Facebook, Hate Speech and Corporate Criminal Liability: Business and Human Rights Obligations
Connection is the end, and communication is the means. While the modes of communication have differed, from cave paintings to clay tablets, radio to social media, the primal intent remains the same – to connect with others and share ideas. There is however, a murky method in which communication has been used, by both businesses and states, to evoke feelings of anger, separatism and in certain instances violence. This article traces the responsibility to respect human rights of communication technology-based businesses.
UN’s History of Business and Human Rights and the Legally Binding Instrument
In 2005, UN Secretary-General Kofi Annan appointed John Ruggie as the special representative on “the issue of human rights and transnational corporations and other business enterprises”. This led to a framework for preventing and mitigating human rights abuses by business enterprises.[i] The framework was later endorsed by the Human Rights Council in 2011 and was known as the UN Guiding Principles which looked into the “Protect, Respect and Remedy” approach.[ii] They are an inter-related and dynamic system of preventative and remedial measures for human rights abuses by business enterprises, and rest on three pillars – the state duty to protect, businesses’ responsibility to respect the human rights and access to remedy.
In 2014, the Human Rights Council adopted resolution 26/9 to elaborate a legally binding instrument on transnational corporations and other business enterprises with respect to human rights.[iii] This resolution established an open-ended intergovernmental working group to elaborate on regulations binding transnational corporations and other business enterprises under international human rights law.
This resolution on drafting a legally binding instrument set at its foundational basis, the resolution 17/4 of 2011 which endorsed the UN Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework.[iv] The working group thus drew on the primary human rights texts – UDHR, ICCPR and ICESCR; and on the UN Guiding Principles.[v] It was made clear that the highly accepted UN Guiding Principles were to serve as a basis for the draft instrument.
While a substantial part of the development in this sphere involves the impact of supply chains and its involvement in large scale human rights violations, this article focuses on the responsibility of communication technology-based businesses and their impact on human rights by supporting authoritarian regimes and inciting violence. For the same, three case studies are considered to substantiate its point – a. the role of the radio company in the Rwandan genocide, b. the role of Facebook in the Myanmar crisis; and c. the role of WhatsApp in mob lynching in India. By extracting the relevant responsibility of the communication technology-based businesses under the Guiding Principles of 2011 (the Principles), the article would showcase the need for the application of the Principles and the Legally Binding Instrument (LBI) to the human rights violations committed with the abetment of technological business giants.
During the 1994 Rwandan riots, the role of the Radio Télévision des Mille Collines (RTLM) was paramount. The RTLM radio was a powerful tool utilised to incite and direct the Rwandan genocide which took place from April through early July of 1994 leading to 800,000 Tutsis and moderate Hutus being massacred.[vi] By broadcasting the “slavery” of Hutus at the hands of the Tutsis in colonial times, the radio broadcasts justified the genocide by giving it the identity of a slave rebellion. Thus, the radio company, RTLM fulfilled the politicised agenda of Tutsi extermination. Recognising the important part of the radio company in the genocide, the International Criminal Tribunal of Rwanda tried the RTLM and convicted Ferdinand Nahimana, founder and ideologist of RTLM, Jean-Bosco Barayagwiza, high ranking board member of the Comité d’initiative of the RTLM for genocide, incitement to genocide, conspiracy, and crimes against humanity, extermination and persecution. Ferdinand Nahimana was sentenced to life imprisonment and Jean Bosco Barayagwiza was sentenced to 35 years imprisonment[vii] which was reduced to 30 years for Nahimana and 32 years for Barayagwiza at the appeals stage.
In 2018, Facebook was complicit in Myanmar’s attacks on minorities. Anti-Rohingya propaganda was spread on this platform. Facebook, being a major source of information for the country, was used during the Rohingya crisis, specifically by the military, to spread disinformation and hate speech against the Rohingya minority.[viii]This generated widespread feeling of vulnerability and fear that could be salved only by the military’s protection.[ix] While Facebook has acknowledged that it was used to foment division and incite offline violence in Myanmar[x], it refuses to give data regarding the Myanmar officials accountable for the genocide. This is despite the fact that a UN fact-finding mission highlighted that Facebook played a determining role in the incitement to violence, as the posts go unchecked to a large extent.There is no action against the platform for the content posted on it.
