This page presents an introduction to and analysis of the dilemma. It does so through the integration of real-world scenarios and case studies, examination of emerging economy contexts and exploration of the specific business risks posed by the dilemma. It also suggests a range of actions that responsible companies can take in order to manage and mitigate those risks.
“How do media, information and communications technology and Internet companies respect the right to freedom of opinion, speech and expression when operating in, sourcing from, or selling to environments with restrictions on these rights?”
In recent years, companies - particularly those operating in the Internet, media and information and communications technology (ICT) sectors - are increasingly turning to high-growth emerging markets such as China in order to increase their competitiveness and market share. While it is clear that expanding operations into emerging markets can be a boon for business prospects, there are often many categories of risk that need to be assessed and weighed in strategy discussions
Freedom of speech and expression is not absolute. General Comment 10 of the Human Rights Committee reiterates that the right to freedom of expression carries with it special duties and responsibilities, and hence can be subject to a narrow set of restrictions1 adopted in order to maintain the respect of rights or reputations of others. As a consequence, the freedom of expression may be derogated. In terms of this specific dilemma, for instance, some companies are facing growing pressure from restrictive and repressive governments to limit freedom of expression in ways that might damage profitability.2
In such environments, it is challenging to navigate the nebulous boundary between legitimate and illegitimate restrictions on freedom of opinion, speech and expression.3 Some governments, for example, have historically used the rationale of ‘national security’ in order to stifle political opposition, activism and other forms of criticism. In recent years, this argument has been framed as a counter-terrorism issue and may emanate from some justified security concerns.
Even though the state has the primary responsibility to protect its population’s right to the freedom of expression, it is incumbent on members of the private sector to respect the national standards in this sphere. When operating in any jurisdiction, a company must respect national law and could, however, be under great pressure to obey government directives regardless of company policy or commitment to freedoms.
This dilemma occurs when companies are operating in challenging and repressive environments, often typified by national laws that conflict with international standards on the freedom of expression. If a government is compelling a company to illegitimately restrict its content, broadcasts or communications, or to divulge information on activists, then this potentially leaves the company with two choices:
The challenge revolves around defining clear policies, guidelines and company approaches that ensure the responsible and practical navigation of the complicated issue of freedom of expression in ways that protect the rights of employees, the local population and end users but do not unduly compromise corporate viability.
In January 2010, Google announced on its Official Google Blog4 that it was considering shutting down its operations in China. The announcement followed an organised and sophisticated computer network attack originating in China that targeted the company’s e-mail service and corporate infrastructure. The primary goal of the attack was to access the Gmail accounts of Chinese human rights activists in a move designed, according to Google, to “limit free speech on the Web.” Google also said that at least 20 large companies, including finance, media and chemical firms, have been the targets of similar attacks in China.
In March 2010, Google shut down5 its search service on the Chinese mainland, setting up its headquarters in Hong Kong. This case study highlights the strategic risks that a company may face when balancing commercial and business imperatives (China is one of the world’s most promising internet markets) for operating in an environment characterised by political, cultural, religious and ethnic repression with the consequent freedom of expression challenges.
Speaking at the January 2010 World Economic Forum in Davos, Evan Williams, the Chief Executive and Co-Founder of Internet microblog network Twitter, acknowledged in the Financial Times6 that Twitter is subject to censorship from repressive governments. Evans said: “We are partially blocked in China and other places and we were in Iran as well. The most productive way to fight that is not by trying to engage China and other governments whose very being is against what we are about. I am hopeful there are technological ways around these barriers.”
This case study highlights the inherent risks embedded in certain operating contexts, independent from a company’s commitment to upholding the right to freedom of expression.
