"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?"

According to the ICCPR, the right to freedom of opinion is absolute and cannot be restricted, but the right to freedom of expression can be restricted on very specific grounds. General Comment 34 of the Human Rights Committee reiterates that the right to freedom of expression under article 19 of the International Covenant on Civil and Political Rights (ICCPR) carries with it special duties and responsibilities, and hence can be subject to a narrow set of restrictions. These restrictions must be provided for in law and be necessary in a democratic society to:

• Maintain the respect of rights or reputations of others
• Protect national security or public order
• Protect public health or morals

Due to the significant relationship between freedom of expression and other rights in the ICCPR, the Committee highlights that a general reservation to the rights set out in article 19, paragraph 2, would be "incompatible with the object and purpose of the Covenant".

It is challenging for business to navigate the nebulous boundary between legitimate and illegitimate restrictions on freedom of speech and expression. This is particularly difficult when governments use the rationale of ‘national security' to stifle political opposition, activism and other forms of criticism. In recent years, this argument has been framed as a counter-terrorism issue which in some cases emanates from justified security concerns.

In addition, given the massive expansion of social media and Voice over Internet Protocol (VoIP) technology, companies may be asked by the authorities to restrict freedom of expression, on the grounds given in Article 20 of the ICCPR, when communications advocate national, racial or religious hatred constituting an incitement to discrimination, hostility or violence.

The state has the primary responsibility to protect its population's right to freedom of expression and it sets the standards that the private sector must respect in this regard. When operating in any jurisdiction, a company must respect national law and as a result, could 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 tries to compel 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:

• Obey the government's directives and/or national law, whilst at the same time risking complicity in – or direct responsibility for – the violation of the right of all citizens to freedom of expression under international law
• Challenge the government's directives and/or national law, whilst at the same time risking formal or informal sanctions – whether legal, commercial or otherwise – that may ultimately lead to negative business consequences and potential departure from the market

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.

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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.

For example, this dilemma may be encountered when:

• A company receives requests from host governments to censor content: Traditionally, the biggest dilemma for companies was to manage requests from governments intending to censor content for the purpose of curtailing dissent, rather than upholding international standards. Many companies publish annual transparency reports to detail the requests received and how they have responded.
• Increasingly, the spread of social media and online tools of communication have changed the nature of this dilemma, by placing a more responsibility on business to enforce standards. For example, social media outlets such as Facebook, Twitter and YouTube have been criticised for not doing enough to monitor and remove terrorist propaganda, or hate speech and online abuse, as well as criminal activity related to the slave trade and child pornography. In 2017, Facebook released new guidelines for its moderators to identify and remove content that contains graphic violence, bullying, hate speech, sexual content, terrorism and self-harm. The company took this action in response to government and civil society pressure, but it was also then subject to criticism for taking on the role of a censor.
• A government intervenes directly and without due process to block company operations that facilitate online expression. On 29 April 2017, Turkish authorities blocked all access to the open source platform Wikipedia. The site was blocked by the local Information and Communication Technologies Authority, under a provisional administrative measure, but without a court order. According to a local newspaper, Turkey had requested the removal of content on Wikipedia which it claimed presented Turkey as a "supporter of terror" and was designed to impugn the country's reputation. Failure to remove the content resulted in the site being blocked. Since the 2016 coup in Turkey, there have been reports of the Turkish authorities blocking online expression by suspending social media sites such as Facebook and Twitter, Instagram, YouTube and Vimeo.
• A company operates in countries where the law requires restrictions on the freedom of expression: In Malaysia, the authorities use national laws, including a sedition act, to curtail the freedom of expression of civil society groups, bloggers, activists, academics, students and journalists who post critical content. In 2015, 91 people were arrested, investigated or charged under the Sedition Act. For example, political cartoonist Zulkiflee Haque Anwar, was charged with 9 counts of sedition relating to social media posts, for which he faces a maximum of 43 years in prison. Furthermore, in April 2016, student activist Ahmed Shukri Kamarundin was arrested and detained for 5 days for a statement he made about the Sultan of Johor on Twitter in 2012. The broadly worded CMA is frequently used against those who have made comments allegedly insulting prime minister Najib or the royal family on social media. For example, in July 2016, a 76-year old man was arrested and held for three days for posting an offensive image of Najib in a Whatsapp message. Businesses operating in Malaysia are likely to encounter situations where their obligation to obey national law entails association with severe human rights abuses.
• A company receives direct requests from host governments to provide private information: In the aftermath of terrorist attacks, governments are also seeking access to addition, governments are putting pressure on social media from terrorist activities may request. 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. According to the UN rapporteur on freedom of expression, there is also a risk of companies cooperating too freely with democratic government requests. He notes that companies in the US and UK have facilitated law enforcement access to customer data that goes far beyond the minimum required. In 2017, following terrorist attacks in London, WhatsApp was criticised in the media and by government officials because its system of ‘end to end encryption' prevented the authorities from accessing messages sent by a terrorist just before he committed an attack on Westminster Bridge.
• Company technologies and products are misused to repress freedom of opinion, speech and expression: Although the possibility of complicity in rights infringements is particularly salient for ICT and telecoms companies, a risk may also be compelling for technology companies that provide support to the security apparatus guarding repressive regimes or that surveillance technology could be employed to repress dissent. The BBC reported 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.
• A company operates in countries with strict social and cultural values or where repressive regimes do not tolerate dissent: In many countries, the legal framework may be used to criminalise the expression of opinions online. For example, in Vietnam draconian laws criminalise public statements that are deemed to be propaganda against the state and bloggers and human rights defenders are at risk of detention for expressing critical views online. In 2017, the human rights defender, Nguyen Ngoc Nhu Quynh aka "Me Nam," was sentenced to 10 years in prison on charges of conducting propaganda against the state. She is one of the first activists in Vietnam to document violations by the authorities.

