April 23, 2008
Will Google Remain Evil?
Yes, if the Company gets its way at its annual shareholder meeting on May 8, 2008. Why? Because Google has recommended a no vote against a shareholder resolution for the creation of a board-level advisory committee on human rights. [the Company's Proxy Statement]. As information professionals, shouldn't we be concerned?
Resolution 5: Committee on Human Rights is offered by Harrington Investments. Here's the text:
4.7 COMMITTEE ON HUMAN RIGHTS
RESOLVED: To amend the Bylaws, by inserting the following after section 4.6:
Section 4.7. Board Committee on Human Rights. There is established a Board Committee on Human Rights, which is created and authorized to review the implications of company policies, above and beyond matters of legal compliance, for the human rights of individuals in the US and worldwide.
The Board of Directors is authorized in its discretion consistent with these Bylaws, the Articles of Incorporation and applicable law to (1) select the members of the Board Committee on Human Rights, (2) provide said committee with funds for operating expenses, (3) adopt regulations or guidelines to govern said Committee’s operations, (4) empower said Committee to solicit public input and to issue periodic reports to shareholders and the public, at reasonable expense and excluding confidential information, including but not limited to an annual report on the implications of company policies, above and beyond matters of legal compliance, for the human rights of individuals in the US and worldwide, and (5) any other measures within the Board’s discretion consistent with these Bylaws and applicable law.
Nothing herein shall restrict the power of the Board of Directors to manage the business and affairs of the company. The Board Committee on Human Rights shall not incur any costs to the company except as authorized by the Board of Directors.
The proposed Bylaw would establish a Board Committee on Human Rights which would review and make policy recommendations regarding human rights issues raised by the company’s activities and policies. We believe the proposed Board Committee on Human Rights could be an effective mechanism for addressing the human rights implications of the company’s activities and policies as they emerge anywhere in the world. In defining “human rights,” proponents suggest that the committee could use the US Bill of Rights and the Universal Declaration of Human Rights as nonbinding benchmark or reference documents.
Perhaps Google is scared off by the proposed committee's mandate: "authorized to review the implications of company policies, above and beyond matters of legal compliance, for the human rights of individuals in the US and worldwide." (emphasis added). But note how the US Bill of Rights and the Universal Declaration of Human Rights are referred to as "nonbinding benchmark or reference documents" for defining human rights. The proposed committee could be the first step towards developing a corporate human rights policy. Apparently Google doesn't want to join the growing number of companies that already have one [see compilation of company policy statements maintained by the Business & Human Rights Resource Centre].
Of course, this shareholder resolution is a reaction to Google's complicity with China's authoritarian regime by modifying the version of its search engine in China to exclude controversial topics such as the Tiananmen Square massacre or the Falun Gong movement. When asked whether he regretted the decision, Sergey Brin admitted: "On a business level, that decision to censor... was a net negative." [Google Censorship FAQ]
Clearly Google isn't prepared to change the "net negative" yet. In addition to opposing the human rights committee proposal, it should come as no surprise that the Company opposes (again) a strongly worded anti-censorship shareholder resolution. Unlike the human rights committee proposal, the Internet censorship resolution identifies minimum standards for establishing corporate policies to protect freedom of access to the Internet.
Shareholder Resolution 4: Internet Censorship is offered by the Office of the Comptroller of New York City, the custodian and trustee of the New York City Employees’ Retirement System, the New York City Teachers’ Retirement System, the New York City Police Pension Fund, and the New York City Fire Department Pension Fund, and custodian of the New York City Board of Education Retirement System, and others. Here's the text:
Whereas, freedom of speech and freedom of the press are fundamental human rights, and free use of the Internet is protected in Article 19 of the Universal Declaration of Human Rights, which guarantees freedom to “receive and impart information and ideas through any media regardless of frontiers”, and
Whereas, the rapid provision of full and uncensored information through the Internet has become a major industry in the United States, and one of its major exports, and
Whereas, political censorship of the Internet degrades the quality of that service and ultimately threatens the integrity and viability of the industry itself, both in the United States and abroad, and
Whereas, some authoritarian foreign governments such as the Governments of Belarus, Burma, China, Cuba, Egypt, Iran, North Korea, Saudi Arabia, Syria, Tunisia, Turkmenistan, Uzbekistan, and Vietnam block, restrict, and monitor the information their citizens attempt to obtain, and
Whereas, technology companies in the United States such as Google, that operate in countries controlled by authoritarian governments have an obligation to comply with the principles of the United Nations Declaration of Human Rights, and
Whereas, technology companies in the United States have failed to develop adequate standards by which they can conduct business with authoritarian governments while protecting human rights to freedom of speech and freedom of expression,
Therefore, be it resolved, that shareholders request that management institute policies to help protect freedom of access to the Internet which would include the following minimum standards:
(1) Data that can identify individual users should not be hosted in Internet restricting countries, where political speech can be treated as a crime by the legal system.