Yahoo! was widely criticised by NGOs such as Amnesty International7 after it released data that allegedly led to the prison sentences of online writer and corruption critic Li Zhi and online political activist and journalist Shi Tao in 2003 and 2005 respectively. In the case of Shi Tao, Yahoo! allegedly complied with requests from the Chinese authorities for information regarding an IP address connected to a cn.mail.yahoo.com email account. The information provided by Yahoo! Holdings (Hong Kong) reportedly linked Shi Tao to materials posted on a US-based dissident website. Similarly, user account information allegedly provided by Yahoo! was used to build the prosecutors’ case against Li Zhi.
This illustrates the potential legal and financial risks associated with complying with government directives that may result in complicity in infringements on the right to freedom of opinion, speech and expression.
Internet, ICT and media companies are, due to the nature of their business, most likely to encounter this dilemma. However, some of the examples below show that it has the potential to be encountered by all businesses, particularly those operating in, sourcing from or selling to repressive and (politically and culturally) sensitive environments.
This dilemma may be encountered when:
On 21 July 2009, for example, Knauf Gips KG, a major manufacturer of building materials, sent a letter (printed in the Wall Street Journal8) to its employees in Iran stating that they would be fired if they participated in the political demonstrations that followed the contentious Iranian presidential elections. The letter reminded employees that Knauf Gips is an apolitical entity and stated that it does not approve of any acts against the current Iranian government. It was reportedly written following the arrest of one of the company’s executives.
Newspaper reports in the US had suggested that the Iranian government had pressured the company into writing the letter as a condition for the executive’s release. The letter was subsequently withdrawn on 3 August 2009 after details were published in the German and international press, resulting in widespread public criticism of the company.
Under a law that took effect in India in October 2009, for example, corporate officials from any web site that fails to comply with requests to take down material or block sites can face a fine and/or a jail sentence of up to seven years. Gulshan Rai, an official in the Ministry of Communications and Information Technology, was quoted in the Wall Street Journal9 in January 2010 as saying: “If you are doing business here, you should follow the local law, the sentiments of the people and the culture of the country.”
The most high profile cases have arisen where ICT and Internet companies have been requested to provide information about journalists, bloggers, writers or other sources of political dissent. There is a risk that this information is used to prosecute activists and others for exercising their right to freedom of opinion, speech and expression (see the Yahoo! example above in which the company allegedly provided the Chinese government with data that allegedly led to the prison sentences of online writer and corruption critic Li Zhi and online political activist and journalist Shi Tao).
Although the risk of complicity holds particular significance for ICT and telecoms companies, a risk may also be presented to technology companies that provide security apparatus to repressive regimes as there is a risk that surveillance and other technology could be misused to repress dissent.
The BBC reported10 in July 2009, for example, that in the United Arab Emirates BlackBerry users were asked by UAE telecoms firm Etisalat to download performance software that subsequently was discovered to be a surveillance application that could enable access to private information and emails.
This is a particular dilemma for a company if one of its employees faces arrest and prosecution for the expression of political or other opinions. In November 2009, for example, an Azerbaijani court jailed Adnan Hajizade, a video blogger and member of the ‘OL!’ opposition movement, and activist Emin Milli, for two and two and a half years respectively. The bloggers claimed to have been arrested as a result of their online criticism of the local authorities.
Reuters reported11 in July 2009 that Hajizade works for BP’s public relations team in Baku. BP expressed concern at the arrests and stated that this was something it was “taking very seriously.” A spokesman for the company noted that it intended to raise the issue with the government.
Examples of scenarios companies might face when operating in emerging economies include:
China: The government continues to block access to websites it classes as controversial and monitors Internet use, controls contents and restricts information. Those who violate regulations are imprisoned. Blocked websites include those relating to Taiwan, Tibetan independence, religious and spiritual organisations, human rights organisations, democracy activists and the 1989 Tiananmen crackdown.
Egypt: The government frequently censors domestic and international publications and media content deemed by the government to be offensive to public morals, detrimental to religion, or likely to cause a breach of the peace. The domestic media self-censor due to fear of government reprisal.
