27 Jun When ‘PR’ does not rhyme with ‘BHR’: Public Relations, Business and Human Rights and the Khashoggi Report
[Marie Davoise is an English-qualified lawyer who specialises in business & human rights and international criminal law. Previously in private practice, she is currently working as a Visiting Professional at the International Criminal Court.]
When it comes to business and human rights, some sectors are considered as inherently high-risk: take for example the extractive industry, with its large mining projects impacting communities, or the garment-making sector, with its underpaid workers operating in unsafe factories.
One industry, however, has so far managed to fly under the general public’s radar, perhaps unsurprisingly given the secretive environment in which it operates: the lobbying and PR industry.
The industry was suddenly put under the spotlight by an inquiry that, on its face, seems to have no link to public relations or lobbying at all: the recent report on the murder of journalist Jamal Khashoggi by UN Special Rapporteur on extrajudicial execution Agnes Callamard (the “Report”).
The Report investigates the killing of Mr Khashoggi on 2 October 2018 at the Consulate of Saudi Arabia in Istanbul. Interestingly, it contains a short but punchy section on corporate social accountability in which it encourages companies to use their leverage to address human rights concerns, for example, by severing or limiting business relationships with human rights-violating countries like Saudi Arabia.
Acknowledging that “most” companies may bear no “direct” legal responsibilities for the actions of Saudi Arabia, the Report nevertheless points out that businesses should still abide by the UN Guiding Principles for Business and Human Rights (the “UNGPs”). The Report therefore recommends that companies make their commitment to human rights known to Saudi Arabia, and that they implement policies and monitoring mechanisms to avoid entering into (or maintaining) a business relationship with State organs that participate in grave human rights abuses. Such recommendations apply “with particular force” to companies selling surveillance equipment, given “the extraordinary risk of abuse of surveillance technologies”.
The Report doesn’t stop there, however, as it goes on to describe the role of public relations (“PR”) and lobbying firms in covering up human rights abuses by Saudi Arabia in two short, scathing paragraphs – which I believe are worth quoting in full:
450. Experts consulted for the purpose of this inquiry have also pointed to the important role played by lobbyists, public relations firms, media outlets and journalists contracted by the Saudi Government, Saudi private individuals and companies. These have been used to help protect the reputation of the Kingdom abroad and to assist the authorities respond to negative reporting about the country in relation to, for example, to the attacks of the 11 September 2001, commonly known as 9/11, public executions and the killing of Mr. Khashoggi. In the course of this inquiry, the work of one company in particular was mentioned for the monitoring and analysis of social media they undertake to help identify messages and messengers critical of Saudi Arabia.
451. Do such companies bear some responsibility for the use made of their services, such as their strategic, technical and communications analyses or well-placed articles and quotes? They certainly ought to apply the UN Guiding Principles as other companies ought to. In an era where propaganda and disinformation are denounced as risks to democracy and human rights, including to the right to freedom of expression, such questions ought to be seriously considered by those in the business of selling analytical and narratives communication products. The many companies around the world that are contracted to monitor negative narratives and respond to them, by creating and spreading positive stories, developing national and global communication and political lobbying strategies, ought to determine whether their functions and outputs could be used to violate human rights in and outside Saudi Arabia. They also ought to assess whether their products may be used to cover up human rights violations. Finally, the Special Rapporteur believes that companies should consider speaking up in the face of systematic or continuous human rights abuse. While silent complicity is unlikely to result in legal liability, there are moral considerations to be met, along practical issues of reputation and image to be managed by the company or business.
The PR industry’s dirty little secret?
The link between lobbying firms and States’ human rights abuses is far from new, with European PR firms accused of ‘whitewashing’ brutal regimes around the world in recent years. Across the pond, the picture isn’t prettier, with reports that the 50 countries with the worst human rights violation records spent $168million on American lobbyists and PR specialists between 2010 and 2015. Saudi Arabia’s use of a small army of lobbying firms and publicists is no secret either, with reports such as this Guardian article showing the reach and sophistication of the Saudi PR machine.