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Facebook recruits 3,000 more moderators following criticism for failing to address online extremism

Facebook was criticised by the UK government and civil society for not adequately blocking terrorist activity and propaganda on its platform. In May 2017, the company announced it would hire an additional 3,000 moderators to review material suspected of being linked to terrorism, child exploitation and hate speech. Facebook, together with Google and Twitter, had been criticised by the UK Home Affairs Committee for being "irresponsible". It was also accused of being too slow to remove offensive content, including recorded and live-streamed videos of murders taking place. Facebook moderators now review material using company guidelines that take into account national laws (such as prohibitions on Holocaust denial in Germany, for example) as well as international standards. The expansion of the moderator team illustrates the growing pressure companies like Facebook face to take decisions about censoring online content.

Google re-entry into China may come with risk of association with limits on free speech

In January 2010, Google effectively shut down its operations in China following 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 down its search service on the Chinese mainland, setting up its headquarters in Hong Kong.

According to news reports, Google is making efforts to re-enter the Chinese market. If the company's services expand, Google will once again be exposed to the risk of association with infringement of freedom of expression.

Turkey makes more than 3,000 requests to remove content from Twitter in the second half of 2016

The crackdown on opposition to and public criticism of the government in Turkey is impacting businesses operating in the country. In the second half of 2016, half of all the content removal requests that Twitter received were from Turkey. Of about six thousand requests received from July to December 2016, 3,076 came from the Turkish government, courts or police. These included requests to remove content posted by verified journalists and news outlets in Turkey. Twitter reports that it withheld content in 15 tweets and 14 accounts, which included images of terrorist attacks and content violating a national security council decision following the July coup. Twitter files legal objections to all court orders impacting journalists and news outlets. It also publishes all requests in a transparency report.

Online spread of anti-Muslim film highlights ‘adjudicatory' role of web giants

In September 2012, the appearance and subsequent dissemination of an US-made anti-Muslim movie demonstrated how websites such as Google, Facebook, and Twitter are now engaging in complex, quasi-judicial activities such as the weighing of free speech concerns. Tim Wu, a law professor at Columbia University suggested in a Sydney Morning Herald article, that, "[m]ost free speech today has nothing to do with governments and everything to do with companies". Although the White House eventually forced Google to block access to the video in some Middle East states, its content has still enraged much of the Islamic world. The decision to block access was a clear indication that Google had invoked the ‘clear and present danger' exception to the otherwise staunchly-protected US right to free speech.