In March 2009, Reporters Without Borders included Egypt on its list of 15 ‘Internet Enemies’ for a second successive year. The government has increased online censorship and prosecution of bloggers, particularly those publicising information about human rights violations.
Iran: The right to freedom of opinion, speech and expression can be overridden when in conflict with the fundamental principles of Islam, may damage the Islamic Republic or offend its religious authorities and leaders. The law also prohibits any form of “propaganda” against the state, which can result in imprisonment for up to one year. Insulting Islam is punishable by death.
The US Department of State reports that self-censorship is the norm for Iranian journalists, as all media outfits are closely monitored by the government. The Ministry of Culture and Islamic Guidance inspects foreign printed materials before they are circulated in Iran. The government increasingly uses filters to block access to local blogs and Western web sites.
Russia: The government maintains control over the majority of the media through direct ownership or through close links to private companies. This compromises their autonomy and restricts coverage of issues deemed to be sensitive, including developments in Chechnya and human rights issues. Journalists are intimidated, harassed, and killed with impunity – including by government security forces. This leads to journalists self-censoring.
Turkey: Constitutional restrictions and laws prohibit insults to the government, state, Turkey’s founding father Mustafa Kemal Atatürk and institutions and symbols of the republic (including the armed forces) – including on the Internet. Internet Service Providers (ISPs) face penalty or imprisonment if they fail to block website access within 24 hours of a judicial order.
As a result of these restrictions, the US State Department reports that by 11 May 2009, courts and prosecutors had issued 2,601 orders to ban websites in response to approximately 81,691 complaints. This compares with 1,475 orders to ban web sites in response to 17,768 complaints in the whole of 2008.
Viet Nam: The government attempts to control and restrict Internet traffic. It monitors online activity, including access to emails and searching for sensitive words. Cyber dissidents are targets for harassment and arrest. Members of Bloc 8406, an Internet-based pro-democracy movement, have been targeted in government crackdowns and accused of “slandering” and “distorting” government policies.
Websites of pro-democracy and human rights groups, as well as domestic and international independent media, are also blocked. The US Department of State reports that in November 2009, the government ordered ISPs to block social networking site Facebook.
Business has a responsibility, as outlined in the UN’s the “Protect, Respect and Remedy”12 policy framework, to respect all human rights. This includes freedom of opinion, speech and expression. Where a company fails in its responsibility, allegations of complicity13 may arise if it or its suppliers participate in or benefit from any actions that result in infringements on the right to freedom of opinions, speech and expression.
A number of information and communications technology companies have been exposed to reputational risk as a result of their alleged role in restricting this right. These include activism and legal cases against the company that result in brand contamination and financial costs (see below):
Significant pressure resulting from exposure to reputational and legal risks means that a company may be faced with difficult strategic choices. This may include whether to invest or remain in a challenging or repressive country. This is a case of balancing the sound (and potentially long-term) commercial reasons for investing (profit, market capitalisation etc.), against the short and long-term reputation and competitiveness risks that may be incurred (as outlined below).
In March 2010, Google proceeded with its threat and shut down14 its search service on the Chinese mainland, instead setting up its headquarters in Hong Kong (Google.cn now redirects visitors to google.com.hk). The decision followed an attack on the company which was designed, according to Google, to “limit free speech on the Web.” Google announced on its Official Google Blog15 that it ceased its self-censorship of search results in China. Nonetheless the Chinese government’s Internet filtering system will continue to prevent results being returned when searches are conducted using sensitive words and phrases such as “Tiananmen Square 1989” on google.com.hk.
On 24 March 2010, US Internet company GoDaddy announced at a US congressional hearing that it too would stop selling websites with Chinese domain names because of the radical controls being demanded by the Chinese authorities, according to a Reporters Without Borders press release.16 Google had previously come under years of significant pressure from consumers and activists over the company’s presence in China, which may have influenced other companies such as GoDaddy in its decision - given the associated risks of remaining.
