Open Society Justice Initiative v. Telekom Austria
Telekom Austria, the parent company of A1 Belarus, sporadically shut off access to their mobile internet networks in Belarus from August to the end of November 2020 in the aftermath of the country’s contested and highly irregular presidential elections. The internet shutdowns in Belarus, ordered by Alexander Lukashenko’s government, were used as a tool of repression to stifle dissent and facilitated the occurrence of other human rights violations.
Facts
The internet shutdowns in Belarus from August 9 to December 12, 2020, were ordered by the Belarussian government to silence dissenting and opposition voices, control information, and curb freedom of expression, association and assembly during a period marked by post-election protests. Even though the shutdown orders were a clear violation of international human rights law, A1 Belarus shut off access to their mobile internet services on numerous occasions until the end of November 2020. As a result of the internet shutdowns, and Telekom Austria’s contribution to them, the freedom of expression of millions of Belarusians was severely violated, as the population was deprived of the right to disseminate, receive, and store complete, reliable, and timely information, especially on the protests and brutal rights violations. This prevented citizens from holding assemblies, rallies, street marches, and demonstrations.
When the Belarussian government introduced legislation in May and July 2021 to strengthen its ability to order broad internet outages in the interests of “national security,” A1—which has a share of roughly 42% of Belarus’ mobile market—did not use its leverage to influence this legislation, nor did it take any clear and strong measures in line with the OECD Guidelines to uphold the rights and freedoms of its subscribers.
On March 16, 2022, the Open Society Justice Initiative submitted a complaint before the OECD concerning Telekom Austria’s contribution to Belarus’ internet shutdowns, which contravened its responsibilities under the OECD Guidelines for Multinational Enterprises, particularly concerning human rights due diligence.
Legal Background
Internet shutdowns are considered a human rights violation under international law. In the advent of technology as a vital tool for autocratic governments to retain power, technology companies are moving to the center of governance structures without being bound by the same transparency requirements and accountability mechanisms as democratically elected governments. The OECD Guidelines are one of the key tools outlining corporate responsibility regarding human rights due diligence.
Proceedings
The Justice Initiative filed a complaint with the OECD National Contact Point (NCP) in Austria, where A1 Belarus’ parent company, Telekom Austria, is headquartered. The complaint is now under the NCP’s review to determine whether a breach of the OECD Guidelines has taken place. If the complaint passes the initial assessment, the NCP may use its good offices to facilitate a mediation process in order to find solutions to the issues presented, provided the parties agree to it. At the end of the process, the NCP may issue a report, upon successful mediation, or a public statement, if an agreement between parties is not achieved.
Arguments
Lack of respect for internationally recognized human rights
Telekom Austria violated Chapters II.A.2 and IV.1 of the OECD Guidelines, which set out enterprises’ responsibility to respect the internationally recognized human rights of those affected by their activities. Through its contribution to the shutdowns, Telekom Austria violated freedom of expression and freedom of assembly and association. Problematically, the company’s human rights policy explicitly states that, in the event of a conflict between commitment to human rights and national law, it applies national law. This is particularly concerning in jurisdictions, such as Belarus, where domestic regulations are not aligned with international human rights law.
Inadequate due diligence
Telekom Austria failed to adhere to the due diligence requirements set out in Chapters II.A.10 and IV.5 of the OECD Guidelines, which place a responsibility on enterprises to carry out risk-based due diligence to identify, prevent, and mitigate actual and potential adverse impacts. Telekom Austria did not consider the human rights situation in Belarus when it began operations in the country and failed to implement adequate human rights due diligence processes.
