Part I: What do social media platforms and the Russian company Nornickel have in common? In search of a form of international liability for legal persons. [Opinion]

PART I

How do Donald Trump’s banishment from social media, the removal of Syrian war videos, and a major leak of diesel oil within the Arctic fit together? Those acts might trigger the international responsibility of legal persons, including social media platforms (“SMPs”) and the Russian company Nornickel. Furthermore, both areas lack international regulations, even though they are issues of international concern by nature. 

In Part I of this article, we will observe the international responsibility of legal persons within the realms of social media and the environment, with a particular focus on the suspension of Trump’s social media accounts, the removal of videos documenting the violence in Syria, and the poisoning of the Arctic. We will also discuss why these issues should be addressed at an international level within a legal framework that encompasses both social media and the environment.

Part II examines the potential of international oversight mechanisms.

Trump’s banishment from social media and the removal of Syrian war videos

In January this year, Facebook, Instagram, Twitter, YouTube, Snapchat, and Reddit, among others, decided to suspend former U.S. president Donald Trump’s social media accounts, considering how his online content was promoting hate and inciting violence. These SMPs took action to silence Trump after he allegedly provoked his supporters to storm the U.S. Capitol in Washington, D.C. For years, SMPs were called upon to intervene, to stop Trump from spreading fake news, inflammatory speech and conspiracy theories. The storming of the U.S. Capitol on the 6th of January 2021 was the straw that broke the camel’s back.

Why do SMPs react now? As far back as 2015, Trump’s posts repeatedly amounted to hate speech, but SMPs have been reluctant to act. For example, in July 2019, Trump tweeted about the four U.S. congresswomen, which he referred to as the “The Squad” (Ilhan Omar, Rashida Tlaib, Ayanna Pressley, and Alexandria Ocasio-Cortez) the following: “Why don’t they go back and help fix the totally broken and crime infested places from which they came.” This was a clear violation of Twitter’s content moderation policies. Yet, Twitter did not remove Trump’s tweet.

The suspension of Trump’s social media accounts is an example of content moderation, which is the process of screening, reviewing and approving/removing online content. SMPs’ content moderation decisions can occur in varying degrees, from warning labels to removal of content or accounts, and are not only used to target prominent persons like Trump. For instance, YouTube removed videos of the violence in Syria shared by journalist Eliot Higgins. These videos were labelled as terrorist content and therefore made unavailable. The issue of removal of videos which could be used as evidence in criminal investigations has also been highlighted by the Syrian Archive, an open-source platform that aims to document human rights violations committed in Syria. The Archive has reinstated more than 650.000 records that have been taken down from social media.

Isn’t it odd that SMPs have the power and authority to decide whether social media content is considered hate speech or terrorist propaganda? SMPs are private companies whose sole purpose is to make a profit. They do not pursue the public interest and are not accountable to society. Still, through their content moderation policies, they exercise a de facto power of censorship over social media communication on their platforms, thereby impacting their users’ right to freedom of opinion and expression. It is time to turn the tide in this field. A thorough reform is needed at the international level, providing an appropriate legal framework for SMPs, together with a mechanism to enforce it.

The poisoning of the Arctic

In May 2019 a defective fuel tank in the Norilsk-Taimyr Power Plant in Siberia leaked approximately 20.000 tons of diesel-oil into the waterways and the soil of the fragile ecosystem of the Arctic, turning the waters bright red. It is believed that a leak of this magnitude is the biggest diesel-oil spill in history. This spill has devastating effects not only on flora and fauna, but also on the local inhabitants as well. The plant in question is part of the consortium of the Russian company Nornickel, which is the world’s leading producer of nickel and palladium. Even though the parent company Nornickel blamed the thawing permafrost as the reason for the leak, it was uncovered that it was actually caused by corrosion and deliberate non-maintenance of the tank over years. What’s worse, the spill was not reported to government authorities until two days later, delaying the necessary counter-measures.