It could be argued that a significant amount of the brand value and heritage of internet companies such as Google, and media groups such as the Financial Times, is based on freedom of information, integrity and holding people to account. Any activism against a company following allegations of complicity in infringements of the right to freedom of speech, therefore, may result in brand contamination, potential boycotts, reduced sales and a loss of market share.
Any evidence of unethical behaviour on the part of the company also has the potential to impact on employee morale, motivation, recruitment and retention. It could also jeopardise commercial partnerships and membership organisations.
Examples include:
Such cases may arise if the company restricts the right directly, or when it provides private information to governments which is then used to prosecute activists and bloggers, for example. This may result in significant legal costs and damages, as well as the use of valuable management time, significant brand contamination and potential legal sanctions.
In 2007, for example, Yahoo! was sued (Wang Xiaoning v. Yahoo! Inc) in the US under the Alien Tort Claims Act by the World Organisation for Human Rights USA. The action was taken on behalf of Wang Xiaoning and Shi Tao, for handing personal information about pro-democracy users in China to local authorities, which allegedly helped lead to their imprisonment and torture. The parties agreed22 to a private settlement and issued a joint stipulation of dismissal in which Yahoo! agreed to bear the plaintiffs’ legal costs and establish a fund “to provide humanitarian and legal aid to dissidents who have been imprisoned for expressing their views online.”
This may occur as a result of allegations of complicity in infringements on the right to freedom of opinion, speech and expression. This could translate into a loss of share value, reduced market confidence and access to capital, as well as reputational damage.
Ahead of Cisco System’s Annual General Meeting in November 2009, for example, a group of 17 investors representing over 24 million shares (US$580 million) used a shareholder proposal,23 led by Boston Common Asset Management, to urge the company to adequately manage its human rights risks. The move, introduced for a fifth successive year, was partly prompted by the fact that Cisco’s General Counsel has been called on two occasions to testify before the US Congress to describe the company’s alleged role in limiting freedom of expression in China (where it has investments of US$16 billion) and elsewhere.
This dilemma occurs when companies are operating in contexts where national laws and government requests of companies conflict with international standards. In order to minimise the risk of complicity in infringements on the right to freedom of opinion, speech and expression, responsible companies may engage in due diligence actions, which might include introducing policies and procedures that define ways of operating in such environments in a manner which ensures respect for these basic freedoms.
Specific actions for responsible business might include:24
Companies at particular risk of negatively impacting the right to freedom of opinion, speech and expression may consider adopting a more detailed human rights policy that addresses freedom of opinion, speech and expression. In particular, such a policy may outline how the company could responsibly and appropriately handle pressures from governments to censor media, or to provide them with information about consumers and users of company products and services.
The policy could emphasise commitments to:
In order to embed such policy commitments into the way the company conducts its business, effective communication of the policy and associated guidance to other interested stakeholders where appropriate, including host governments, will be important. It could identify key performance indicators against the implementation of the policy, including once it has been tested against real situations in which government demands or national laws impact on the right.
Performance indicators could also relate to transparency, including in relation to public disclosures of how often and why the company has restricted information. On 20 April 2010, for example, Google announced on its Official Google Blog25 that it has released a Governments requests tool that provides details about how often it has been asked by governments to censor information or to hand over data as “just the first step toward increased transparency.”
The Global Network Initiative (GNI) Principles and Implementation Guidelines provide a good guideline for companies wanting to develop internal policies and practices in relation to freedom of opinion, speech and expression. The Principles are based on international standards for human rights and provide a framework for ICT companies striving to respect and support human rights. For example, GNI participants are expected to “avoid or minimize the impact of government restrictions on freedom of expression” and to “respect and protect the freedom of expression rights of their users when confronted with government demands, laws and regulations to suppress freedom of expression, remove content or otherwise limit access to information and ideas in a manner inconsistent with internationally recognized laws and standards.”
When operating in environments that restrict freedoms of speech, opinion and expression, a company may consider establishing defined step-by-step procedures stating how it might respond to government requests to censor information or to provide user-data.
