the abuse.
56 One leading commentator has suggested that this looser standard is only appropriate where the conduct amounts to a violation of international criminal law (such as torture),
rather than international human rights law (such as a violation of the right to freedom of
expression).
57
The standard that is ultimately applied by a court will have a significant impact on the scope
of behavior that is potentially captured by the ATCA. It has been suggested that corporations
that facilitate state Internet filtering by providing the required software or hardware may be liable,
58 or that liability may occur where an Internet content provider transfers to a repressive
regime information that allows the regime to punish individuals for statements they have
made on the Internet.
59 In the latter situation, the connection between the company’s actions
and the repressive act by the state is clear. However, if the company’s actions were more
passive—say, agreeing to filter results according to certain government criteria—meeting the
test of a connection between the company’s activities and the breach may be more difficult.
All in all, there is a very real possibility that this process could be used to enforce the right to
freedom of expression by giving individuals standing, and holding companies liable, under the
ATCA for their involvement in Internet filtering.
In addition to the ATCA in the United States, there are signs that similar enforcement techniques are being developed in other major jurisdictions—notably within the European Union
(EU). In this regard, Professor Dinah Shelton has noted a 1999 resolution of the European Parliament ‘‘on EU standards for European enterprises operating in developing countries,’’ which
refers to a European Community law that provides that ‘‘a corporate decision or policy causing harm abroad may permit tort suits in EU courts against the parent company or branch of
the company responsible for the decision.’’
60 This resolution is significant in that it raises the
possibility of ATCA-style claims within the EU system.
In terms of what impact such suits may have, the prospects for successful claims may not
be as important as the existence of a formal venue for laying bare the extent of corporate cooperation in filtering activities. It has been suggested that the value of these processes lies not
so much in the way the suits award vast damages, but rather in the way they generate sufficient adverse publicity so as to force corporations to cease the impugned activities.
61 As with
state actors under the UNHRC process, some companies will be more susceptible to this
pressure than others.
These examples may point to a new trend of countries creating mechanisms whereby international law can be enforced domestically, thereby enabling private actors to be subject to
claims or to bring them. These approaches may be the most immediate way of accounting
for private actions and giving persons a mechanism for seeking redress. Moreover, given the
reluctance of states to hold each other to agreed-upon standards, the best hope of reinforcing
international human rights may be to make private actors accountable. Nonetheless, these
domestic approaches still leave gaps in that they are limited jurisdictionally and cannot afford
equal treatment to all people around the world.
Filtering and the International System
93
56 One leading commentator has suggested that this looser standard is only appropriate where the conduct amounts to a violation of international criminal law (such as torture),
rather than international human rights law (such as a violation of the right to freedom of
expression).
57
The standard that is ultimately applied by a court will have a significant impact on the scope
of behavior that is potentially captured by the ATCA. It has been suggested that corporations
that facilitate state Internet filtering by providing the required software or hardware may be liable,
58 or that liability may occur where an Internet content provider transfers to a repressive
regime information that allows the regime to punish individuals for statements they have
made on the Internet.
59 In the latter situation, the connection between the company’s actions
and the repressive act by the state is clear. However, if the company’s actions were more
passive—say, agreeing to filter results according to certain government criteria—meeting the
test of a connection between the company’s activities and the breach may be more difficult.
All in all, there is a very real possibility that this process could be used to enforce the right to
freedom of expression by giving individuals standing, and holding companies liable, under the
ATCA for their involvement in Internet filtering.
In addition to the ATCA in the United States, there are signs that similar enforcement techniques are being developed in other major jurisdictions—notably within the European Union
(EU). In this regard, Professor Dinah Shelton has noted a 1999 resolution of the European Parliament ‘‘on EU standards for European enterprises operating in developing countries,’’ which
refers to a European Community law that provides that ‘‘a corporate decision or policy causing harm abroad may permit tort suits in EU courts against the parent company or branch of
the company responsible for the decision.’’
60 This resolution is significant in that it raises the
possibility of ATCA-style claims within the EU system.
In terms of what impact such suits may have, the prospects for successful claims may not
be as important as the existence of a formal venue for laying bare the extent of corporate cooperation in filtering activities. It has been suggested that the value of these processes lies not
so much in the way the suits award vast damages, but rather in the way they generate sufficient adverse publicity so as to force corporations to cease the impugned activities.
61 As with
state actors under the UNHRC process, some companies will be more susceptible to this
pressure than others.
These examples may point to a new trend of countries creating mechanisms whereby international law can be enforced domestically, thereby enabling private actors to be subject to
claims or to bring them. These approaches may be the most immediate way of accounting
for private actions and giving persons a mechanism for seeking redress. Moreover, given the
reluctance of states to hold each other to agreed-upon standards, the best hope of reinforcing
international human rights may be to make private actors accountable. Nonetheless, these
domestic approaches still leave gaps in that they are limited jurisdictionally and cannot afford
equal treatment to all people around the world.
Filtering and the International System
93