Hria4 v8 PDF

The Place and Challenges of Human Rights Impact
Assessments in Latin American Internet Regulatory

Futures*
Ramiro Álvarez Ugarte

CELE
January 30, 2023
Abstract
Human Rights Impact Assessments (HRIA) have become an important tool of corporate
governance in the field of business and human rights, and—thus—have been embraced by
companies in the ICT sector. This was to an extent predictable: for quite some time now,
Internet companies have been accused of violating human rights through action or omis-
sion. In this context, HRIAs appear as a procedural mechanism that may help them make
better decisions and, at least, curb criticism. This paper seeks to contribute to inquiries into
this development by highlighting the regulatory context in which HRIAs as as tool within
the ICT sector emerged, the institutional history of the tool and its ambiguous genealogy,
and the challenges and opportunities for its usage in the Latin American ICT industry.
Keywords business and human rights, human rights impact assessments, Internet regu-
lation, governance, Latin America
Self-regulation has been the main regulatory model that has shaped the
Internet until now. Roughly based on American law and constitutional
visions of its First Amendment, the model is becoming increasingly un-
tenable, shaken by outside pressure to exercise the prerogatives the model
* I would like to thank Agustina Del Campo for thankful comments on the different iterations of this
paper. I speak throughout the text in the second-person plural nouns partially because I ventured
in the field along coauthors Alejandra Castañeda and Laura Krauer, to whom I remain thankful for
taking those first steps together. I would also like to thank the two blind reviewers. Comments made
by Reviewer B led to a major revision of its structure, as well as to the expansion and clarification of
certain points. The errors that remain are exclusively my responsibilty.
This is a working paper. Please do not cite nor circulate without the author’s authorization.
reserves for private actors in rather opposite and contradictory directions

(Marsden 2011:49). A certain anxiety has captured critics of how the Inter-
net is governed, and while the direction of change is difficult to predict, it
is certain it is coming. However, while the old world refuses to die, the
new world cannot really be born. We currently are at this interregnum
(Gramsci 1971:276). Several regulatory futures have been imagined, that
go from insisting on self-regulation to the re-assertion of sovereign author-
ity by individual states. In the middle, several innovations emerged such as
audited self-regulation and co-regulation schemes (Marsden 2011; Mars-
den, Meyer, and Brown 2020). Furthermore, efforts at global and regional
regulatory arenas have not dwindled and some of them—such as the Euro-
pean Union’s Digital Services Act (DSA)—are prone to become models that
other regions or countries may follow (European Commission 2020).
In this paper we seek to contribute to the emerging debates around In-
ternet regulation in Latin America by highlighting the potential role of hu-
man rights impact assessments (HRIAs) in the ICT sector within the region.
Partially based on previous research (Álvarez Ugarte and Krauer 2020; Cas-
tañeda and Álvarez Ugarte 2020), this paper proceeds in the following way.
In the first section we introduce HRIAs and briefly discuss their genealog-
ical history and review the literature of a relatively new field of inquiry. As a
governance device, HRIAs are connected to other forms of well-established
impact assessments (environmental and social, among others) and to other
forms of governmentality based on the premise of measuring the world,
but important and sometimes structural differences remain. These are rele-
vant to critically assess the usefulness of the tool as a procedural mechanism
to make decisions and assess reality (Götzmann, Vanclay, and Seier 2016;
Mares 2019:524; Simons and Macklin 2014).
The second section discusses methodological challenges that we have iden-
tified in studying HRIAs in the ICT sector. These are mostly connected
to the secrecy and opacity that surrounds a tool that corporations use on
a voluntary basis, as well as the relatively short-history of their adoption
within the ICT sector. These challenges call for further research, based on
approaches that could potential breach the opacity we have identified.
The third and final section poses and answers a question: how HRIAs in
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the ICT sector may be adopted in Latin America? In particular, we want to

explore what features of the Latin American context can be useful to predict
how that governance tool may be used within the region, what conditions
may favor efforts to adopt it and what may hinder them. We dwell on the
Latin American challenge mostly guided by research produced on the use
of HRIAs and other forms of impact assessment (IA) in Latin America, but
in different industries. This analysis is also informed by Latin American
history with human rights. We finish our paper with a brief conclusion and
suggest further lines of research.
Corporate Self-Regulation and HRIAs
HRIAs can be defined as a “the assessment of both the potential human

