Yuval Shany (Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology; Israel Democracy Institute) has posted Big-Tech Companies’ Obligations Under International Human Rights Law (Israel Law Review, volume 57 (forthcoming in 2024) on SSRN. Here is the abstract:
This article critically evaluates three attempts to overcome the problem of fit between international human rights law (IHRL) and the digital ecosystem, through an expansion of the existing IHRL framework to big-tech companies. The attempted expansions considered here include standard-setting initiatives involving the imposition on states and companies – large technology companies and other business enterprises – of certain duties to apply IHRL in connection with potentially right-infringing business practices. As I discuss below, most of the duties identified and/or developed in this regard within the context of the UN Human Rights Council’s Business and Human Rights (BHR) agenda constitute soft law for the time being. Negotiations for a Legally Binding Instrument (LBI) designed to strengthen the applicable legal framework are ongoing, but their prospects of success remain unclear. Another attempted expansion involves self-regulation by big-tech companies through corporate policies aimed at incorporating certain IHRL norms into their business practices. The efforts of Meta to incorporate IHRL into its corporate policies and to offer an IHRL grievance mechanism through the operation of the Meta Oversight Body (MOB)(focusing mostly on protecting freedom of expression, as articulated in the International Covenant on Civil and Political Rights ICCPR) represent a key case study in this regard. A third attempt to deal with the aforementioned problem of fit I consider below involves efforts by special procedures of the Human Rights Council (HRC) to exercise their standard setting and monitoring functions in connection with the practices of large technology companies. The work of the Special Rapporteur for Freedom of Opinion and Expression in this area is particularly noteworthy. These three examples of expansion attempts provide useful insights about the potential of IHRL to serve as a legal framework to govern the operations of large technology companies, as well as about the limits of its potential.
Part One of the article discusses recent developments in the BHR agenda, including efforts to conclude an LBI. The extent to which this agenda represents a promising avenue for holding large technology companies accountable to IHRL norms is considered mostly in Parts Two and Three, which discuss two normative initiatives that largely derive from the BHR Agenda: Part Two deals specifically with Meta’s espousal of IHRL as part of its corporate BHR policy, and Part three considers attempts by HRC special procedures to apply IHRL to technology companies. Part Four concludes.
