Aligning Regulations of Business Conduct in the Technology Sector with Human Rights

Concerns regarding the human rights impact of business conduct in the technology sector are not new – whether related to the dissemination of illegal content via online platforms, data collection or online surveillance.

While there is agreement about the need to better regulate technology company conduct, it remains essential to place international human rights law (IHRL) at the centre of regulatory and policy frameworks.

The United Nations (UN) Guiding Principles on Business and Human Rights (UNGPs) provide important guidance to policymakers on ensuring that their regulatory efforts align with a human rights-based approach and IHRL.

A new Research Brief by the Geneva Academy and the Office of the UN High Commissioner for Human Rights (OHCHR) B-Tech project on Regulating Business Conduct in the Technology Sector: Gaps and Ways Forward in Applying the UNGPs depicts the prominent gaps in regulatory approaches to business conduct in the technology sector with regard to the UNGPs. Further, the research brief suggests how such alignment could be improved and sketches ongoing conceptual work by the OHCHR B-Tech project on engaging with policymakers for enhanced uptake of the UNGPs in technology regulation.

Written by our Senior Research Fellow Dr Ana Beduschi and by Dr Isabel Ebert, Adviser to the OHCHR B-Tech Project and Senior Research Fellow at the Institute for Business Ethics at the University of St. Gallen, it draws on our research project on disruptive technologies and rights-based resilience – funded by the Geneva Science-Policy Interface and conducted in partnership with OHCHR B-Tech Project.

The publication starts by identifying the prominent gaps in UNGPs' alignment in regulatory efforts and their subsequent risks for human rights.

‘Our research highlights that existing regulatory efforts on technology company conduct show a mixed picture with regards to their alignment with the UNGPs’ underlines Dr Beduschi.

Gaps include a narrow view of human rights, the inconsistent use of human rights due diligence terminology, a narrow scope on a tier in the value chain, a lack of accompanying measures and enforcement mechanisms, a prescriptive list of non-permissible activities or a focus on protected artifacts, the absence of a ‘balancing test’, and the lack of clear provisions for access to remedy.

The Research Brief proposes concrete recommendations on how regulatory processes could be better aligned with the UNGPs. Further, the research brief presents ongoing work by the OHCHR B-Tech Project in developing a guidance tool to inform policymakers on the policy and design choices when regulating technology company conduct in a manner which is consistent with the UNGPs.

‘A UNGPs-based approach to regulation ensures the development of a coherent regulatory landscape that is aligned with international human rights standards. This is key to avoid negative human rights impacts related to technology company conduct’ underlines Dr Ebert.

The publication also sketches three essential building blocks – or phases – for policymakers when regulating technology company conduct:

1. Defining the ‘objective’ by a sound identification of the ‘problem’ that the regulatory effort is trying to solve and what constitutes the regulatory gap.
2. Discussing and weighing the possible policy choices, bearing in mind the earlier mentioned mix of regulatory and voluntary measures available.
3. Transposing the choices made in the two previous steps into design elements.

‘A strong stakeholder engagement along all stages of the regulatory development process is vital to the success of the process. Our cooperation with the Geneva Academy has supported our project in bringing this important message across to key stakeholders’ says Lene Wendland, Chief of Business and Human Rights at OHCHR.

‘As highlighted by the recent adoption of the EU Digital Services Act, many governments are currently developing regulations on this issue. This publication will be of use to policy-makers working on such regulations, both regarding their content but also regarding the process leading to their adoption’ explains Felix Kirchmeier, Manager of Policy Studies at the Geneva Academy.