You may well ask - how on earth can a mafia capo in Chicago from the early 20th century have anything to do with Business and Human Rights in the 21st century?
The answer is in how the law was used successfully to prosecute Al Capone. You might think it was for murder, extortion, numbers running or sex trafficking, as it was those offences for which he was known and feared and which caused the most obvious harm. Yet, despite years of investigation and building a case, prosecutors were never able to pin any of this on him.
In 1931 Alfonso "Scarface" Capone was found guilty of tax evasion and served seven years in prison after being sentenced to 11 years. It ultimately broke him and his grip on his crime syndicate.
So what, exactly, is the connection with Business and Human Rights? Prosecutors got their man by thinking laterally and pursuing him for an offence they could support evidentially. Recent trends in business and human rights related litigation against companies show that, increasingly, this is how corporate involvement in human rights harm will be challenged by interested parties be they government regulators, NGOs or other stakeholders. Cases are emerging in several jurisdictions where the underlying issue of concern is human right harm (eg related to land ownership or forced or child labour in the supply chain) but the case has been brought relying on causes of action that might appear to be unrelated to human rights.
A good example of this phenomenon is a series of recent cases initiated against various food manufacturing companies in the United States of America relating to the sourcing of cocoa. The claims are based on misleading advertising and misrepresentation of marketing claims to consumers using consumer laws and also equitable principles, in these cases unjust enrichment. These claims do not rely on any specific breach of the UN Guiding Principles on Business and Human Rights or International Human Rights Standards. Evidentially, however, they are based on just such breaches and non-compliance with a responsibility to respect human rights. Most importantly, the legal claims rely on the companies’ alleged failure to inform consumers what actually happens in their respective supply chains and potentially to provide consumers with information that does not reflect the position on the ground.
In each case the companies have made a number of statements about their commitment to remove child labour from their supply chains within a set period and signed up to industry codes and sector initiatives supporting that objective. Time limits to which they have committed have slipped over and with knowledge that on the farms from which much, if not the majority, of their cocoa supplies are harvested, use of forced and child labour and unsafe working conditions still exist. Despite this no statements clarifying that position are made to consumers at the point of sale. On the contrary the impression given, it is alleged, is that child labour and other human rights harm is not tolerated and chocolate products are produced free from that scourge.
There is one very obvious difference today from the time when the authorities were trying to stop Al Capone. In the 1920’s and 1930’s there was no Internet, Twitter, Instagram or social media. Today, companies cannot be confident that information they might hope to keep to themselves will not be revealed or that statements made in the past will not be found later on. It also raises the risk that company actions are tracked much more effectively by civil society and other stakeholders reinforcing the importance that claims and statements that are made must be accurate and reflect what is actually happening. Little can be kept from an eagle -eyed researcher or lawyer and this is well illustrated by the manner in which these recent chocolate claims are set out. Furthermore, research data appears to confirm that a not insignificant proportion of consumers of these products would be influenced in their purchasing activities if informed of the actual position on the supplying estates.
Whilst the UK has a self -regulatory regime which might name and shame a company for making untruthful or misleading claims, criminal sanctions can come into play under the Control of Misleading Advertising Regulations 1988. Here a company can be prosecuted if they mislead either by what they say or what they do not say about their products or services and the consumer makes an economic decision based on that misrepresentation. It is an untested question as to whether the claims in the US actions would satisfy this evidential test.
Business should understand that naming and shaming through an adverse adjudication by the Advertising Standards Authority (ASA) is not to be underestimated. It is one way for civil society organizations to put the onus on businesses to justify their public statements and commitments in relation to products and services that might be linked to human rights harm. It is also possible that competitors can make complaints because of perceived unfair competitive advantages obtained as a consequence of claims and statements made.
When a complaint is made to the ASA (and other international marketing regulatory bodies) the advertiser must demonstrate that the challenged claim is accurate and supporting material has to have existed at the time the claim is made. Companies must ensure that any claim or statement that could be interpreted as relating to human rights risks in a supply chain is rigorously checked for accuracy and that it reflects the true position on the ground. An adverse adjudication published on the ASA website against a well-known company will always be popular with interested journalists on a slow news day!
If an "Al Capone" scenario is to be avoided, corporate human rights policies, processes and performance will need to be placed high on the General Counsel's risk agenda, reinforcing the importance of effective human rights due diligence and risk assessments.