The issue is also on Europe’s radar. Shortly after Mr Khashoggi’s killing in October 2018, a motion was proposed before the European Parliament for a resolution that would denounce the involvement of foreign public relations companies in representing Saudi Arabia and handling its public image, and call on the various EU lobbying firms to commit to refusing to represent any regime responsible for continuous human rights violations or the persecution of human rights defenders. Although the resolution that was ultimately adopted did not contain any reference to PR companies or the handling of Saudi Arabia’s image, the issue has come back before the European Parliament in recent months.
The disconnect between some firms’ vocal commitment to corporate social responsibility and their involvement with States committing gross human rights violations has not gone unnoticed. In 2016, for example, non-governmental organisation Reprieve publicly called out Qorvis, a subsidiary of advertising giant Publicis Groupe, for its work defending Saudi Arabia’s use of the death penalty. It is indeed difficult to reconcile the fact that Qorvis has been working for the country for almost two decades with Publicis’ self-proclaimed values such as “believ[ing] in Mankind” and “aim[ing] to be a good citizen everywhere it operates”. Such cognitive dissonance makes it tempting to point out that, after all, Publicis’ internal code of ethics is named ‘Janus’ – after the Roman two-faced deity.
The issue raises another, more philosophical question: where do legitimate attempts at advocacy and public relations end, and ‘culpable lobbying’ start? Does encouraging investors to invest in Russia constitute ‘culpable lobbying’? What about hiring publicists in efforts to stop the creation of a war crimes court to avoid scrutiny into a State’s actions? Where does one draw the line between permissible conduct and conduct that should be regulated, or even outlawed?
Complicity of PR firms as seen through the business and human rights framework
The UNGPs envisage the role of business in human rights violations through two nexuses: causation and contribution. Companies are obviously responsible for any negative impact they directly cause. In addition, a business could be seen as complicit if it contributes to, or is seen as contributing to, adverse human rights impacts caused by other parties.
Although a full analysis of civil law and criminal law practices around the world is outside the scope of this contribution, it’s worth noting that many legal systems rely on this idea of contribution (in civil cases) or aiding and abetting (in criminal cases) to demonstrate a company’s legal liability.
This is where difficulties arise: could PR firms be considered to have caused or contributed to violations of human rights in Saudi Arabia? The argument would not be an easy one to make. It could perhaps be argued that PR companies are enabling the continuing violation of human rights by effectively ‘covering up’ the actions of Saudi Arabia, who can then operate unchallenged. Similarly, PR firms could also be seen as complicit if their monitoring and analysis of social media enabled Saudi authorities to identify and target those who are critical of the State – as consulting firm McKinsey has been accused of doing.
The question of what causal link would need to be shown is not the only tricky one to ask: what would due diligence look like, in this context? How would PR firms be expected to prevent or remediate the negative impact of their business? How would the severity of a PR firm’s impact be evaluated?
Such grey areas make legal accountability for PR and lobbying firms’ link to human rights violations unlikely. Efforts have been made to regulate and improve transparency in lobbying, most notably through the EU Transparency Register and the US Foreign Agents Registration Act. It is unsure, however, to what extent these have actually improved transparency and accountability, as the former has been criticised for its restricted scope as it only lists organisations that directly lobby EU institutions, while the latter has been criticised for routine non-compliance and weak enforcement.
There are, of course, a range of codes of conduct, standard setting initiatives, reporting standards, and training/education initiatives that have been undertaken by professional associations, business and civil society to promote responsible lobbying (as described in this 2016 Transparency International report). Such instruments, however, come with the usual criticism linked to voluntary initiatives and soft law standards (see here for an example of such criticism).
In an era of fake news and media manipulation, and in the context of an emotionally charged and highly publicised incident, it is right for the UN Special Rapporteur to call on PR companies to reconsider their involvement with States committing human rights violations. In the words of Tyrion Lannister, “nothing is more powerful than a good story”, and those shaping narratives should not shift responsibility.
The nature of such responsibility, however, remains open for discussion. As mentioned above, it is unclear which scenarios could give rise to legal liability of lobbying companies. Regardless of the scope of their obligations, however, there is no doubt that complicity has both a legal and non-legal meanings – something the UNGPs explicitly acknowledge – and businesses would be well advised to heed the call of the UN Special Rapporteur to take into account moral considerations as well as their own reputation management issues.