Human rights impact assessment in Myanmar: Facebook’s anodyne report

Facebook commissioned a human rights impact assessment into its presence in Myanmar by Business for Social Responsibility (BSR), which has recently released its report. While news outlets reported this as a mea culpa by Facebook regarding the use of its platform in contributing to atrocities in Myanmar – perhaps partly due to the product policy manager’s note in disseminating the report – reading the report and its findings presents a different picture.

Scrutiny of Facebook by the UN FFM report

The role of Facebook in furthering the commission of mass atrocities in Myanmar has been scrutinized by the UN Independent International Fact-Finding Mission on Myanmar (FFM). In its final report issued in September 2018, the FFM found that Facebook was an introduction to the internet for mostly first-time internet users in Myanmar. The FFM report referred to significant problems in curbing hate speech on Facebook, including the lack of awareness of community standards, technical issues (such as incompatibility of local language fonts), as well as insufficient content moderators. In the section dedicated to Facebook and social media in Myanmar, the FFM report went into detail regarding the type of posts circulated demonizing the Rohingya. The FFM found that Facebook was used as an effective platform to disseminate hate speech, which in the commission of atrocities such as crimes against humanity could amount to persecution in itself. In addition, the FFM report commented on the slowness of Facebook in responding to complaints regarding threats towards human rights defenders seen as collaborating with the FFM. Belatedly, upon the release of the preliminary FFM report in August, Facebook banned individuals and organizations from the platform, including the Myanmar army chief. The FFM also requested the provision of country specific data regarding hate speech by Facebook, which has not been forthcoming. However, Facebook has preserved data and content from pages, which may be used by the independent mechanism recently approved by the Human Rights Council.

Impact assessment: Too little, too late?  

A key objective of the human rights impact assessment conducted by BSR was to “Identify and prioritize actual and potential human rights impacts, including both risks and opportunities” (emphasis my own), along with recommendations to address the impacts, mitigate risk, and build staff capacity in the management of human rights. Using the UN Guiding Principles on Business and Human Rights (UNGP), the report issues a set of recommendations based on security, privacy, freedom of expression, assembly, and association, children’s rights, nondiscrimination, standard of living and access to culture.

A few thoughts on the report, based on the overall method, focus and tone. While seemingly trivial, the modification of UNGP language in setting the scope of the exercise at the outset is telling – the requirement of a business to “identify and assess any actual or potential adverse human rights impacts” in Principle 18 relating to due diligence is changed to “identify and prioritize”, thereby arguably sidestepping the need to actually assess the harm caused or that continues to be caused. Perhaps predictably, the report does not address the atrocities in Myanmar (past and ongoing by all accounts) and its role, other than in a cursory manner. The emphasis, despite the purported objective of the report, is to look to the future. While clearly important to address the subsequent policies and plans of the company, given that the commission of mass atrocities have led to enhanced scrutiny, it is troubling that the past actions have not been the subject of a thorough assessment. The report also does not address the criticisms levelled by the FFM report. Another question worth exploring more relates to the different standard of care of Facebook towards its users in Asia, as compared to the U.S and Europe.

The report makes the point that a link to violations in Myanmar should not be “overestimated” and that ultimately the state has the responsibility to uphold human rights. While not denying the role of the state, this point is disingenuous – the primary responsibility of states does not absolve other actors including corporations of legal responsibility. Currently, the drafting of a treaty on business and human rights is continuing apace.

Eventually, using the UNGP criteria related to whether a business “causes or contributes” harm, Facebook denies any responsibility in regard to impacts on security, privacy, non-discrimination or rights of children. However, there is no attempt to address the third type of involvement as elaborated by Ruggie, whether the impact is “directly linked to its operations, products or services without cause or contribution on its part.”

Ultimately, as part of the recommendations, BSR suggests a stand-alone human rights policy across the board for all countries, as well as specific initiatives such as Myanmar community standards.The report maps out regulatory weaknesses and recommends policy, legal and regulatory reform, in Myanmar as well as at the regional level focusing on ASEAN. However, in the region, the status of internet freedoms is under significant threat, with telecom and internet security laws used to violate civil liberties. Further, while undoubtedly Facebook has relevant expertise, the prospect of it being an honest broker in these discussions, given its substantial interests, is unfortunately suspect.

While premature, it is worth noting that international legal accountability of individuals in corporations implicated in mass atrocities is not new. In the closest comparison, executives of RTLM – a radio company which disseminated hate speech in the run up to and during the genocide in Rwanda – were prosecuted and convicted at the International Criminal Tribunal for Rwanda for crimes including incitement to commit genocide. Prosecutions at Nuremberg included executives of companies that manufactured Zyklon-B poison gas used in the gas chambers.

Conclusion

There are many questions to be answered still, linked to the approach of Facebook regarding what has occurred in Myanmar, as well as the aims and impact of this report. The FFM report has laid the groundwork for a more detailed assessment of the role of social media in the commission of mass atrocities. However, the Facebook report neatly sidesteps difficult questions that the FFM report has posed. No doubt the report is pertinent in canvassing the issues in a wholistic manner – but is this sufficient? There is also the question of what comes next and the extent to which the recommendations of the report will be followed through.