Australia pushes for more cooperation between ‘Five Eyes' democracies to force companies to assist with decryption

In 2017, Australia was the latest democracy to consider applying broader limits to freedom of expression and privacy, in order to counter terrorist threats. The government is proposing collaborating with the Five Eyes intelligence network – comprising the US, UK, Canada, New Zealand and Australia – to impose greater legal obligations on device manufacturers and social media companies to cooperate with authorities in decrypting communications. Rights organisations are concerned that such a move could infringe on the right to privacy and freedom of expression; and, that similar methods could be purposefully misused by non-democratic countries.

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Business has a responsibility, as outlined in the UN's the "Protect, Respect and Remedy"1 policy framework, to respect all human rights. This includes freedom of opinion, speech and expression. Where a company fails in its responsibility, allegations of complicity2 may arise if it or its suppliers participate in or benefit from any actions that result in infringements on the right to freedom of opinion, speech and expression.

A number of ICT companies have been exposed to reputational risk as a result of their alleged role in restricting this right. Activism and legal cases against the companies alleged to be complicit in infringements on freedom of speech may result in brand contamination and financial costs (see below):

Challenges to long-term strategic decision-making

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).

The Global Online Freedom Act (GOFA) was introduced in the US House of Representatives on 6 May 2009 and was later passed in 2012. This Bill prevents US companies from "cooperating with repressive governments in transforming the internet into a tool of censorship and surveillance." The GOFA requires that internet companies disclose all material filtered in response to demands by foreign governments to the State Department. Leading internet companies such as Google, Yahoo! and Microsoft sought modifications to the Bill, arguing that, without the flexibility to negotiate they cannot protect the safety of local employees and that they may be forced to divest from repressive countries, where they believed even a restricted version of their services does more good than harm. The Electric Frontier Foundation has published a paper outlining how companies selling surveillance and filtering technologies can avoid assisting repressive regimes.

In March 2010, Google proceeded with its threat and shut down 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 Blog 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. As of 2017, there were news reports that Google is in talks with the Chinese government to re-enter the market. As noted in ‘Examples', Google's market re-entry is signalled by access to platforms such as Google translate.

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. 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.

Activism against the company by NGOs, consumer and governments

It could be argued that a significant amount of the foundational brand value in 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, 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 employee morale, motivation, recruitment and retention. Developing a reputation as firm that stiles freedom of expression both internally and on an external basis could also jeopardise commercial partnerships and membership in industry organisations.

Examples include:

• The Ranking Digital Rights 2017 Corporate Accountability Index ranks 22 of the world's most powerful internet, mobile and telecommunications companies on their disclosed commitments and policies that affect users' freedom of expression and privacy. The company benchmarks companies and ranks them according to their performance in a publicly available report that receives national media coverage.

Legal cases brought against the company on grounds of alleged complicity in infringements on the right to freedom of expression

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 agreed 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."

Disinvestment by or disenchantment on the part of ethical and mainstream investors

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, 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.

In 2017, for example, Facebook was questioned by shareholders about its response to cleaning up so-called ‘fake news' on the social networking site. In response to and claims that fake news affected the US election, Facebook announced in 2016 that it would flag fake news stories, collaborate with third-party fact checkers, raise awareness and ensure advertising policies do not create incentives for fake news.

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This dilemma often occurs when companies are operating in contexts where national laws and state-sponsored demands on 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 might engage in due diligence actions – for example, by introducing policies and procedures that define ways of operating in such environments in a manner which ensures respect for these basic freedoms.

The UN ‘Protect, Respect and Remedy' Framework for Business and Human Rights provides guidance on how to protect individuals and communities from corporate related human rights harm.

The framework is comprised of three key principles:

• Protect: The state duty to protect against human rights abuses by third parties, including business;
• Respect: The corporate responsibility to respect human rights; and
• Remedy: Greater access by victims to effective remedy, both judicial and non-judicial.