Such procedures should reinforce company human rights and freedom of speech, opinion and expression policies (where they exist). The procedure could, for example, focus on identifying and defining the legitimacy of information sharing – particularly when it may expose the company to the risk of complicity in human rights violations.
When engaging with host governments, particularly on the issue of information sharing and censorship, some options might be:26
When faced with a situation in which government demands conflict with the company policy and domestic and international law and standards, a company may consider challenging (above and beyond the procedures noted) the relevant government bodies. This could include a challenge in domestic courts, as well as seeking the assistance of relevant government authorities, international human rights bodies or non-governmental organisations. It is advisable that cases are selected according to the potential beneficial impact on freedom of expression, the likelihood of success, the severity of the case, cost and the representativeness of the case as part of a larger trend.27
Companies may consider engaging other businesses operating in the same countries, as well as experts, human rights organisations, academics, journalists and local communities. This is with the aim of fostering shared understanding of the key risks and opportunities in a specific operating context (global and local), and tailoring actions and mitigation strategies accordingly.
This may include possible opportunities to work with peers to develop a unified position for engagement with host governments on freedom of expression issues, as well as participating in sector-wide initiatives and/or working to develop best-practice guidance where appropriate. In doing so, companies may increase the weight of their influence if engaging governments with a united policy position.
Since its inception, the Global Network Initiative (GNI) has hosted or participated in numerous events designed to promote approaches that are consistent with its Principles. GNI members, including Google, Microsoft and Yahoo!, have also actively shared their individual approaches for implementing the Principles amongst themselves. This has included discussions on how to address key issues as they arise, including on the real potential restrictions to freedom of expression, as well as approaches to collaboration with law enforcement agencies in multiple locations around the world.
A company may consider conducting a formal human rights impact assessment (HRIA) where appropriate and feasible. A HRIA can be used as a pro-active step to understand how existing and proposed company activities may impact on the right to freedom of opinion, speech and expression.
A company may, for example, prioritise assessments according to the markets, products, technologies and services that present the greatest risk of infringing upon the right to freedom of opinion, speech and expression, as well as upon entering new markets.
In designing a HRIA, a company may wish to consult existing guidance documents, such as the International Finance Corporation, UN Global Compact and International Business Leaders Forum’s, Guide to Human Rights Impact Assessment and Management – Road-Testing Draft, as well as the Global Network Initiative’s Implementation Guidelines.
A HRIA may be used as a preliminary baseline risk assessment, as a means to predict outcomes and to assess gaps in company policies and procedures. It can help companies identify circumstances where freedom of expression or privacy may be jeopardised or advanced, and to develop appropriate risk mitigation strategies that will enable the company to uphold its duty to respect the right to freedom of opinion, speech and expression, as outlined in the “Protect, Respect and Remedy” policy framework.28
A HRIA may include an assessment of the external impacts (of the operating context) and the internal impacts that the company itself may have on the right.29 Assessments could focus on company impacts, but also the risks posed to employees and local community members who choose to express an opinion relating to the business activity that may be deemed controversial in the view of government authorities. A company may wish to consider and communicate the extent to which it will stand by employees in such circumstances.
Yahoo! has publicly committed to conducting HRIA in order to understand the human rights implications of its business decisions. It includes an assessment of:
As part of the HRIA process Yahoo! consults with a variety of local and regional experts, government agencies, human rights organisations, academics, journalists and social media experts.
The Global Network Initiative developed Implementation Guidelines, available to all of its members on its Wiki, which include guidance on how different levels of assessment could be undertaken and prioritised depending on the purpose of the impact assessment.
When operating in or selling to restrictive and challenging environments, a company may consider providing human rights training to employees (and suppliers, business partners and distributors where appropriate) that includes specific modules on freedom of opinion, speech and expression. It may choose to provide more detailed training to those employees that are most likely to face freedom of expression and privacy challenges as determined through impact assessments and other due diligence preventative measures. This could include middle managers, as well as employees that have direct responsibility for company and user-generated content.