Failure to avoid contribution to adverse impact and to prevent or mitigate them
Through the repeated and foreseeable technological involvement of A1 Belarus in the shutdowns, Telekom Austria is in violation of Chapters II.A.11 and IV.2 of the OECD Guidelines, which place a responsibility on enterprises to avoid causing or contributing to adverse human rights impacts and to address such impacts when they occur. Despite A1 Belarus’ high level of commercial and technological leverage, neither A1 Belarus, nor its parent company, took any meaningful public-facing steps to avoid contributing to the internet shutdowns, swiftly condemn the shutdowns, or prevent or mitigate their impact. The lack of change in Telekom Austria’s business activities or company policy on the prevention and mitigation of adverse impacts on human rights is striking, especially in the context of the 2021 legislative change that expanded shutdown powers in Belarus.
Failure to effectively engage with stakeholders
By failing to effectively consult with relevant stakeholders in relation to planning and decision-making regarding activities that may significantly impact local communities, Telekom Austria is in violation of Chapter II.A.14 the OECD Guidelines. Numerous international NGOs and other affected groups have reached out to Telekom Austria to engage in dialogue about the shutdown and how future human rights violations of that nature can be mitigated or avoided. However, the company has denied responsibility for human rights violations, placing the blame fully on the Belarusian government.
Failure to remediate adverse impacts
Telekom Austria is in violation of Chapter IV.6 of the OECD Guidelines, which places a responsibility on enterprises to remediate adverse human rights impacts where they have caused or contributed to these impacts. While Telekom Austria provided some financial compensation to its subscribers for the contractual impact of the shutdowns, remedies failed to provide compensation for violations of fundamental human rights. According to the Guidelines, to remedy such violations, Telekom Austria should have meaningfully engaged with relevant stakeholders and affected communities and established effective operational-level grievance mechanisms for affected communities, as well as used its leverage to encourage remedy of any remaining impacts which the enterprise could not address by itself and ensure non-repetition.
Improper involvement in local political activities
Through the business activity of A1 Belarus, Telekom Austria failed to comply with Chapter II.A.15 of the OECD Guidelines, which asks enterprises to abstain from improper involvement in local political activities. By following the orders of the Belarussian government to shut down the internet, Telekom Austria accepted to be in its service at the time of a political crisis that manifested in a crackdown on political dissidents and protestors and multiple human rights violations.
Insufficient disclosure policies
Telekom Austria violated Chapters III.2.f, III.3.b and III.3.c of the OECD Guidelines which set out enterprises’ responsibility regarding accurate and timely non-financial disclosure. Telekom Austria failed to disclose their activities in Belarus and their business relationship with the Belarussian government as a heightened human rights risk factor and communicate information about its performance in relation to human rights policies. In their regular reporting, Telekom Austria did not report on specific risks arising out of commercial activity in countries with problematic human rights records, such as Belarus.
Failure to promote internet freedom through respect of freedom of expression, assembly, and association online
Through the business activity of A1 Belarus, Telekom Austria violated OECD Guidelines’ Chapter II.B.1, which encourages enterprises to support cooperative efforts in the appropriate fora to promote Internet Freedom through respect of freedom of expression, assembly, and association online. Despite A1 Belarus’ control over the mobile internet in Belarus, Telekom Austria did not exercise its leverage to prevent and/or mitigate the impact of the internet shutdowns.
Request for Remedies
The Justice Initiative has requested that the Austrian NCP facilitate a mediation process between Telekom Austria and the Justice Initiative to discuss remediating measures that can be taken with regards to the 2020 internet shutdowns in Belarus and to ensure the company will not facilitate, cause, or contribute to future human rights violations through internet shutdowns.
Some of the remedies sought by the Justice Initiative include ensuring that Telekom Austria and its subsidiaries developing adequate human rights due diligence policies, particularly concerning the risks of government-ordered internet shutdowns; using their leverage to improve domestic, regional, and international frameworks on internet freedom; establishing a network and fund of technology companies to promote internet freedom and address the challenges emerging in authoritarian systems; and establishing an operational grievance system for affected people to apply for remedies, in cooperation with affected communities and relevant stakeholders, as well as a fund for the work of Belarusian diaspora groups to monitor and promote internet freedom.
