As a business and human rights scholar, I often argue that we need to regulate and limit transnational corporate power. My focus is on multinational enterprises, typically headquartered in the West, and abusing environmental and human rights in the Global South. As I write, two of these cases are pending: one in front of the US Supreme Court against Nestlé and Cargill on child slavery in the Ivory Coast, and one in front of the UK Supreme Court against Shell on environmental degradation in Nigeria.
While the topic has gained relevance in recent years, it is often treated at the margins of globalization by public opinion. Two of the main counter-arguments put forward against the business and human rights agenda include: corporations may self-regulate, as corporate social responsibility is good enough to prevent human rights abuses; and corporations must follow the rules of the state(s) where they operate; thus, if some countries do not properly enforce human rights within their territories, it is not a corporate, but, rather, a state problem.
After the 6th of January, however, everything changed. When Twitter and Facebook indefinitely banned President Trump, even centre-right politicians, such as Chancellor Angela Merkel, said that this was too much. Interestingly, whether or not one believes that social media should have banned President Trump, the question of regulating corporate power becomes central: those who are against the ban argue that we should regulate companies so that they secure freedom of speech; those who are in favour of the ban argue that the laws regulating social media should have prevented President Trump from inciting violence during his whole presidency.
Finally, public opinion seems to acknowledge numerous tedious questions on corporate power that are well-known to business and human rights scholars and practitioners.
First, can corporations self-regulate, or do we need laws regulating corporate behaviour as it pertains to human rights? In other words, on what bases can private platforms silence the President of the United States? From the justification posted on Facebook, the argument seems to be based on “incitement of violence.” But then, as many have argued recently, the question is why would social media ban this incitement of violence and not many others? Take, for example, the tweets of Ayatollah Ali Khamenei of Iran on Israel, or of President Duterte of the Philippines who, according to a recent UN Human Rights Council report, may have incited violence against drug-addicted persons. By simple comparison, the benchmark of violence against which social media should ban an account seems doubtful, to say the least.
Second, how can one apply the laws of various countries to transnational corporations? Companies are not a private space free from any rule. They must follow the laws of the countries where they operate. This, however, opens a complex scenario of private international law: how do we assess which rule is applicable to which post or tweet? For example, in Italy, a few laws prevent people from perpetrating fascist ideologies. The US includes no such crimes in its juridical system. If a US citizen from Boston posts fascist propaganda that leads to an illegal fascist demonstration in Rome, should Facebook ban the post?
Third, is it legitimate to have such diverse legal regimes applicable to the same company operating across countries? For instance, in 2010 Google left China due to the government’s censorship. The debate over the relationship between China and Google has been lively and ongoing for over a decade. China notoriously blocks Facebook because freedom of speech is controlled by the state, but, since the 7th of January, in the US, it is Facebook that has banned the President from posting. Do we live in a world where states control or are controlled by corporations? This raises yet another set of questions that are familiar to business and human rights: the division between the private and the public spheres and the responsibility of each domain.
In a nutshell, this debate is not new. It has simply become more relevant to the lives of political leaders. If this can help raising the right questions about regulating corporate power, it is good news.