The Global Campaign to Dismantle Corporate Power, Stop Impunity and Re-claim Peoples Sovereignty'.
Draft set of articles for:
“An international legally binding instrument on transnational corporations (TNCs) and other business enterprises with respect to human rights”
as pertaining to digital TNCs and other business enterprises
Contribution to preambular text
Digital transnational corporations (TNCs) and other business enterprises (hitherto just “digital TNCs”) provide crucial platforms for free expression and publishing, and for free association. They are also sites of considerable cultural activity, and thus key to maintaining and promoting cultural diversity. Digital TNCs must be accountable with respect to these important human rights.
Data and the digital intelligence derived from it are the key economic resource in contemporary information societies. They are equally important for the building and sustenance/perpetuation of new age social, political and cultural systems. It is vital that the activities and social relationships constructed on the basis of data and digital intelligence respect and promote human rights agreements and standards.
Since data flows and digital applications can be administered remotely, from across the globe, governments are often unable to ensure that global digital TNCs comply with human rights. It is important to ensure through a binding treaty that the practices of digital TNCs are in conformity with human rights standards and compliant with national laws and regulation that seek to protect and promote people’s human rights.
Specific articles
For TNCs
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As platforms for open information publishing and exchange, and free association, digital TNCs and other business enterprises must uphold the right to free expression and association, and not exercise private censorship or control. Their actions in this regard should strictly be as per international and national law, as adhering to human rights norms and principles, and include no “editorial choices”. If any content presentation choices and preferences do get exercised these must follow transparent criteria that are open to public and regulatory scrutiny.
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Digital TNCs must uphold and promote cultural diversity including through proactive steps to include marginalised people's voices, content, languages and cultures. They must comply with international and national norms, standards, regulation and laws in this regard including UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
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Digital TNCs must ensure at least the same level of privacy rights protections to the citizens of countries where a TNC has any presence as provided to the citizens of the home country of the TNC, which should accord with international norms and standards. The government of the home country of a TNC will ensure that such minimum level of privacy protection is available to all users globally, irrespective of their country of citizenship or residence.
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Digital TNCs must make themselves available to the proceedings of national privacy or data protection regulators in all jurisdictions where they have any presence.
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A test of substantial digital presence will be applied, subject to which any TNC must audit its systems for compliance to relevant laws and regulation of the relevant host country. It must report such audit and its outcomes to the relevant digital regulator, if and as exists. Accordingly, it must register its commercial presence in that country, and comply with the necessary regulations.
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In establishing commercial presence in a country, all engagements that contribute to a commercial outcome, whether or not payment is made in a particular transaction, must get considered. This includes provision of services by TNCs in exchange for people's personal or social data for economic gain.
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TNCs will refrain from providing services inside a country in violation of that country's local presence laws and regulation, whether of legal entity, data centres, etc. Such local presence obligation would not apply to purely informational flows, as described under article 19 of UDHR in pursuance of the right to “seek, receive and impart information and ideas through any media and regardless of frontiers”. In this respect, a distinction must be made between free flow of information (which is directly human-consumable), along with digital data carrying it, and cross-border flow of other kinds of digital data.
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Data produced in personal and social interactions inside a country belong to the people of that country, individually and/or collectively, and every digital TNCs that has a substantial presence in a country must provide full account of the nature and amount of data collected by it inside that country, and its uses, to digital regulator(s) of that country, and/or any other appropriate authority/ties.
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TNCs owning various kinds of digital platforms that have substantial presence and market power in any sector, like transportation, accommodation booking, etc, must be subject to national and international regulation for that sector, as appropriate, which seek to protect and promote people’s human rights. They cannot claim to be merely technology providers for a sector and thus escape corresponding sectoral regulation. Appropriate tests for substantial sectoral presence must be established in this regard.
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Subject to the test of relative power in the work relationship, workers across different sectors that get organised or controlled through or over a digital platform, that is found to have substantial presence in a sector, will be considered the employees of the concerned TNCs, or its subsidiaries, as the case may be, and provided all employees related benefits. This include right to form unions, …....
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A lot of data required for regulation today is available only with concerned digital corporations. Digital TNCs must make available all data that is by statute or otherwise legitimately required by regulators and policy makers.
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All critical public information required for legitimate legal and policy making purposes, as provided for in national laws, and as adhering to international norms and standards, that is in possession of a TNC with substantial presence in a country, will be provided free of cost to the concerned authorities. Such information is developed out of data collected from personal and social interactions within that country which should not require to pay for such data and information's critical public uses.
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The concerned corporate entity, the digital TNC, and its officials will be legally responsible for all actions emanating from digital activities under their control, whether or not automated decision making is involved at any stage. This is subject to intermediary responsibility regimes.
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Digital TNCs must specifically ensure that algorithms, including artificial intelligence (AI), do not make “decisions” that contravene national laws, especially with regard to protection and promotion of human rights, including those against various kinds of discrimination. They must record the basis of all relevant automated decision-making, and make records available to regulators, and individuals/ communities that may want any judicial scrutiny in this regard, in fulfilment of their “right to explanation”.
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Subject to the test of substantial presence, digital TNCs must make available all the necessary means whereby they can be subject to consumer redress laws of the local jurisdiction.
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TNCs will observe the general principle of sales related tax going to the jurisdiction where the consumer of a service or good is present, and all other taxes paid as per national laws according to substantial commercial presence and activity. [??]
For states – Extraterritorial, international and national obligations
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States will not, directly or indirectly, employ digital TNCs to conduct or encourage activities in other countries which if conducted by states themselves would be in violation of their obligations under international law, including of upholding human rights all over the world.
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States where TNCs are head-quartered will ensure that legitimate requests, under internationally established rules, protocols and mechanisms, made by a country where a TNC operates with regard to access to data required for legitimate purposes as recognised under international law and norms, are complied with by the concerned TNCs.
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International principles establishing intermediary responsibility regimes – conditions for intermediary non-liability and liability, as and where appropriate, should be developed. These should be recognised by all state parties and helped to be enforced in the country of TNC presence by the State where the relevant TNC is head-quartered.
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States must develop, as per international norms and standards, clear data protection and intermediary responsibility regime – their non liability as well as liability – and institute a digital regulator for cross-cutting digital issues. These laws and their application will be subject to judicial oversight. This will ensure that digital TNCs can operate in an environment of legal and regulatory clarity. Appropriate means of assessing substantial digital presence of foreign companies should be established which could subject them to higher level of regulatory compliance as discussed earlier.
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Sectoral regulator, like in the area of transportation, health, education, etc, should similarly ensure updated regulation that take into account the working of digital platforms, including TNCs, as major players in different sectors.