rights impact of future policies and the actual human rights impact of im-
plemented policies in a way ensuring the participation of various actors”
(de Beco 2009:140). They first emerged in the 1990s as a loosely conceptu-
alized process to assess public policy, first in the UN (UN-ESC 1990, parr.
190) and then elsewhere (Bradlow 2020; Bynoe and Spencer 1999; Corkery
and Isaacs 2020; Croft 2000). The first clear conceptualization was intro-
duced to deal with health policies by Lawrence Gostin and Jonathan Mann
(Gostin, Mann, and Gostin 1994). Their proposal is the first that described
HRIAs as a structured process (Watchirs 2002:723–24).
HRIAs should be understood as a sub-field of impact assessment stud-
ies, a governmental technique used in different fields such as development,
environmental protection, regulation, legislation, child rights, and so on
(Becker and Vanclay 2003; Blakley and Franks 2021; Burchell 1994; Gertler
et al. 2016). The goal of the technique is to lead decision-makers into pro-
cesses that help them gain a better understanding of the issue at hand, but
that also encourages them to act upon findings and assessments, evaluate
results of proposed actions and revise approaches in order to either miti-
gate undesirable consequences or encourage desirable ones. Impact assess-
ments are specific forms of governmentality, based on the idea of measuring
and evaluating reality (Hunt and Wickham 1994; Rosanvallon 2008:54–56).
They are, then, focused on procedural considerations as well as the condi-
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tions that must be attained for the process to succeed and reach the expected
outcomes.
HRIAs became a clearly defined tool thanks to the United Nations (UN)
voluntary approach to business and human rights championed by then Sec-
retary General of the United Nations Kofi Annan and imagined by John
Ruggie, the Special Representative on Human Rights and Transnational
Corporations to the Secretary-General. This voluntary framework was de-
veloped partially in rejection of a more command-and-control model that
failed to gain consensus within member states (Khoury 2016:45). This soft
law approach to the challenging question of the status of private corpo-
rations in international law (Darrow and Tomas 2005; Kinley and Tadaki
2003; Paust 2001; Ratner 2001) was the outcome of gridlock in the UN,
with Western nations that traditionally house the trans-national corpora-
tions (TNCs) that invest abroad opposing an international binding treaty,
and more peripheral nations demanding such a solution (Álvarez Ugarte
and Krauer 2020; Miretski and Bachmann 2012). John Ruggie’s protect, re-
spect, and remedy framework has been the focal point of the debate over
business and human rights ever since (Ruggie 2008).
Within this framework HRIAs came to life. The International Business
Leaders Forum, the International Finance Corporation and the UN Global
Compact developed a process that led to the “Guide to Human Rights Im-
pact Assessment and Management” (Abrahams and Wyss 2010; Owens and
Sykes 2005:133), a document that carefully defines and describes what a
HRIA should look like. It was designed as a process to increase compliance
of private companies with their human rights obligations, specially in re-
lation to TNCs operating outside their countries of incorporation (Ruggie
2007; Weissbrodt 2005).
HRIAs differ from other forms of impact assessments in significant ways.
Unlike EIAs, HRIAs lack the kind of oversight and enforcement mecha-
nisms that stem from traditional forms of statutory regulation, such as the
ones that emerge from comprehensive environmental protection statutes
(Glasson 1998:26–27). In that sense, HRIAs are more similar to SIAs, but
there are important differences (Gotzmann 2014:7–8; Götzmann et al. 2016).
One of the main ones is that SIAs are not guided by specific benchmark or
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standards, while HRIAs are: they are in theory based on black-letter law,
recognized in the form of binding international treaties and local statutes.
For that reason, human rights standards provide a benchmark that “poten-
tially gives them a more secure and precise normative foundation than, for
example, social impact assessment where the theoretical and philosophical
foundations that form the basis for assessment are more contested” (Götz-
mann et al. 2016:18). Radu Mares has argued that, for that reason, SIAs
are more tolerant towards residual impacts, a tolerance not available when
human rights law is used as the measuring rod against which specific ac-
