Remedy

Author: Chris Wiersma

A simple definition is given by legal dictionaries, emphasizing the element of ‘recovery’ or ‘repair’, thus referring to the end result of a process described as an “effective grievance mechanism” (Le Docte, 2011)¹. The term ‘remedy’ is formally embedded in many international treaties, e.g., article 13 of the European Convention on Human Rights (ECHR)²; article 2(3;a) of the International Covenant on Civil and Political Rights (ICCPR)³; articles 12 and 23 of the Arab Charter on Human Rights (ACHR) and national public laws.

In human rights law, the provisions on the individual right to an effective remedy are directed at states (see e.g., the Committee of Ministers/Council of Europe, 2016 Recommendation on Internet Freedom; section 5⁴), as a fundamental guarantee that provides individual persons a legal means of seeking redress in connection to interferences with any of the recognized substantive human rights. As suggested by the Council of Europe’s Guide to Human Rights for Internet Users (2014, p. 26)⁵,

The remedy must be effective in practice and in law and not conditional upon the certainty of a favorable outcome for the complainant. Although no single remedy may itself entirely satisfy the requirements of Article 13 [ECHR], the aggregate of remedies provided in law may do so.

Thus, it includes the positive obligation for the states to effectively respond to human rights issues. As stated in one of the core platform law and policy sources, the “Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy Framework”⁶ (a.k.a. the Ruggie-principles; 2011, p. 27)⁷,

(…) remedy may include apologies, restitution, rehabilitation, financial or non-financial compensation and punitive sanctions (whether criminal or administrative, such as fines), as well as the prevention of harm through, for example, injunctions or guarantees of non-repetition.

In recognition of due process concerns that exist nowadays in the many relationships between online platform providers and the user, the multi stakeholder recommendations of the Internet Governance Forum’s Coalition on Platform Responsibility on the implementation of the Right to an Effective Remedy (see IGF-DCPR 2019 Outcome Document⁸) provide the major best practices for the provision of remedies by the responsible actors. As a whole (see especially section D with the relevant provisions on ‘Safeguards relating to the implementation of the remedy’), these recommendations suggest that all online platforms should provide a detailed approach in their terms of service, including the offer of measures that are commensurate with the wide scope of internet technologies’ impact and with the relevant human rights issues. These safeguards seek to enhance the remedial purpose of alternative dispute resolution mechanisms that are provided by the platforms’ terms of service – with an additional value in comparison to the above-mentioned human rights’ frameworks. Thus, platforms are recommended to foresee the need for continuous accountability and transparency during the implementation of the remedy and provide the sufficient scaling of the geographical scope of the remedy in order to contribute to tackling the challenge of effectively dealing with online harm.

References

1. Am Zehnhoff, H. W., Timmermans, H., Salmon, Y., Schmatz, E. (2011). Le docte: viertalig juridisch woordenboek; Dictionnaire de termes juridiques en quatre langues; Rechtswörterbuch in vier Sprachen; Legal dictionary in four languages. Intersentia.
2. Convention for the Protection of Human Rights and Fundamental Freedoms, adopted 4 November 4, 1950, entered into force 3 September 1953, ETS No.005 Available at:  www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005.
3. UN, International Covenant on Civil and Political Rights. Adopted, GA (XXI) of 16 December 1966, entered into force 23 March 1976. Available at: https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx.
4. Committee of Ministers/Council of Europe. (2016). Recommendation CM/Rec(2016)5[1] of the Committee of Ministers to member States on Internet freedom. Adopted by the Committee of Ministers on 13 April 201 at the 1253rd meeting of the Ministers’ Deputies. Available at: https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016806415fa#_ftn1.
5. Council of Europe (2014). Guide to Human Rights for Internet Users. Available at:  https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016804d5b31
6. UN. (2011). Guiding Principles on Business and Human Rights: United Nations “Protect, Respect and Remedy” Framework. HR/PUB/11/04. Available at: https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf.
7. Ruggie J. 2011, March 21. Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises. UN Human Rights Council Document A/HRC/17/31.
8. IGF. (2019). DCPR Outcome Document: Best Practices on Platforms’ Implementation of the Right to an Effective Remedy. Available at: https://www.intgovforum.org/multilingual/index.php?q=filedepot_download/4905/1550.