(2) The company will not engage in pro-active censorship.
(3) The company will use all legal means to resist demands for censorship. The company will only comply with such demands if required to do so through legally binding procedures.
(4) Users will be clearly informed when the company has acceded to legally binding government requests to filter or otherwise censor content that the user is trying to access.
(5) Users should be informed about the company’s data retention practices, and the ways in which their data is shared with third parties.
(6) The company will document all cases where legally-binding censorship requests have been complied with, and that information will be publicly available.
Google's Corporate Culture. Google has already violated it's "don't be evil" corporate code of conduct;. Shareholders can change the Company's direction by voting in favor of these proposals. Prior to voting, hopefully shareholders will review Google's Letter from the Founders: "An Owner's Manual" for Google's Shareholders from the S-1 Registration Statement, which states in part:
Don't be evil. We believe strongly that in the long term, we will be better served—as shareholders and in all other ways—by a company that does good things for the world even if we forgo some short term gains. This is an important aspect of our culture and is broadly shared within the company.
We aspire to make Google an institution that makes the world a better place. In pursuing this goal, we will always be mindful of our responsibilities to our shareholders, employees, customers and business partners.
Compelling Corporate Conduct. In the U.S., there are three principal mechanisms for compelling corporate conduct: governmental action (through legislation and judicial enforcement), shareholder action and consumer action. I doubt consumer boycotts (e.g., refusing to click on Google ads) is going to work. Looks like shareholder action won't work either. That leaves government action which could turn on corporate complicity and corporate culture, the twin themes of the above shareholder resolutions.
Perhaps it is time to follow international criminal law standards. Complicity does not require knowledge of the specific abuse or a desire for it to have occurred, as long as there was knowledge of the contribution. Therefore, it may not matter that the company was merely carrying out normal business activities if those activities contributed to the abuse and the company was aware or should have been aware of its contribution. The fact that a company was following orders, fulfilling contractual obligations, or even complying with national law will not, alone, guarantee it legal protection. See John G. Ruggie's recent report to the UN Human Rights Council, Protect, Respect and Remedy: a Framework for Business and Human Rights (April 7, 2008) [pdf] (John Ruggie, Evron and Jeane Kirkpatrick Professor of International Affairs, Harvard Kennedy School of Government, is Special Representative of the UN Secretary-General on business & human rights.)
Maybe it is time to follow what some national governments are doing, namely apply "corporate culture" in deciding corporate criminal accountability by examining a company’s policies, rules and practices to determine criminal liability and punishment, rather than basing accountability on the individual acts of employees or officers. See Corporate Culture as a Basis for the Criminal Liability of Corporations (Feb. 2008)(prepared for the Special Representative by the law firm Allens Arthur Robinson)(pdf). See also, Trends in the Use of Corporate Law and Shareholder Activism to Increase Corporate Responsibility and Accountability for Human Rights (Dec. 2007)(prepared for the Special Representative by the law firm Fried Frank)(pdf).
I wonder what our presidential contenders have to say. If we cannot promote corporate social responsibility through shareholder or consumer action, national governments must be persuaded to regain control of corporations through regulation. That's the conclusion University of British Columbia law prof Joel Bakan reached in his 2004 work, The Corporation: The Pathological Pursuit of Profit and Power [LLB post]. [JH]
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