tions and services will be measured (Mares 2019:524). From this standpoint
HRIAs are connected to children’s rights and privacy (PIAs) impact assess-
ments, that are either grounded on human rights law or national statutes,
such as e.g. data protection laws (de Beco 2009:143; De Hert 2012; Wright
and De Hert 2012).
Within the UN’s voluntary framework, one of the key concerns of re-
searchers is what drives adoption of HRIAs, an issue linked to the broader
question of why or whether voluntary frameworks work for governance
purposes. Nora Götzmann has argued that companies “commonly under-
take environmental and social impact assessments for a range of reasons,
such as regulatory requirements, as part of company standards, and to meet
and answer to social expectations” (Götzmann et al. 2016:7). This corre-
lates with some common explanations for pioneers: the extractive indus-
try adopted HRIAs partially as a consequence of very public scandals that
emerged around their operations (Banfield et al. 2005; Deonandan and
Morgan 2016; Drewry, Shandro, and Winkler 2017).
Skeptics often point out that voluntary frameworks are inherently inade-
quate. For instance, Steven Bittle and Laureen Snider cite a study conducted
on a voluntary reporting mechanism in the OECD that analyzed 96 com-
plaints processed in a period of ten years, only to find that just five resulted
in genuine changes in corporate behavior (Bittle and Snider 2013:185). Oth-
ers have pointed out that HRIAs may be used “to obtain some sort of stamp
of approval to demonstrate it has a legitimate” social licence to operate (SLO)
(Maher 2019:68), but with little effectiveness in terms of actually guiding
corporate conduct and securing human rights compliance. Penelope Si-
5
mons and Audrey Macklin, while optimistic regarding the potential use-
fulness of the tool, highlight how certain HRIAs success stories are based
on troublesome indicators or depend on priors and assumptions (such as
robust state institutions) that simply do not hold in many scenarios where
HRIAs are routinely used, such as the extractive industry (Simons and Mack-
lin 2014:83–87)
The voluntary nature of HRIAs has been a source of persistent criticism.
Simons and Macklin have argued—for instance—that by themselves, HRIAs
cannot close the governance gap produced by powerful TNCs operating un-
der weak institutional conditions, with poor countries competing among
themselves for scarce resources and thus creating incentives to diminish
costs for foreign investors by e.g. lowering regulatory requirements (Ruggie
2008:13; Shamir 2004:636; Simons and Macklin 2014:12). The lack of clear
oversight procedures and the absolute absence of enforcement mechanisms
that derive from the voluntary paradigm can be the source of an immanent
critique: there is a fundamental contradiction between voluntarism and hu-
man rights form which HRIAs cannot escape successfully (Harrison 2011;
Takahashi 2019). As Bittle and Snider put it, the UN’s voluntary model is
based on the assumption that companies will “respect” human rights vol-
untarily, even when it goes against their commercial interests (Bittle and
Snider 2013 , 187). This ignores “the structural contradiction between cor-
porate legal obligations to maximize profits for its shareholders and its non-
binding human rights obligations is a huge weakness of Ruggie’s work: cor-
porations are legally bound to uphold the ‘laws market … not human rights
standards’ ”(Bittle and Snider 2013:188).
Methods and Challenges
The literature on HRIAs is diverse and has rarely consider their use in the
ICT sector, with a handful of exceptions (Rees and Davis 2016; Samway
2016). Our previous research on the matter drew from insights derived
from the handful of HRIAs and related documents that had been made pub-
lic (Article One 2018a, 2018b; BSR 2018, 2022; Meta 2022), the procedural
manuals developed by consultants and firms (Abrahams and Wyss 2010;
6
Rights & Democracy 2011), and the policy papers of norm entrepreneurs
who called for their adoption (de Beco 2009:141; Lindblad Kernell, Emil
and Bloch Veinberg 2020; Ruggie 2007, 2011), as well as broader research
on Internet and society. A noteworthy feature of these sources is that a lot
of the work produced on defining what HRIAs are has been done by consul-
tants themselves, specially in an early period of conceptualization. Thus a
strange form of endogamy affects the field: those who describe the process
and define the tool are also the ones using it (and selling it) (See e.g., Boele
and Crispin 2013; Gotzmann 2014).