If provided, training might seek to foster an understanding of:
Freedom of opinion, speech and expression is upheld in the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights. Article 19 of the ICCPR guarantees the right to freedom of opinion, speech and expression, which includes “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”30
Freedom of speech and expression is not absolute. General Comment 10 of the Human Rights Council reiterates that the right to freedom of expression carries with it special duties and responsibilities, and hence can be subject to some restrictions.31 It may be subject to restrictions in order to maintain respect of the rights or reputations of others.
It may also be restricted in order to protect:32
On 20 April 2010, for example, Google announced on its Official Google Blog34 that it has released details about how often it has been asked by governments to censor information or to hand over data as “just the first step toward increased transparency.”35 According to David Drummond, Google’s chief legal officer: “The vast majority of these requests are valid and the information needed is for legitimate criminal investigations or for the removal of child pornography.”
Despite protections in international law, freedom of opinion, speech and expression is poorly protected in a wide range of countries.36 Reporters Without Borders’ (RSF) ‘World Press Freedom Index 2009’37 shows that the press is most restricted in Eritrea, North Korea, Turkmenistan, Iran, Myanmar, Cuba, Laos, China, Yemen and Viet Nam.
Restrictions in these countries are often along political and ideological lines and range from direct government control of the media and heavy censorship, including of the Internet, to strong legal and criminal punishments. ICT, media and Internet companies have been asked to comply with government directives in relation to the censorship of political and ‘sensitive’ expression.
According to the Maplecroft Freedom of Opinion and Expression Index 2012, the 10 highest risk countries in which companies are likely to face exposure to infringements on the right to freedom of expression (all of which are considered to present an ‘Extreme Risk’) are:
| Cuba | Iran |
| Myanmar | North Korea |
| Somalia | South Sudan |
| Sudan | Syria |
| Uzbekistan | China |
In his April 2009 report to the UN Human Rights Council,38 the UN Special Rapporteur (UNSR) on the promotion and protection of the right to freedom of opinion and expression noted that violations are not confined to countries where the political, social and economic situation is particularly difficult, but also occur in transitional or long-established democracies. RSF’s World Press Freedom Index 2009 shows for example, that speech is also restricted in some European countries, including France, Slovakia, Croatia and Italy.
Other human rights that are typically associated with infringements of the right to freedom of opinion, speech and expression include:
Right to an effective remedy for acts violating fundamental rights (UDHR, Article 8): In extreme cases, personal information provided by Internet companies may result in individuals facing legal punishments for expressing their opinion freely. This could include bloggers or activists being punished for their political or other ‘sensitive’ expression in a court of law. A company risks accusations of complicity in violations of the right to an effective remedy if these trials are deemed unfair and lacking in due process.
Right to liberty and security of person (ICCPR, Article 9): In some jurisdictions, employees and others risk arbitrary arrest and detention, intimidation, torture and other risks to their personal security for expressing an opinion or belief that is either illegal or not tolerated.
Right to freedom of assembly (ICCPR, Article 21): Some companies have been accused of complicity in actions that prohibit stakeholders from expressing their opinion freely through their right to assemble. A company could restrict local communities and other stakeholders, for example, from freely assembling to express their opinion about its operations (e.g. through the use of excessive force by security forces during demonstrations). A company could also prohibit its employees from taking part in political protests (see the Knauf Gips example in the “Dilemma scenarios relating to freedom of expression” section).
Right to freedom of association (ICCPR, Article 22): In restrictive environments, the right to form or join certain types of associations (including political parties, religious societies, sporting and other recreational clubs, non-governmental organisations and trade unions) is often not adequately upheld.
Right to participate in public life (ICCPR, Article 25): This right may be impacted through the use of undue political influences on or by the media, including demands to censor information deemed “politically sensitive.”
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