Thirdly, in 2019, fake news content was forwarded in WhatsApp in India inciting a mob to take matters into their own hands and lynch people across India. The reasons ranged from possible child traffickers to transportation of cattle for the production of beef.
With the content on Facebook and WhatsApp being questioned, no specific action has been taken against the companies recognising their responsibility to protect human rights. Due to the high amount of content being posted regularly on both platforms, individual self-regulatory actions have been taken, such as Facebook Oversight Board or new WhatsApp rules for forwarding messages. While this checks off the second pillar of the Guiding Principles to some extent, the State aspect of protecting human rights is clearly lacking.
State’s Duty to Protect?
Principle 1 of the 2011 Guiding Principles reads “States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.” The State’s duty to protect is a standard of conduct which has not been upheld either in India or Myanmar. Neither has there been any international action against the platforms for their human rights abuses by not regulating the content being posted on these websites. In 2014, the EU, through the Human Rights Guidelines on Freedom of Expression Online and Offline, committed to promote action at international level to develop best practices and respect for human rights with regard to the export of technologies that could be used for surveillance or censorship by authoritarian regimes.[xi] Such commitment is needed in India and Myanmar to protect against future use of communication platforms to spread hate, incite violence and propagate genocide.
Corporate Criminal Liability – A Viable Option?
While viewing corporate responsibility, a perspective to be looked into is criminal liability. In the Rwandan case, criminal liability was introduced against the RTLM and the heads of the radio were held criminally liable. This followed the traditional view in criminal law, i.e. holding individuals and not corporations, responsible. This was based on the doctrine of societas delinquere non potest (corporations cannot commit crimes).[xii]Lord Thurlow said “Corporations have neither bodies to be punished, nor souls to be condemned; they therefore do as they like”.[xiii]But this traditional view was gradually changing with the recognition of corporations in criminal trials. During World War II, a corporation was responsible for manufacturing the poisonous gas that was used in the extermination camps.[xiv] While, the persons responsible were put on trial (with several being found guilty), it raised a pertinent question about the criminal liability of the corporation as a whole.
Currently, the International Criminal Court entertains individual criminal responsibility[xv] or superior responsibility for those members of the organization who were complicit in crimes specified in the Statute.[xvi] Therefore, currently there is no jurisdiction under the Rome Statute to hold corporations liable for criminal activities. But corporate officers can be held responsible for the company’s criminal conduct.[xvii]
Although ICC does not recognise corporate criminal liability, the Special Tribunal for Lebanon (STL) took a different turn. The question that came up before the STL was whether legal persons could be held in contempt. The issue was regarding the language of Rule 60 bis of the Statute. In a remarkable departure from the usual international criminal justice context, the court held that the provision must be read so as to include “legal persons” as corporate entities cannot be any more entitled than natural persons to interfere with the judicial process.[xviii] In doing so, STL rejected the principle of societas delinquere non potest and acknowledged that legal persons should be held accountable for criminal behaviour attributable to them.
A trend away from the tradition principle was further pronounced with the new Malobo protocol adopted by the African Union in 2014 which included a jurisdiction to prosecute corporations.[xix] Under traditional principles of criminal law, for an accused to be held liable – the crime committed must satisfy the criteria of mens rea (knowledge and intention) as well as actus reus (the act carried out). One of the main arguments against corporate criminal liability was the inability to showcase intention. However, with the amendments made through Malabo Protocol, concepts such as corporate intention, corporate knowledge, and corporate attribution have been clarified.