In many ways the incident can be compared to the infamous Exxon Valdez disaster, widely recognized today as an internationally relevant environmental crime. Back in 1989, the oil tanker “Exxon Valdez” spilled roughly 14.000 tons of crude oil into the Prince William Sound in Alaska. In contrast, the recent Norilsk spill involved thinner, less gloopy diesel oil in freshwater, making clean-up operations even more difficult compared to crude-oil that sits on the water surface. The flora and fauna of the Alaskan Prince William sound has not fully recovered from the incident. Further complicating matters in the Norilsk spill, decades of mining and smelting have made the area around Norilsk already one of the most polluted places on Earth. The fuel spill represents a calamitous addition to a long history of ruthless environmental degradation and exploitation in this area. The ongoing clean-up operations will last for decades.

The Norilsk incident led to the declaration of a state of emergency in the region, a criminal investigation over pollution and negligence including several pre-trial arrests. In February 2021 a Russian court ordered Nornickel to pay about 2 billion USD for environmental damages (whereas the company estimates the environmental damages around 300 million USD). However, these efforts are not enough. In the light of an environmental disaster of this international magnitude, it is not up to states alone to decide on the measures and penalties. A monetary penalty and the clean-up costs are a mere drop in the bucket, as the actual environmental damages are often much higher than the amounts paid by the companies responsible. In fact, those payments are often factored in when it comes to environmentally-sensitive corporate operations.

International relevance of SMPs’ content moderation

SMPs are globally operating companies, which have premises in many parts of the world and whose platforms are used in almost every single country. In addition, their decisions to moderate social media content can have an impact on every single user (e.g. removal of videos made by journalist Higgins). That is why there are more and more calls by the international community for the adoption of an international regulation for SMPs’ content moderation.

In other words, such a legal framework is still missing at the international level. As a result, self-regulation is the norm. SMPs have created their own regulations, the so-called “community standards” which decide what content is allowed on their platforms (e.g. Facebook’s Guidelines for the Community). Since these standards are made by SMPs and not by a democratically elected body, they have been criticized for their lack of democratic legitimacy. 

Another issue is transparency. We do not know what content is removed from their digital platforms, how it is removed, and why. SMPs keep their community standards and the way they are enforced hidden. How can we hold SMPs accountable if the rules they use remain secret? These problems related to community standards show that self-regulation may not be the best way to govern the content moderation practice of SMPs.

What could then be an appropriate alternative to community standards? The principal document that exists in the domain of business and human rights is the “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework” (“UNGPs”). This document is a set of guidelines for states and business enterprises to prevent, address and remedy human rights abuses committed in business operations. The second pillar of the UNGPs, namely the corporate responsibility to respect human rights, is addressed to all business enterprises, including SMPs. It contains a number of important responsibilities like avoiding contributing to adverse human rights impacts through their own activities (principle 13) and carrying out human rights due diligence (principle 17). However, the UNGPs are just a standard of expected conduct for business enterprises. It does not include legally binding obligations, only “responsibilities.” 

This is not unexpected since the field of international human rights law (“IHRL”) has traditionally had a state-centric approach. States are the principal duty bearers, while companies like SMPs have no direct legal obligations under IHRL. The same is true for the work of the open-ended intergovernmental working group, which is mandated by the UN Human Rights Council, and which is working on the adoption of an internationally legally binding treaty based on the UNGPs, the so-called “Business and Human Rights Treaty”. Again, only responsibilities are foreseen for business enterprises. The attempt to include obligations for companies in the Business and Human Rights Treaty did not succeed. 

At the regional level, developments in this field are also taking place. For example, the European Commission adopted in December last year the “Digital Services Act,” which will seriously improve the mechanisms for removal of illegal content and the protection of users’ fundamental rights online. It still needs to be approved by the European Parliament and the EU Member States, but it is a big step forward. As described above, SMPs are transnational companies whose decisions can have an effect on each and every social media user. Therefore, SMPs’ content moderation should not be regulated at the European level alone. An international legal framework must be established in this field. However, such initiatives like the Digital Services Act have not been launched at the international level yet.

