Imagine the scenario: a private Canadian software company provides sophisticated technology to the Iranian government, allowing it to deny access in Iran to thousands of websites on account of their political or social content. How would the Canadian government respond?
With outrage and condemnation, to be sure, and perhaps even with legal action (since such a commercial transaction might be in breach of sanctions legislation). But silence wouldn’t be an option.
Yet silence is precisely the response the government has chosen when, instead of Iran, the country to which a Canadian company has reportedly provided censorship software is Pakistan. Faced with credible allegations that the Canadian firm Netsweeper delivered such software to the Pakistani government—and that such software is indeed being used to restrict access to independent human rights and media information in Pakistan—the Canadian government’s only response is to refuse to comment, citing “privacy constraints”.
Legal action against Netsweeper may not be possible, but for the Canadian government to refuse even to make the moral case for disengagement amounts to its condoning censorship abroad that would be illegal at home.
Yet as there is no legal dispute with the company, it is unclear what these constraints might be. Moreover, Canada has endorsed and championed a set of UN principles on business and human rights declaring that governments will “set out clearly … that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations [i.e. including abroad].”
Netsweeper is a private Canadian company based in Guelph, Ontario. It has developed and marketed sophisticated filtering software that allows its users to search for, and block access to, specified internet content on a very widespread scale. Of course, this might assist efforts to counter hate speech or protect children, but it also has more dubious uses. An investigation made public in June 2013 by Toronto-based Citizen Lab found that Netsweeper products were installed on the Pakistani Telecommunication Company network, the largest one in Pakistan—and which operates the country’s Internet Exchange Point, through which foreign internet content enters the country. Citizen Lab further concluded through testing that the Netsweeper technology was being used by the Pakistanis to block access to websites based on their political and social content, “including websites related to human rights, sensitive religious topics and independent media.”
When faced with the charge that their actions or products are facilitating human rights abuse, many companies claim ignorance of the risks posed. Global supply chains, increasing presence in countries with weak regulatory environments, the growing complexity of business relationships: all of these, it is true, make it more difficult for companies to be fully aware of who they are dealing with or how a transaction might serve purposes other than those they intended.
No such claim is available to Netsweeper, however. In March 2012, at the initiative of the Pakistani human rights and freedom of expression group Bolo Bhi, an international campaign was launched asking foreign companies not to bid for the tender by the Pakistani government. The campaigners pointed to the likelihood that the technology would enhance the government’s capacity to restrict freedom of expression and information in Pakistan.
This appeal was sent by the Business and Human Rights Resource Centre (BHRRC) in London, UK, to several global companies, including Netsweeper. Some responded favourably: Cisco, McAfee, Sandvine, Verizon and Websense all committed publicly not to bid for the tender in Pakistan. Netsweeper did not respond in 2012. Further, they remained silent in June 2013, when the Citizen Lab report was published. According to BHRRC, the company has not even acknowledged receipt of the various appeals sent to it.
Netsweeper’s silence is one thing; the company cannot be compelled to respond. But what about the silence of the Canadian government?
BHRRC, which had circulated the initial appeal by Pakistani NGOs and obtained the company responses, reported the facts of the case in a letter to officials at Canada’s Department of Foreign Affairs, Trade and Development (DFATD). It politely invited their comment, promising to post it, along with any information or statement from the company, on its website. As noted above, citing “privacy constraints”, a senior official at DFATD refused in September 2013 to respond in any way to the Netsweeper case, and instead noted blandly, “we do routinely encourage Canadian company clients to behave responsibly and in accordance with international best practices regarding respect for human rights, including freedom of expression”. The letter went on to note that “Canada expects Canadian companies working overseas to abide by the laws of those countries and to act in accordance with applicable Canadian laws, ethical standards and corporate social responsibility standards (CSR) practices.” The fact that Netsweeper’s actions appear to be in clear breach of the above-noted UN principles requiring companies to “[a]void causing or contributing to adverse human rights impacts” was not addressed.
The silence of the Canadian government in this case is shameful, and provides a cover for companies to ignore human rights concerns. For if the government refuses to comment, or even to note that it has expressed its concern, it implicitly legitimizes the insouciance of company officials.
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The degree to which a company’s home state is responsible for enforcing global standards regarding the company’s action in a host state is a complex issue. In some areas (for example, anti-corruption or UN sanctions enforcement), home state legislation clearly has such reach. Regarding other issues, such as freedom of expression, the law is developing and the current situation is murkier. The only real tool available to those who would champion the need for foreign companies to avoid complicity in restricting free expression in countries such as Pakistan consists in seizing the moral advantage. This means engaging the companies—through dialogue if possible, and shaming if necessary.
Legal action against Netsweeper may not be possible, but for the Canadian government to refuse even to make the moral case for disengagement amounts to its condoning censorship abroad that would be illegal at home.
