which was attended by more than a dozen Facebook employees in 2015.40 Civil society leaders communicated these issues to Facebook officials at length between 2015 and 2017, also visiting Facebook’s headquarters.41 These conversations took place with Facebook at the same time when Genocide Watch, in 2015, warned that Myanmar was at high risk of an outbreak of genocide against the Rohingya.42 Despite Facebook being made aware of actual adverse impacts of its product, it failed to account for them, or put in place measures to prevent and mitigate potential adverse impacts in the future. Conversely, Facebook actively went about pursuing more aggressive business practices to widen their market share by introducing the “Free Basics” and “Facebook Flex” initiatives. These initiatives are discussed in more detail in the next section dedicated to Facebook’s contribution to adverse human rights impacts. With respect to leverage, the HRIA commissioned by Facebook erroneously found that “Facebook’s leverage is significantly curtailed by the historical, political, and conflict- based local context that is often the root cause of security risks.”43 Due diligence requirements are not lessened or eliminated by virtue of the conflict-based local context in which the business operations are taking place. This would enable corporations to absolve themselves of any due diligence obligations when operating in totalitarian states. Rather it is the historical, political and conflict-based local context that meant that the risk for operating in Myanmar was greater, and thus required enhanced due diligence. This is even more so given the well-documented history of persecution of the Rohingya at the hands of the Tatmadaw, and thus the increased likelihood of incendiary hate-speech being amplified by Facebook’s algorithmic processes. The OECD Due Diligence Guidance for Responsible Business Conduct reflects this by recommending that MNEs gather information to understand the high-level risks of adverse impacts related to the sector, including inter alia, conflict.44 In addition, the HRIA fails to extend Facebook’s due diligence requirements as encompassing a review of the data-mining and algorithmic aspects of its business model as a whole. As Amnesty International notes, Facebook’s business model that “depends on invasive datadriven operations amounting to mass corporate surveillance must find ways to transition to a rights-respecting business model” which requires “human rights due diligence policies and processes to address the systemic and widespread human rights impacts of their business models as a whole.”45 40 Steve Stecklow, ‘Why Facebook is losing the war on hate speech in Myanmar’, Reuters, 15 August 2018, viewed 1 August 2018, <https://www.reuters.com/investigates/special-report/myanmar-facebook-hate/>. See Mark Latanero and Aaina Agarwal Carr Centre Discussion Paper, ‘Human Rights Impact Assessment for AI: Learning from Facebook’s Failure in Myanmar’, March 19 2021, p 6. 41 Ibid. 42 Christina Szurlej, ‘A 2015 genocide warning: Applying Stanton’s 10 stages to the Rohingya of Myanmar’, Genocide Watch, 12 December 2019, <https://www.genocidewatch.com/single-post/2019/12/11/a-2015genocide-warning-applying-stantons-10-stages-to-the-rohingya-of-myanmar>. [accessed 28 May 2021] 43 Business for Social Responsibility, ‘Human Rights Impact Assessment’, October 2018, p 35, <https://fbnewsroomus.files.wordpress.com/2018/11/bsr-facebook-myanmar-hria_final.pdf> [accessed 28 May 2021]. 44 OECD Due Diligence Guidance for Responsible Business Conduct, p 25. 45 Amnesty International Report, Surveillance Giants: How the Business Model of Google and Facebook Threatens Human Rights, 21 November 2019, p 26, <https://www.amnesty.org/en/documents/document/?indexNumber=pol30%2F1404%2F2019&language=en>. [accessed 28 May 2021] 11