With such strides being made to hold corporations liable, it is now pertinent to implement the laws in place and take action against the platforms – Facebook and WhatsApp for their inaction in stopping the widespread hate and violence. Facebook (and WhatsApp) was weaponised[xx] for the political ideas leading to death and genocide, and not attributing its responsibility under the Business and Human Rights jurisprudence would be akin to ignoring the laws that are in place. Moreover, due to their ability to surpass geographical boundaries, international courts should be used as the appropriate forum to resolve human rights abuses by corporations.[xxi]
In conclusion, I argue that these three scenarios narrate the increasing effect of communication technology-based businesses on human rights violations that are state led. These violations should be recognised specifically, through criminal liability. Such recognition paves way for technology to be developed in a responsible manner. Article 8 of the LBI provides for both civil and criminal liability. The question of balancing between freedom of speech and expression with hate speech will arise on a case-by-case basis. However, it cannot be denied that there is a need to moderate the content on social media, which leads to violence – as seen in the recent US Capitol hill siege due to Trump’s tweets. I propose that these issues should also be considered under the broader business and human rights jurisprudence, and should be resolved internationally. This would lead to a broader responsibility on the shoulder of businesses regarding their human rights obligations.
[i] John Ruggie, Protect, Respect and Remedy: A Framework for Business and Human Rights — Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, 8th sess, Agenda Item 3, UN Doc A/HRC/8/5 (7 April 2008) paras 51–81 (‘Protect, Respect and Remedy’).
[ii] United Nations, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (2011), https://www.ohchr.org/documents/publications/GuidingprinciplesBusinesshr_eN.pdf.
[iii] Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, supra note 4..
[iv] Human rights and transnational corporations and other business enterprises, A/HRC/RES/17/4.
[v] United Nations, supra note 19.
[vi]Meghan Lyon, Radio in the Rwandan Genocide, The Devil’s Tale: Dispatches from the David M. Rubenstein Rare Book & Manuscript Library (2013), https://blogs.library.duke.edu/rubenstein/2013/05/10/radio-in-the-rwandan-genocide/ (last visited Jan 26, 2021).
[vii]The Prosecutor v. Ferdinand Nahimana et al., (2003), https://unictr.irmct.org/sites/unictr.org/files/case-documents/ictr-99-52/trial-judgements/en/031203.pdf.
[ix]Hakim, Neema,How Social Media Companies Could Be Complicit in Incitement to Genocide,21 Chicago Journal of International Law 1-8 (2020), https://chicagounbound.uchicago.edu/cjil/vol21/iss1/8
[x]Alexander Stevenson, Facebook Admits It Was Used to Incite Violence in Myanmar, NY Times, November 6, 2018, https://www.nytimes.com/2018/11/06/technology/myanmar-facebook.html.
[xi]Corporate Social Responsibility, Responsible Business Conduct, and Business & Human Rights: Overview of Progress, 41 (2019), https://media.business-humanrights.org/media/documents/files/documents/Brochure_CSR_BHR_overview_of_progress.pdf.
[xii]Desislava Stoitchkova, 38 Towards Corporate Liability in International Criminal Law 7 (1 ed. 2010).
[xiii]John Poynder, Literary Extracts (1844), vol. 1, p. 268.
[xiv]In re Krauch and Others (IG Farben Trial) (1948) 15 AD 668.
[xvi]Rome Statute of the International Criminal Court, 2187 UNTS (1998).
[xvii]David Scheffer, Corporate Liability under the Rome Statute, 57 Harvard International Law Journal 35–39 (2016).
[xviii]Akhbar Beirut S.A.L. & Mr. Al Amin (STL-14-06), (2016), at para. 24-26.
[xix]African Union, The Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the Malabo Protocol) (2014), http://www.coalitionfortheicc.org/sites/default/files/cicc_documents/amnesty_international-africa-malabo_protocol-2017.pdf.
[xx]Neriah Yue, The “Weaponization” of Facebook in Myanmar: A Case for Corporate Criminal Liability, 71 Hastings Law Journal 813 (2020).
[xxi]Jelena Aparac, Which International Jurisdiction for Corporate Crimes in Armed Conflicts?, 57 HarvardInternational Law Journal 40 (2016).
This post has been authored by Ms. Almas Shaikh, Research Associate at Centre for Law and Policy Research. She was assisted by Mr. Pranav Nayar, a student at RGNUL, Punjab. This blog is a part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion on contemporary issues.