The framework states that in addition to complying with national laws businesses have a responsibility, in the context of the countries where they operate, to respect human rights through their own business activities and through their relationships with third parties – such as business partners and entities in their supply chains. To meet this responsibility, the framework notes that businesses should engage in human rights due diligence and specifies the main components of the process:

• Policies: Including a human rights policy containing broad commitments, supported by more detailed guidance in specific functional areas
• Impact assessment: Including assessments that explicitly reference internationally recognised human rights and are used by companies to avoid potential negative human rights impacts on an ongoing basis
• Integration: Including the embedding of respect for human rights throughout a company
• Tracking performance: Including regular updates of human rights impact and performance

The Guiding Principles for the Implementation of the UN "Protect, Respect and Remedy" Framework aim to provide "concrete and practical recommendations" about how businesses can operationalise their responsibility to respect human rights. According to the Guiding Principles, the responsibility to respect human rights requires responsible companies to:

• Implement a human rights policy
• Apply human rights due diligence
• Provide for remediation

The UNGPs apply to all States and to all business enterprises, both transnational and others, regardless of their size, sector, location, ownership and structure.

The UNGPs have experienced widespread uptake and support from both the public and private sectors, and numerous companies have publicly stated their commitment to the Guiding Principles. The UN Guiding Principles Reporting Framework is also used by companies to report on how they respect human rights.

Companies can seek specific guidance on this and other issues relating to international labour standards from the ILO Helpdesk. This aims to help company managers and workers understand the ILO approach to socially responsible labour practices and to assist in the development of good industrial relations.

In his April 2009 report to the UN Human Rights Council, 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.

In his June 2017 report to the UN Human Rights Council, David Kaye, the UN Special Rapporteur (UNSR) on the promotion and protection of the right to freedom of opinion and expression focused on the role played by private actors providing internet and telecommunications access. The UNSR set out six practices and principles for the digital access industry to operationalise its human rights commitments:

1. Due diligence

Policies: develop clear and specific criteria to identify activities that implicate freedom of expression and trigger due diligence processes

Issues to examine: Focus on local and international laws and standards, including potential conflicts between local laws and human rights; risks embedded in a company's products and services; strategies to mitigate and prevent these risks, and the limits of their effectiveness; and the potential to promote human rights throughout all operations.

Internal process and training: Ensure due diligence is a company-wide responsibility

External expertise: Draw on experts and participate in multi-stakeholder fora such as the GNI and TID

Consultation of users and affected rightsholders: Includes meaningful consultation of end-users and civil society

Ongoing dynamic assessments: Repeat risk assessments at regular intervals through life cycle of product or service

2. Incorporating human rights safeguards by design

Design and engineering choices should be guided by respect for human rights

Companies should take an active role in developing expression and privacy enhancing measures

3. Stakeholder engagement

Companies should push governments to include human rights safeguards in operating licensese and sales contracts, including assurances that network equipment will not be modified or accessed without their knowledge

Arrangements with business partners (subsidiaries, joint ventures, suppliers, distributors) should enable all parties to uphold human rights responsibilities

Collaborate on joint outreach, advocacy, regional or international bodies, industry associations

4. Mitigation strategies

Ensure requests for content restriction and customer data are in strict compliance with local law and international standards. Require that requests are made in writing, with an explanation of the legal basis and authorisation from impartial courts or adjudicatory body.

Interpret the scope of government requests and laws by resolving any legal ambiguity in favour of respect for freedom of expression and privacy. Interpret requests in a manner that ensures the least restriction on content and access to customer data

Challenge requests and underlying laws: Explore all legal options to challenge requests that are excessively intrusive, such as shutdowns of entire services or platforms and the decision to bring legal proceedings should be dominated by the potential risk and benefit to human rights e.g. pursuing the case if it might be successful but is very costly, but using alternative options if it might cause a backlash.

5. Transparency

Companies should be transparent about their response to government requests for access and information. Disclosures should be regular, ongoing and accessible to the maximum extent allowed by law; where restrictions in local law limit transparency, companies should be innovate in finding ways to provide the maximum transparency possible;

Companies should disclose policies and actions that implicate freedom of expression, such as data retention and use policies, network management practise and the sale and purchase of network filtering and interception technologies.

6. Effective remedies

States have the primary duty to remediate business-related human rights abuses, particularly those they instigate, but companies should provide for or cooperate in their remediation through legitimate processes

Remedies can be financial and non-financial – appropriate remedies for the impairment of freedom of expression includes access to grievance mechanisms and information about the violation and guarantees of non-repetition. Users may want the satisfaction of being heard.

Pre-existing policies and mechanisms could also be reformed or strengthened to address violations, for example, improving content restriction policies or training teams.