Research on the use of HRIA in the ICT sector seem to be affected by
challenges of its own. On the one hand, the sector seems to have embraced
the tool, specially through the processes and programs that came out from
the Global Network Initiative (GNI), an industry-wide, multi-stakeholder
voluntary coalition that brings together private companies, researchers, in-
vestors, and civil society (Del Campo 2022; GNI 2020b, 2020a). In the
last few years, several Internet companies and—more broadly—companies
working in telecommunications have used the tool to assess their operations
from a human rights standpoint. For instance, Meta (then Facebook) pro-
duced four HRIAs to assess its presence in Myanmar, Cambodia, Indonesia,
and Sri Lanka. Yahoo—within the GNI context—made important invest-
ment decisions based on a HRIA developed in Vietnam (Maclay 2010:87).
But many of these reports have not been made public, a fundamental flaw
of HRIAs that John Ruggie himself had identified years ago (Ruggie 2007,
par. 9). But some have. For instance, that was the case with Facebook’s re-
port on Myanmar commissioned to BSR, that offers a rare glimpse into the
way the tool has been used in the ICT sector (BSR 2018). Similarly, Face-
book also released assessments of their presence in Cambodia, Indonesia
and Sri Lanka (Article One 2018a, 2018b; Sissons and Warofka 2018). And
Telefónica has developed its human rights policy following a HRIA devel-
oped by BSR (Telefónica 2019). Similarly, Wikimedia has commissioned a
HRIA to assess its operations in 2020 (Article One and Wikimedia Founda-
tion 2020) and Facebook hired BSR to develop an ex post facto due diligence
assessment to review “the impact of Meta’s policies and activities during the
May 2021 crisis in Israel and Palestine” (BSR 2022:1; Meta 2022).
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When compared to the extent to which the Internet affects our daily life,
these handful of examples of HRIAs implementation in the ICT sector seems
like too-a-small sample to adequately assess their scope and potential. Fur-
thermore, consultants who work on these processes are often tied-up by
non-disclosure agreements and other contractual obligations that prevent
them from discussing specific assessments. Thus, observational or partici-
patory qualitative methods might be necessary to penetrate the confiden-
tiality that surrounds the object of inquiry (Jerolmack and Khan 2014; Mc-
Corquodale 2017; Small 2009). This research does not employ these meth-
ods and is based on the analysis of the small sample mentioned before.
This analysis is driven by the previous challenges we found in the use of
HRIAs in the ICT sector (Castañeda and Álvarez Ugarte 2020). After an in-
quiry into the assessments that have been made public in the last few years,
we are confident to say that these challenges remain. To summarize, we
have found that ICT companies seem more willing to recognize negative
impacts when they have been pushed into practices they would have rather
not do by authoritarian states; that there is a lack of understanding of the
effects technology has on society—based in part due to inadequate and in-
sufficient empirical research— and that this makes the exercise of “assessing
impacts” rather challenging; and that human rights standards do not offer
clear cut answers because of the extended disagreement that affects their in-
terpretation and actual application to controversial issues (Castañeda and
Álvarez Ugarte 2020).
Overall, these difficulties pose steep challenges to HRIAs as a tool of gov-
ernance in the ICT sector. HRIAs—as SIAs—have often been found to be
too “imprecise, overly theoretical, descriptive rather than explanatory, lim-
ited to local application, and expensive” and that “few of the theories upon
which it is based are clearly defined or reliable” (Massarani, Drakos, and
Pajkowska 2007:146). As Michael Kuhndt, Justus von Geibler and Mar-
tin Herrndorf put it, the “existing singular approaches fail to account for
causal chains linking companies’ activities to societal outcomes” (Kuhndt,
von Geibler, and Herrndorf 2006:20). There is simply not enough empir-
ical research to support conclusive evidence regarding those effects, a rea-
son why e.g. some of the recommendations found in HRIAs that have been
8
made public include doing or funding more research (BSR 2018:47). Con-
sider, for instance, the issue of disinformation. The research that exists on
the scope and extent of disinformation has been produced, mainly, around
the US electoral process, specially since the 2016 election of Donald Trump
