June 7th, 2021

At CELE, we have been working on the use of “impact assessment” mechanisms on human rights by companies in the world of technology and communications, with a special focus on freedom of expression. The subject was as interesting as something foreign to us at the beginning.

 On the one hand, it is a tool of the corporate world, closely linked to forms of corporate governance undoubtedly linked to the world of "corporate social responsibility". On the other hand, the name of these mechanisms suggested a link with the environmental impact studies that — since the 1960s at least — were imposed as a way to control that certain state parameters regarding the protection of the environment are respected by the companies. which are usually behind various production processes. Human rights impact studies, or HRIAS, were presented to us from the outset as a strange animal, awkwardly situated between good business practice and demanding international human rights standards.

The story of how this tool was developed and how it emerges — today — as a “preferred” mechanism for technology companies when it comes to accounting for how their services affect human rights was extremely interesting, and we capture them in two works that here we present.

In the first, ICT and Human Rights  We give an account of the conceptual trajectory of the tool, and how it is linked to different trends related to a fundamental question: how human rights can guide business practices. There we find that the world debated for decades a model required, based on international treaty law. That model failed because it never saw the light. In its replacement, since the mid-2000s the United Nations proposed a voluntary scheme in which HRIAs and other corporate practices such as due diligence. However, the HRIAs are conceptually linked to other state practices not based on international law, but on the old national states: the impact studies were mechanisms devised by the states to ensure that the actors operating under their orbit comply with established regulatory schemes. through laws. On the other hand, certain national regulations sought to influence what companies do outside the limits of the nation's territory. Thus, although we see them as within a voluntary scheme, we believe that they are in contact with more traditional regulations and we do not see it impossible that — in the future — they form part of a more traditional regulatory scheme, although the form in which that regulation will acquire be — surely — innovative and disruptive: neither binding international treaty nor national law, but something more akin to the co-regulation scenarios discussed by Marsden et al. in a recent job.

The second job  Human Rights Impact Assessments   addresses the use of the tool in the technology and communications sector (TICS). It is an exploratory study, based on the limited information available, since many of the impact studies were not published or only some partial results or executive summaries were made public. But, based on that analysis, we arrive at some provisional conclusions:

  1. Technology companies are more willing to be transparent about their own analysis when there is a clearly identified 'malicious' actor, such as authoritarian states or citizens who use their services to promote problematic ideas (linked to terrorism, incitement to violence, discrimination, etc.);
  2. HRIAs suffer from the lack of clarity surrounding the human rights standards they seek to use as a guide. This lack of clarity has two sources: reasonable disagreements about what human rights standards establish (and the existence of different and contradictory visions between them in different regions of the world) and the lack of an adequate understanding of the causal links that exist. between certain technologies and effects that are postulated to produce in society (such as, for example, the link between violence and certain discourses, or between disinformation and certain electoral behaviors, etc.). This lack of clarity responds to an empirical vacuum that can only be bridged with more and better research, for which it is essential to achieve the cooperation of companies.
  3. The lack of transparency regarding their use is inexcusable and must be addressed quickly if the tool is to function as a true source of accountability. In this sense, it is inexplicable that impact studies are not public, that the processes for their preparation are not transparent, and that even the methodologies used to develop them are not discussed horizontally with various actors.