Specific actions for responsible business might include:

1. Policies and practices

Companies at particular risk of negatively impacting the right to freedom of opinion, speech and expression may consider adopting a detailed human rights policy on this topic. Such a policy may outline how the company will 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:

• Comply with national law with regard to freedom of opinion, speech and expression (at a minimum) or adhere to international standards and industry best practice; whichever best protects these freedoms should be the aspiration
• Employ rigorous procedures when responding to government requests for information, maintaining a commitment to user privacy and freedom of opinion, speech and expression
• Maintain transparency and openness with regard to any content restrictions that the company has implemented (i.e. informing users when and why content has been restricted)
• If there really is no alternative, comply with national law or government requirements to restrict or censor information in such a way that the impact on the right to freedom of opinion, speech and expression is minimised

In order to embed such policy commitments into the way the company conducts its business, it will be important to provide effective communication of the policy and associated guidance to other interested stakeholders where appropriate, including host governments. The company might identify key performance indicators against the implementation of the policy, including once this has been tested against real situations in which government demands or national laws undermine the right to freedom of expression.

Performance indicators could also relate to transparency, revolving around public disclosures about restrictions on access to information. In 2010, for example, Google announced on its Official Google Blog 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 Open Net Initiative (ONI) is a collaborative partnership of four leading academic institutions (University of Toronto, Harvard University, University of Cambridge and Oxford University). It aims to investigate, expose and analyse internet filtering and surveillance practices in a credible and non-partisan fashion. It aims to uncover the potential pitfalls and unintended consequences of these practices to inform better public policy and advocacy work in this area.

The Global Network Initiative (GNI) Principles and Implementation Guidelines provide useful guidance 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 such 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."

2. Define procedures for government engagement

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 this may expose the company to the risk of complicity in human rights violations.

When engaging with host governments on the issue of information sharing and censorship, principles to keep in mind include:

• Engage the government privately to ensure that it follows established domestic legal processes when seeking to restrict freedom of expression
• Interpret government restrictions in a manner that minimises the negative effect on freedom of expression
• Strive to achieve maximum transparency to the user/customer so they are aware of risks to their freedoms
• Seek clarification or concessions from authorised officials when demands appear to conflict with the company policy, as well as domestic law and/or international standards
• Request clear written communications from the government that explain the legal basis for government restrictions to freedom of expression, including the name of the requesting government entity and the name, title and signature of the authorised official
• Where possible, encourage government partners to be specific, transparent and consistent (including with international laws and standards) in its demands, laws and regulations that relate to freedom of opinion, speech and expression

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.

Many companies now publish annual transparency reports about the requests they receive from governments to access data. This is a key practice promoted by members of the Telecommunications Industry Dialogue (TID), a group of telecommunications operators and vendors who jointly address freedom of expression and privacy rights in the telecommunications sector in the context of the UN Guiding Principles on Business and Human Rights. In 2013, the TID published their Guiding Principles which inform members' interactions with external stakeholders on matters that can impact the rights to privacy and freedom of expression. These include the following:

• Principle 3 requires members to follow best practice in addressing government requests that impact privacy and freedom of expression by 1) ensuring demands are reviewed by qualified and experienced personnel to assess their compliance with legal and due process and 2) establish in advance guidance on how to interpret government demands as specifically as possible
• Principle 4 requires members to adopt strategies to anticipate, respond and minimise human rights impacts following such government requests, including for example, reviewing the demand with the relevant authority or seeking judicial review.
• Principle 8 requires members to report externally on an annual basis on their progress in implementing the principles.

3. Engage peers and stakeholders to generate learning

Companies may consider engaging other businesses operating in the same countries, as well as experts, human rights organisations, academics, journalists and local communities to generate fruitful discussions and solutions Collaboration is geared towards 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 by 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 concrete instances where there have been demands to impose restrictions on the freedom of expression, as well as approaches to collaboration with law enforcement agencies in multiple locations around the world.

In 2017, the TID and GNI have joined forces to advance freedom of expression and privacy. This collaboration will bring together the major ICT companies and give them a stronger voice in addressing human rights challenges from states.

4. Human rights impact assessments

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 undermine the right to freedom of opinion, speech and expression.