to the presidency. That evidence suggests that even though disinformation
exists, it has no substantial effect on the outcome of elections, individuals
retain the capacity to tell fact from fiction, and may be even be distributed
for purposes that have nothing to do with convincing others of believing
false things (Lazer et al. 2018). If those findings are correct, are we to ex-
trapolate these to different contexts, where e.g. the capacity of critically as-
sessing information may exist within the population in different degrees?
Are HRIAs supposed to produce that kind of research? We doubt it.
This challenge is related to a third, intractable problem: human rights
standards do not offer the kind of clear benchmark against which conduct is
supposed to be judged, nor offer precise guidance (as does, for instance, en-
vironmental standards that guide EIAs). In that sense, it is possible that the
difference between SIAs and HRIAs identified before, regarding the pres-
ence of more precise guidelines in HRIAs, is purely theoretical in the ICT
sector, where human rights standards are relatively fluid and the source of
pervasive and recent disagreement (Waldron 1999). The Internet gover-
nance debate of the last few years and different regulatory initiatives sug-
gests as much. Consider a simple issue. If violent speech that falls short
of constituting an incitement to violence is restricted somewhat by a plat-
form that hosts third party content, is this a proportional way of protecting
those potentially affected by violence (e.g., minorities and other vulnerable
groups) or does these actions constitute a breach of users’ freedom of ex-
pression rights? The reader will have different answers to these questions
depending on her priors. Furthermore, she may want more information
to better understand the case. Without such an agreement, human rights
discourses—and HRIAs, for that matter—simply cannot help us to navigate
contested waters, for they are precisely the object of contention.
These obstacles ahead do not mean that HRIAs are doomed to fail as a
mechanism of due diligence and accountability, but the contradictions and
tensions embedded in their institutional genealogy and the challenges of
9
their adoption in the ICT sector are to be met if that is to happen. We cau-
tiously submit reasons for optimism. If one compares BSR report on Face-
book in Myanmar in 2018 with the report produced on the Israel and Pales-
tine crisis of 2021 interesting differences emerge (BSR 2018, 2022). While
the former seems like an exercise that has not been done before, the latter
shows a company that appears more aware of its duties and responsibilities
within the UN voluntary framework, that has deployed processes and struc-
tures and has secured specific budget lines to address these challenges. This
evolution, that should be tested against bigger samples and other processes
that unfortunately remain secret, may be an argument for HRIAs adoption
in and of itself.
The Latin American Challenge
How may HRIAs come down to Latin America on the ICT sector? What are
the main drivers that may encourage their adoption in the region, and what
are the main opportunities and challenges involved? This section seeks to
answer these questions, taking as point of departure the fact that—until now
and to the best of our knowledge—only Telefónica has conducted an HRIA
in Latin America, as part of its process to develop its Global Human Rights
Policy (Telefónica 2019). The reports used as material in that process have
not, however, been made public.
This is—thus—an exercise in imagination, but based on secondary liter-
ature that has explored the use of other impact assessment mechanisms in
Latin America and the Caribbean. When combined with what we know
about the challenges of adopting HRIAs in the ICT sector, useful insights
come up. The section follows two organizing questions. First, it discusses
the drivers of impact assessment adoption. Second, it discusses the con-
ditions for impact assessments’ success, based on the surveyed literature.
Overall, answering both questions provides a good opportunity to discuss
differences between HRIAs and other impact assessments (EIAs, SIAs, and
Health IAs, generally referred as IAs) and to discuss industry-wide differ-
ences that seem extremely important to judge the potential adoption of
HRIAs within the ICT sector in Latin America.
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Table 1. Matrix of drivers of IAs adoption
Mandatory (A) Territorial Jurisdiction (B) Incorporation Jurisdiction

