Democracy leaks

When Wikileaks made its disclosures about the war, the banks’ paymasters – Visa, MasterCard and Paypal – panicked. The decision to deprive Wikileaks of the means to receive money has nearly brought it down.

Is this a victory for law and order or the suppression of the right to free speech and a frustration of democracy?

By deciding to take action against Wikileaks before any crime by Wikileaks had been proved, they are setting a very dangerous precedent: if such pre-emptive action is justified, why do they not take action against all sorts of other people and organisations that have been accused of a crime? Are racist organizations denied their services?

No doubt they will have a worked-through policy for which activities they are prepared to block on their own account before knowing that a crime has been committed. If they think of themselves as ‘corporate citizens’, we should be told about this policy and how it led to the Wikileaks decision. Or perhaps they don’t have one…

Maybe next time they won’t react quite so swiftly.


Transparently in Trouble

The current controversies about transparency, privacy and free speech raise very many issues:

  • the difference between the public interest and what the public is interested in
  • the relative access to justice of the rich and of the poor
  • the right roles of parliament and the courts
  • the balancing of privacy against freedom of expression
  • the awkwardness of laws designed for concentrated, national means of expression (newspapers) being applied to the internationally distributed technologies of the internet (Twitter).

Yet what all of these debates should take account of is the difference between the rights enjoyed by companies and those enjoyed by real people. There should be no presumption that a case for protecting the privacy of individuals is also a case for companies to be able to enjoy the same protection. Yet currently companies enjoy human rights, including privacy, in the same way as do people.

The injustice this can lead to was well illustrated by Trafigura. That company successfully, at first, sought to conceal information on its dumping of toxic wastes through a super-injunction (in which not only the underlying facts, but also the existence of the injunction itself is concealed). This kind of use of the law is merely an instrument of reputation management. It should never be allowed to trump the public interest.


Is a responsibility shared a responsibility halved?

The Deepwater Horizon disaster that polluted the Gulf of Mexico was all BP’s fault – wasn’t it? Well that is no doubt  just what is being expensively tested in the courts. How much should BP pay? For how much should subcontractors such as Transocean and Halliburton be responsible?

IIED has produced a new report on shared responsibility in the oil industry spelling out the ways in which supply chains should work together on social and environmental responsibility. And of course this is a problem that goes way beyond the oil industry. Increasingly extended supply chains are a general feature of globalisation.

The emphasis of the IIED report is on how companies and their supply chains can work together to avoid problems occurring in the first place, rather than on quantifying responsibility for the costs when the worst has happened. But the worst will happen from time to time. And you would have thought that having worked out how to share responsibilities in advance would not only reduce the chance of it happening, but also make more obvious how the cost of paying for it should be allocated.


Has the Companies Act made a difference?

My recent research shows that the Companies Act seems to have made little difference to what companies actually report.

Companies are supposed to have a business review and that should contain reference to non-financial information. But the key findings are that for the FTSE100:

  • 8% have no clearly identifiable business review, leading to confusion for shareholders and stakeholders alike.
  • 17% made no reference to environmental issues, despite wide acceptance that climate change is a business risk.
  • 8% completely failed to include any social issues in their business review; 14% failed to include any social issues other than labour.

Truth & Reconciliation for Bhopal?

The Bhopal tragedy is still an open sore today, after 25 years. Is Dow chemicals interested in truth and reconciliation?

Is there a possibility of a Corporate Truth Commission?  Could companies bear to be faced with the personal pain which some of their actions have caused?  Would suffering communities think it worth their while?  Would they talk?  Would companies risk the legal actions which could result?  What would the basis of reconciliation be?  Would campaigning organisations take the process seriously?  Would the process enable communities and individuals to live in greater harmony and trust with companies?  Would companies implement meaningful management systems to control their behaviour in the future?  Could there be a change of heart?


Guilty of Transparency

The previous Director of Public Prosecutions is worried about libel. The UK libel laws seem capable of stifling free expression and scientific debate. And they have been used by companies in order to protect their reputations, whatever the cost to civil rights.

The worst aspect of this is that if accused of libel, you are effectively guilty until you have proved yourself innocent. And the cost of defending yourself in court is such that most simply remove the allegedly libellous material from the public domain when challenged.

But while companies may win through the legal system, the very action of  pursuing a libel case will lose them the battle in the court of public opinion. Their reputations can only be diminished by the very thing which is supposed to protect it.


A case for suppressing citizenship?

As reported in The Guardian, Trafigura seems to have put its own interests above that of the public: in preventing disclosure of compensation it has paid, in seeking to conceal the fact of its legal actions and in trying to suppress the reporting of parliament.

How can this be squared with this brave CSR declaration on its website: “Trafigura’s impact on the global economy is a positive one; our responsibility is to the communities in which we operate, our customers, our suppliers and employees.”


Co-moderator of Nanotechnology Regulation Conference

I shall be running sessions at the 5th Nanoregulation Conference at Rapperswil, Switzerland on 25th and 26th November 2009.

What is it about? In the light of the European Parliament calling for adaptations of the regulatory framework regarding manufactured nanomaterials, what will be the strategy of the European Commission? Which nano-specific information is indispensable for authorities and consumers? Which instruments for communication and transfer of nano-specific information along the value chain are available?

Nanotechnology is an emerging technology that as yet, society does not know quite how to handle. This is not surprising, as perfectly ordinary substances when ground down to a nanometer scale acquire properties that can be terrifying – for good or ill.


Taking Sustainability on Trust

A new report has tackled the issue of fiduciary responsibility and the tangle of trust law head on.

At issue is what should be expected from someone who invests on your behalf. Should they only pay attention to hard financial analysis – or can they look at social, environmental and governance issues too?

The report finds that not only that they can they do so, but that generally they have a duty in law to do so. This is a really important finding.

But what is not so clear is what trustees should do if they find that, having taken everything into account, they would still make money from an investment that had profound adverse environmental or social consequences.


Being Seen to be Done

The Director of Public Prosecutions is contemplating permitting parts of trials to be televised.

The media would love it.  And transparency is good.  But it would be a far more important step to make the transcripts of trials and judgements of the Courts available on the internet.  These are mostly in the public domain – theoretically.  But in practice they are buried quite deeply and are very hard to find.