Human rights impact assessments may not always be necessary. However, these undertakings can be helpful for discerning the baseline situation in an operating context where the information regarding human rights protection is incomplete. Human rights impact assessments can reveal the protection levels afforded by the state as well as policies implemented by companies in a similar situation. By revealing the contours of the working environment, predictions can be made about possible human rights impacts and associated risks to the local population, company and end users that may arise from investment or enhanced business activity.

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 those of the International Finance Corporation (IFC) and UN Global Compact, as well as the International Business Leaders Forum's, Guide to Human Rights Impact Assessment and Management and the GNI's Implementation Guidelines (and public reporting on assessments done by Facebook, Google, LinkedIn, Microsoft and Yahoo).

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. The assessment can help companies identify circumstances where freedom of expression or privacy may be jeopardised or is already compromised, and to develop appropriate risk mitigation strategies that will enable the company to uphold its duty to respect this human right – as outlined in the "Protect, Respect and Remedy" policy framework.

An HRIA may include an assessment of both the external impacts (the operating context) and internal dynamics that corporate activity might have on the panoply of human rights. 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 could consider and communicate the extent to which it will support employees in such circumstances.

Yahoo! has publicly committed to conducting HRIAs in order to understand the human rights implications of its business decisions. The assessments will include:

• The general human rights landscape, with a focus on rule of law, free expression and privacy
• Local laws about free expression and privacy
• Yahoo!'s business and product plans for entry into the market
• Risk scenarios based on its products and operations
• Proposed strategies for mitigating those risks
• Recommendations to protect and promote privacy and free expression

5. Provide human rights training to staff

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 who are most likely to face freedom of expression and privacy challenges as determined through impact assessments and other due diligence preventative measures. With this in mind, training could be geared towards middle managers, as well as employees who have direct responsibility for company and user-generated content.

If provided, training might seek to foster an understanding of:

• The human rights standards that are required of them, with particular reference to company policies and procedures regarding freedom of opinion, speech and expression
• The potential legal and commercial consequences, as well as other potentially associated risks, of illegitimate censorship and restrictions
• The common scenarios in which abuses might take place and the types of checks and procedures that an employee may apply to mitigate any risk of complicity
• Local legislation, as well as legitimate and illegitimate restrictions on freedom of opinion, speech and expression that a host government may seek to apply
• The results of any human rights impact assessments or other due diligence measures, providing a clear view of the potential risks and impacts that the company faces
• The procedures, as defined by the company, that the employee is expected to adhere to following government demands to perform actions that may infringe upon the right to freedom of opinion, speech and expression

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The legal parameters

Freedom of opinion, speech and expression is upheld in the International Covenant on Civil and Political Rights (ICCPR) (adopted 16 December 1966, entered into force 23 March 1976) and the Universal Declaration of Human Rights (1948). 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."

Freedom of speech and expression is not absolute. General Comment 34 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 restrictions adopted in order to maintain the respect of rights or reputations of others. As a consequence, the freedom of expression may be derogated in order to protect:

• National security - a situation where the political independence of a country or its sovereign territory is under threat (e.g. prohibitions on publishing classified intelligence documents)
• Public order - the rules of a country that ensure the peaceful and effective functioning of society (e.g. a prohibition on speeches that incite hatred are likely to provoke riots )
• Public health (e.g. a ban or restriction of the advertising of tobacco products)
• Public morals (e.g. an imposition of a television watershed)

On 20 April 2010, for example, Google announced on its Official Google Blog 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." 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."

Restrictions on free speech

Despite guarantees in international law, freedom of opinion, speech and expression is poorly protected in a wide range of countries. Reporters Without Borders' (RSF) ‘World Press Freedom Index 20017' shows that the press is most restricted in North Korea, Eritrea, Turkmenistan, Syria, and China.

Restrictions in these countries often emanate from political or ideological dissention and involve direct government control of the media and heavy censorship, as well as grave legal and criminal punishments attached to violations. There have been many reports of ICT, media and internet companies being 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 2017, 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:

Figure 1: 10 highest risk countries for freedom of opinion and expression

North Korea	Uzbekistan
Vietnam	Iran
Cuba	Turkmenistan
Eritrea	Equatorial Guinea
China	Kuwait

Human rights at risk

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. For example, a company could restrict the freedom of assembly of local communities and other stakeholders during demonstrations about their activities by deploying aggressive security forces to defuse the situation. A company could also prohibit its employees from taking part in political protests.

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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