Voluntary (C) CSR (D) Industry-wide
The matrix in Table 1 offers four possibilities in terms of potential drivers

of IAs adoption. It is organized around two axis. One is based on the
mandatory and voluntary nature of the commitment, and the other one is
based on the source of the pressure or demand to adopt an IA mechanism,
whether it comes from within or from abroad. This second axis should be
understood broadly, to include actions that stem purely from policies based
on private companies’ corporate social responsibility (CSR) or from the
state laws where operations unfold (within); or when those actions come
from a kind of pressure that comes from outside the company (industry-
wide standards) or the country where the company has been incorporated
(abroad).
The first, most obvious driver to IAs adoption is when these procedures
are demanded by valid regulation that applies to private companies (A).
This is typically the case with EIAs in Latin America, part of comprehensive
national regulatory regimes designed to protect the environment (Acerbi
et al. 2014). On other occasions, IAs are adopted as parts of requirements
made by laws passed in the countries where the corporation has been incor-
porated, as when national statutes establish duties to report or to perform
due diligence analysis, e.g., to secure respect for certain values in the supply
chain (B) (Álvarez Ugarte and Krauer 2020). Finally, when IAs are adopted
voluntarily by private companies, this may be the result of a private com-
mitment to specific values within the scope of CSR (C) or because there is
some kind of pressure exerted at the industry level to adopt specific stan-
dards (D). This has happened most notably in the extractive industry (Bader
2016; Banfield et al. 2005).
The matrix is useful to place HRIAs in ICT in the right place, and to dis-
miss some alternatives for their expansion as currently unlikely. For in-
stance, EIAs in Latin America are mandatory by statute (Acerbi et al. 2014).
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But researchers have found that in a handful of cases, SIAs were conducted
to complement EIAs, specially in order to deal with situations of social con-
testation that emerged around specific projects. That has been the case, for
instance, of the SIAs developed in the Huasco Valley of Chile, where a min-
ing operation was subjected to a due diligence assessment with the sup-
port of the mining company Barrick Gold after intense social contestation,
that later led to a competing, community-led HRIA (Maher 2019:64–65).
Similarly, in 2014, a mining project in Puebla was subjected to an ex ante
community-based HRIA (González Cavazos 2019). This mechanism, ac-
cording to which mandatory EIAs produce other forms of IAs as voluntary
and convenient complementary devices, is unlikely to operate in the ICT
industry. The sector has often negligible impact on the environment. Ac-
cording to the examples mentioned before, this seems to be a necessary
precondition for the emergence of political contestation that make SIAs ap-
pealing, and thus drive adoption.
On the other hand, the laws that impose duties to report or to conduct due
diligence analyses do not seem to have reached companies in the ICT sector,
except for the DSA (that is jurisdictionally limited to Europe). The statutes
that more clearly seem to have been drafted to reach oversea operations
have been designed to deal with other problematic sides of international
commerce, such as issues related to fair-trade in conflict ridden countries,
to respect for worker’s rights in the supply chain, and so on (Hoff 2019).
These laws, then, do not clearly mandate for HRIAs and should be discarded
as potential drivers.
Local regulatory action at the national level, on the other hand, seems
improbable. Even though several legislative proposals have been made in
Latin America to deal with problems such as e.g. intermediary liability, hate
speech, and disinformation, most of them never made it out of the legisla-
tive process 1 . While the DSA may become a viable model that local legisla-
tures may adopt in a modelling process (Braithwaite and Drahos 2000:539),
it is at this point difficult to imagine that this will happen anytime soon, even
though calls to that effect has been made (Observacom 2020). Furthermore,
1
On this, see the data available in CELE’s Observatorio Legislativo, available at https://
observatoriolegislativocele.com/
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those kinds of regulations, at the national level, would have to pass a con-
stitutional test of validity related to freedom of expression that would push
these initiative into an even more uncertain future.
Considering these challenges, the most likely scenario is one in which
HRIAs are adopted by private companies voluntarily, following Ruggie’s
model. Gotzmann has argued that companies engage in IAs for a myriad
of reasons, including to “meet and answer to social expectations” (Götz-
mann et al. 2016:7). This might be a good candidate for driving regional
adoption of HRIAs by private companies, specially if the local digital rights
movement manages to successfully place issues of concern in the agenda.
Civil society organizations in Latin America have tried to put pressure on
private companies, for instance by extending the Electronic Frontiers Foun-
dation (EFF) project on Who Has Your Back to the local context (ADC 2019;
Derechos Digitales 2022). While not all Internet TNCs whose services are
used in Latin America has a presence in the region, the biggest platforms
(e.g. Google, Meta, and Twitter) often have field offices that employ officials
who could—theoretically—be used as transmission band of concerns that
may force companies to meet those demands.
In terms of successful HRIAs implementation, the region seems to fulfill
certain requirements when measured according to established procedures
within the field (Abrahams and Wyss 2010), such as a strong human rights
infrastructure. Indeed, past human rights abuses have created—both at the
national and regional levels—human rights bodies, organizations, and ac-
tivists. For instance, the Inter-American system of human rights has issued
a document of standards on business and human rights, where it embraces
the UNGP general framework (CIDH 2019a, par. 50). An important part of
Latin American civil society is organized around human rights discourses
to frame their demands, they have human rights related goals as their main
objectives, and organize their advocacy around repertoires of action closely
connected to the idea of human rights (Jelin 1994; Sikkink 1993). Latin
America as a region has extensively contributed to the development of in-
ternational human rights law itself (Carozza 2003; Glendon 2003). These
underlying conditions create opportunities: if ICT companies were to adopt
HRIAs in Latin America, in most countries they would be able to find lo-
13
cal civil society organizations capable of being involved in the process. In