International relevance of environmental harm

Similar to the sphere of SMPs, the environment spans a global net of interrelated ecosystems. Widespread environmental harm or the degradation of ecosystems is inherently transboundary/global. The most vivid example in this regard is climate change. The emission of industrial CO2 in Europe leads to thawing permafrost in Siberia. This in turn accelerates the release of climate gases into the atmosphere fuelling the melting of the polar ice caps, which results in the sinking of whole island nations in the Pacific. This is just one example of the interconnectedness of the world’s ecosystems, which is one planetary ecosystem. This system is brought out of balance by human activity. Corporate entities are fuelling this vicious circle through improper and unsustainable handling of the environment.

The international relevance can further be highlighted by the involvement of state entities. Again, an oil spill marked an example for this interweaving of politics in transboundary environmental harm. In early February 2021, an oil spill hit along the coast of Palestine and Lebanon, which led to an ecological disaster. The spill is believed to be caused by a passing tanker Emerald. This ship was registered by Emerald Marine Ltd., a company based in the Marshall Islands, so far for international corporate involvement. The political dimensions span from the fact that the tanker is believed to have carried crude oil from Iran to Syria. The Israeli Environmental Protection Minister Gila Gamliel claims that Iran is behind this damage to the Israeli environment. The spill even raised the claim of “eco-terrorism” by Israeli officials. In this case, “eco-terrorism” can be described as the use of environmental conditions to inflict harm on a country and its inhabitants. 

Corporate entities such as Nornickel and Emerald Marine Ltd. are private companies whose sole purpose is to generate profit. These companies do not act in the interest of the public and have accountability neither to the societies of their home states nor to society at large. Still, those companies continue to exploit the natural resources at the expense of all. The Norilsk incident is yet another prime example of a transnational company that exerts influence in different parts of the world. Nornickel has not only corporate ties in the Russian Federation, but has also operational divisions in, among others, Finland, Australia, and South Africa. Furthermore, the scale of these incidents does make an international approach necessary. The contamination of the rivers around Norilsk could spread all the way to the Arctic Ocean. The location of the spill site within the fragile permafrost region with its importance to combat global climate change is another indicator of the international relevance of this type of incident.

Although the Norilsk incident is considered an international environmental crime, acts like these do not currently have a standing on the international level. A commonly agreed international framework governing this delicate area of international criminality is absent. In fact, there is not even an agreement upon a definition of ecocide nor of international environmental crimes in general. Polly Higgins suggests defining ecocide as follows: “the extensive damage to, destruction of or loss of ecosystems(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.” In this sense ecocide represents the most heinous of all international environmental crimes. Within the course of this year a newly founded expert panel is set to propose a clear and legally robust definition for an amendment of the Rome Statute of the International Criminal Court (“ICC”).

Without a clear mandate for international environmental crimes or ecocide, the ICC’s office of the Prosecutor has issued a policy paper on case selection and prioritisation in 2016. This paper announced that the ICC will focus more closely on prosecuting environmental damage, illegal natural resource exploitation and land-grabbing committed in context of the existing crimes under the Rome Statute of the ICC. Although this statement sent a strong message to all ICC member states and beyond, the status quo has not changed much since then.

In the light of the aforesaid, Part I illustrates that it is of utmost importance to introduce an international legal framework to address the problems related to SMPs’ self-regulation and the issues of international environmental harm. Besides the adoption of a regulation at the international level, an international oversight mechanism should be installed. This will be examined next week in Part II.

This article was written by Eline Labey and David Krott. 

Eline Labey is a PhD candidate at the Vrije Universiteit Brussel (VUB), specializing in international criminal law and international human rights law. She earned her LLM in international law from the University of Cambridge.

David Krott works as a research assistant at the FH Aachen (Germany) and is a PhD candidate at the VUB, specialising in international environmental criminal law. He earned his LLM from the University of Otago.

 

Eline Labey

Eline Labey is a PhD student at the Vrije Universiteit Brussel (VUB), specializing in international criminal laws and international human rights law. She earned her LLM in International law from the University of Cambridge.