As human societies increasingly become subject to corporate rule, including through cooptation of the state, perhaps nowhere is this disturbing trend so potent and stark as in the digital area. Not only are the digital transnational corporations (TNCs) firmly into practically every social system, including those occupying the 'commanding heights', and into organising people's personal lives, their form is often both more monopolistic and more global than corporations in many other sectors.

This creates a dangerous situation whereby, as digital TNCs begin to control important aspects of our social and economic lives, they become increasingly difficult to control through nation-state based policy regimes. They can conduct their operations remotely, and seamlessly move their principal offices and bases of operation, as has been seen with regard to an unprecedented level of tax evasion by these companies.

We therefore need, at one level, a new set of global policy principles to guide the work of digital TNCs within which national regimes can be harmonised and work effectively in cooperation. At another level, in a complementary capacity, we need a new global instrument that could restrain human rights abuses, as described in proposed global principles, but applied to the context of digital TNCs.

Below, we briefly describe the digital context of human rights in relation to digital TNCs with reference to some of the six points[1] offered for consideration by the Global Campaign to Reclaim People’s Sovereignty, Dismantle Corporate Power and Stop Impunity.

1. Treaty focus on TNCs & other Business Enterprises of international scope in relation to Human rights

It is not disputed that offline law applies equally online.  Therefore, there should be no doubt that all companies must respect human rights online as well as offline.  And this applies also to transnational companies active in ICTs in general, and the Internet in particular.

Yet many transnational Internet companies appear to act as if they were bound only by the laws of the country in which they are incorporated or, worse, that existing national laws do not apply to them.  Consider for example Uber and AirBnB, whose business models are based on the premise that, respectively, labor and taxi laws, and hotel laws, do not apply to them.

By denying the application of national laws, such companies attempt to avoid complying with certain human rights, in particular worker’s rights.

A future treaty on TNCs must be clearly and fully applicable to companies active in the online world and must preserve the democratic right of people to make public policy decisions. Since digital TNCs can easily operate from any state, and easily move from one state to another state, such a treaty must recognize that they are global entities that must be subject to global norms, and there must be a mechanism to enforce the global norms.

2. Extraterritorial Obligations on Governments in relation to TNCs and human rights

Many of the most popular ICT products and services are provided by TNCs, and this is even more so for the Internet, which is dominated by a few TNCs.  Governments should have the obligation to ensure that TNCs that are based in, or that operate in, their territory respect human rights globally.

Such rights include the right to privacy.  Yet that particular right is regularly violated, by forcing users to agree to waive their rights through click-through contracts of adhesion, if they wish to use the so-called free services offered by dominant Internet companies.

The services in question are not at all free: they are paid for by the data that the users provide.  That data is valuable, and it is monetized by the Internet companies, primarily in the form of targeted advertising.[2]

While states have the duty of protecting human rights, what we see in practice regarding digital TNCs is that they are able to coopt the state in which they are based (in particular the USA) so that the state no longer performs its duty. The (now hopefully defunct) TPP, TPIP, and TISA negotiations are an example: the US (and other states) pushed for trade agreements that would have reduced the ability of other states to protect privacy and other rights of citizens.

3. An Instrument of Enforcement in relation to the Treaty application

It has been proposed to create an International Tribunal on Transnational Corporations and Human Rights that would operate as a complement to national, regional and universal mechanisms and guarantee access to an independent judicial forum for affected people and communities to obtain justice for violations of their civil, political, social, economic, cultural and environmental rights.

Such a Tribunal is particularly needed for the field of ICTs, including the Internet, because of the global nature of the field and the difficulties in enforcing national laws on dominant TNCs.

Further, special-purpose treaties for specific ICT/Internet issues are needed, for example regarding Internet domain names and addresses, privacy, surveillance, encryption, use of personal data, use of algorithms, etc., because national laws do not deal adequately with such issues: in particular, there are large divergences across jurisdictions, but ICTs in general, and the Internet, are global phenomena that must be governed globally. The situation regarding Internet domain names and addresses is particularly clear, given that a US entity, ICANN, subject to US law, now has full control over them, at least nominally.

In the absence of specific treaties, and an international Tribunal, dominant private companies in effect create and enforce their own laws, through contracts of adhesion imposed on their users.

4. Democratic governance

As already noted, much of the ICT field is dominated by a few TNCs.  It is important to reclaim the sovereign right of states to regulate such companies, in particular to protect human rights and to place democracy before corporate power.

It has become fashionable, in particular in the field of Internet, to praise what is called a “multi-stakeholder” model of governance.  While all agree that it is important to consult all concerned stakeholders when making decisions, some of the proponents of that model assert that all stakeholders should have equal decision-making rights.  This in effect gives veto power to private companies and prevents governments from implementing public policies that are in the interests of all citizens.

It is not disputed that democracy is a fundamental human right. Thus, the Treaty on TNCs must guarantee that democratic mechanisms[3] are used to make public policy decisions regarding ICTs in general, and the Internet in particular. All people must be able to influence decisions that affect their use of ICTs and the Internet, and are entitled to affordable and non-discriminatory access, free of censorship and surveillance.

In particular, the treaty must address an issue that arises in practice: when a citizen of a country challenges some aspect of her relation with a digital TNC, the digital TNC often responds that the relation is not subject to the law, or jurisdiction, of the citizen’s country, but rather to the law and jurisdiction of the TNC’s home country, often the USA. This makes it very difficult for citizens to protect their rights.

For example, what effective recourse does a citizen have when her US-based cloud service provider unilaterally changes its terms and conditions, or goes out of business and loses all the citizen’s data?

5. Rights of Affected People

As stated by the Just Net Coalition[4]:

“The Internet has become a vitally important social infrastructure that profoundly impacts our societies. We are all citizens of an Internet-mediated world whether as the minority who uses it or the majority who does not. In this, our world, the Internet must advance human rights and social justice. Internet governance must be truly democratic.

“The Internet is reorganising public institutions, including those related to governance, welfare, health, and education, as well as key sectors such as media, communications, transport and finance. It has transformed the way we do many things; however the benefits promised for all have not been adequately realized. On the contrary - we have seen mass surveillance, abusive use of personal data and their use as a means of social and political control; the monopolization, commodification and monetisation of information and knowledge; inequitable flows of finances between poor and rich countries; and erosion of cultural diversity. Many technical, and thus purportedly 'neutral', decisions have in reality led to social injustice as technology architectures, often developed to promote vested interests, increasingly determine social, economic, cultural and political relationships and processes.

“Opportunities for the many to participate in the very real benefits of the Internet, and to fully realize its enormous potential, are being thwarted by growing control of the Internet by those with power - large corporations and certain national governments. They use their central positions of influence to consolidate power and to establish a new global regime of control and exploitation; under the guise of favouring liberalization, they are in reality reinforcing the dominance and profitability of major corporations at the expense of the public interest, and the overarching position of certain national interests at the expense of global interests and wellbeing.

“Existing governance arrangements for the global Internet are inadequate. They suffer from a lack of democracy; an absence of legitimacy, accountability and transparency; excessive corporate influence and regulatory capture; and too few opportunities for effective participation by people, especially from developing countries. The situation can be remedied only through fundamental changes to the current governance arrangements.”

A treaty on TNCs with respect to human rights will be an important step towards making the required fundamental changes.

- Richard Hill is President of the Association for Proper Internet Governance.

- Parminder Jeet Singh is a member of IT for Change, India.

  Both are members of the Just Net Coalition.

Article published in edition 520 (December 2016) of ALAI’s Spanish language magazine América Latina en Movimiento, titled Transnacionales y Derechos Humanos (Transnationals and Human Rights).