the field of digital rights, there are strong civil society organizations which
are closely connected among themselves and—thus—offer potential part-
ners form the kind of outreach that HRIAs demand. The involvement of
local communities—praised as important for IAs success—may be more
challenging (Morales et al. 2007). How are those stakeholders and local
communities to be identified? The scope and scale of operations by the ex-
tractive industry is different from the scope and scale of the operations of
ICT companies. As mentioned before, ICT companies that work within the
physical and transport layers have little impact on the environment. This
impact is even less noteworthy in the case of the companies operating at the
application layer, who can provide their services from afar and unknow-
ingly.
On the other hand, HRIAs—as all IA projects—are time consuming and
costly. Companies who engage in HRIAs, whether they do so voluntarily on
pressured into it by some outside agent, must allocate sufficient resources to
the task (Coze et al. 2009:400). In extractive projects spending those sums
may be seen as a form of investment; but what could drive ICT companies
to adopt similar costly analyses absent some kind of external pressure that
may threat their operations? What kind of harm can they expect to suffer
if they fail to act? This seems like an important condition that cuts against
HRIAs adoption in the ICT sector in the region, specially when consider-
ing ad-based revenue for Internet companies, a variable that seems much
more important than the sheer number of users. When thinking about ad-
revenue, only Brazil and Mexico make it to the top fifteen (Statista Digital
Market Outlook 2022).
Conclusion
In the regulatory globalization processes that has shaped Internet gover-

nance, Latin America has often been at the receiving end of regulatory flows.
Even in the case of the unusual process that led to Brazil’s Marco Civil in
2014, the solutions adopted largely followed models created elsewhere (Medeiros
and Bygrave 2015:121). The influence of European data protection stan-
14
dards on Latin American statutes has been substantial and recognized across
the board (Carrillo and Jackson 2022; Ramiro 2022). Can Latin America
emerge as a site where new regulatory models (of ICT companies, of In-
ternet platforms) will emerge? This seems very unlikely. Other regions,
for reasons previously discussed, seem to be better suited to play that role
within the regulatory globalization processes currently unfolding. The DSA
of the European Union is a comprehensive framework that might shape the
years to come, in Europe and elsewhere. The due diligence obligations in-
cluded in several sections of the DSA are obvious places from where HRIAs
can be harnessed (European Commission 2020:34, 35 and 58). The DSA
offers a much more detailed and mandatory regime than e.g. the Inter-
American standards, that until now have followed the UN’s lead (CIDH
2019a, par. 50). If the DSA is to play the function of a model in regulatory
globalization processes, then something akin to it may come down to the
region, likely at the national level (unless a regional body such as the OAS
embraces it in the form of human rights standards).
The challenges involved in the use of HRIAs in the ICT sector would—
however—remain. Usage of the tool does not necessarily means that it will
become an effective governance device. For that to happen, some challenges—
that this paper has identified—would have to be addressed. First, the volun-
tary framework must give way to a system in which outside pressure make
the argument for adopting HRIAs compelling. The use of the tool purely for
private purposes, without oversight mechanisms and proper accountabil-
ity, as well as basic forms of transparency, makes it not only ineffective, but
somewhat uninteresting. If the goal of HRIAs is to bring human rights re-
lated reasons to bear on processes of corporate decision-making, the volun-
tary element currently implied in the tool must be progressively carved out,
whether it is because of actual regulation, of modelling, or because enough
pressure and momentum on private companies has been created to push
for industry-wide standards. Second, to talk about impacts without proper
understanding of the effects technologies have on the communities that use
them is counter-intuitive and may even be counterproductive. The impact
of the Internet of society is not adequately researched generally, but this is
specially true in Latin America. As mentioned before, most empirical stud-
15
ies have been conducted elsewhere. What are the effects of disinformation
on electoral processes in Latin America? What are the effects of hate speech
in our communities? Careful, nuanced, well-funded and context-specific
research seems like a pre-requisite we are not nearly close to fulfill in order
to move into the managerial direction that HRIAs imply. Third, the idea
that human rights law provides a benchmark against which we can judge
conduct is simply false. Human rights law and discourse, and specially hu-
man rights law on freedom of expression, is not providing clear-cut answers
to the complex questions around which the human rights and ICT debate
is organized (Sullivan 2016). If the human rights standards themselves fail
to provide clear guidance, the idea to measure how they are impacted is
prone to unhelpful two-sides conclusions that diminish the potential use of
HRIAs for governance purposes.
These global challenges have special difficulties in Latin America. The
region is marked by states with insufficient capacities, and only a handful of
countries can issue effective regulatory threats on ICT companies (specially
platforms and intermediaries). The peripheral position of the region vis-à-
vis the rest of the world creates a situation in which local regulators must
wait for their turn to actually regulate (or to do so efficiently). However,
there is also a long and lustrous human rights history in the region, that
reveals itself in two ways. On the one hand, on the local civil society and on
national human rights bodies that may choose to push for HRIAs adoption
in the ICT sector. On the other, at the regional level, the OAS and its human
rights bodies, that have pushed for Internet-specific human rights standards
(CIDH 2013, 2017) and that has followed the UN’s lead on business and
human rights (CIDH 2019b). If due diligence obligations and mandatory
HRIAs would somehow make it to the digital rights movement agenda, or
the plans developed by national and regional human rights bodies, then
Latin America may get to play a more innovative and autonomous role in
the field of Internet governance. Time will tell.
16
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The Place and Challenges of Human Rights Impact

Assessments in Latin American Internet Regulatory

Ramiro Álvarez Ugarte

January 30, 2023

reserves for private actors in rather opposite and contradictory directions

the ICT sector may be adopted in Latin America? In particular, we want to

Corporate Self-Regulation and HRIAs

HRIAs can be defined as a “the assessment of both the potential human

Methods and Challenges

The Latin American Challenge

Table 1. Matrix of drivers of IAs adoption

Mandatory (A) Territorial Jurisdiction (B) Incorporation Jurisdiction

The matrix in Table 1 offers four possibilities in terms of potential drivers

cal civil society organizations capable of being involved in the process. In

In the regulatory globalization processes that has shaped Internet gover-

ogy 21(2):177–92. doi: 10.1007/s10612-013-9177-4.

la Libertad de Expresión de la CIDH.

ance on Human Rights Impact Assessments on Digital Activities. Copen-

Morales, Luis F. Beltrán, Felipe García-Rodríguez, Daniel LLuch Cota, Ger-

and Human Rights. Report of the Special Representative of the Secretary-

Frameworks.” in Managerialism in Business and Rights: Lessons on the

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