A company is deemed to have caused an adverse human rights impact if the company’s actions, acting alone, resulted in the impact. A company is deemed to have been directly linked to an adverse impact where there is a connection between the company’s activities and the adverse impact, but where this connection is not substantial enough to reach the higher threshold of contribution. The OECD’s Due Diligence Guidance provide additional guidance for making a ‘contribution’ assessment in this context: An enterprise “contributes to” an impact if its activities, in combination with the activities of other entities cause the impact, or if the activities of the enterprise cause, facilitate or incentivise another entity to cause an adverse impact. Contribution must be substantial, meaning that it does not include minor or trivial contributions. The substantial nature of the contribution and understanding when the actions of the enterprise may have caused, facilitated, or incentivised another entity to cause an adverse impact may involve the consideration of multiple factors. The following factors can be taken into account: • the extent to which an enterprise may encourage or motivate an adverse impact by another entity, i.e., the degree to which the activity increased the risk of the impact occurring. • the extent to which an enterprise could or should have known about the adverse impact or potential for adverse impact, i.e., the degree of foreseeability. • the degree to which any of enterprise’s activities actually mitigated the adverse impact or decreased the risk of the impact occurring.89 According to the OECD, “[t]he mere existence of a business relationship or activities which create the general conditions in which it is possible for adverse impacts to occur does not necessarily represent a relationship of contribution. The activity in question should substantially increase the risk of adverse impact”.90 Where the activity does not substantially increase the risk of an adverse impact, it is more likely that the activity will fall into the ‘directly linked’ category. The Guiding Principles distinguish between “actual” and “potential” human rights impact. Actual impact is one that has occurred or is occurring. Potential impact is one that may occur but has not yet done so. 91 According to Guiding Principle 22, actual impact requires remediation. Potential impacts – or human rights risks – require action to prevent harm or mitigate the risks as far as possible and to the extent to which it may do so. Where some residual impact on human rights is unavoidable, this in turn requires remediation.92 4.4 “HATE SPEECH” AND ADVOCACY OF HATRED UNDER INTERNATIONAL HUMAN RIGHTS LAW There is no universally agreed definition of “hate speech” under international human rights law, and expressions of hatred must be considered in light of both the right to freedom of expression and the rights to equality and non-discrimination. The right to freedom of expression protects many forms of speech, even speech which may be deeply offensive, shocking or disturbing.93 However, the right to freedom of expression is not absolute and it can be restricted under certain circumstances, including for the protection of the rights of others. Varying definitions of “hate speech” are used by different institutions and actors, including the IIFFMM and Meta. The IIFFMM defines hate speech as “any expression of violent or discriminatory hatred towards people”, encompassing forms of expression that “must be prohibited, those that may be prohibited, and those that must not be prohibited but may require a critical response”.94 Meta’s hate speech policy has evolved over time – at the time of writing, the company defines hate speech as: “A direct attack against people – rather than concepts or institutions – on the basis of what we call protected characteristics: race, ethnicity, national origin, disability, religious affiliation, caste, sexual orientation, sex, gender identity and 89 OECD, “OECD Due Diligence Guidance for Responsible Business Conduct”, 2018, p.70. 90 OECD, “Due Diligence Guidance” (previously cited), 2018, p.70. 91 UNOHCHR, “The Corporate Responsibility to Respect Human Rights: An Interpretive Guide”, 2012, HR/PUB/12/02, p.15. 92 UNOHCHR, “The Corporate Responsibility to Respect Human Rights: An Interpretive Guide”, 2012, HR/PUB/12/02, p.18. 93 UN Human Rights Committee, General Comment 34, CCPR/C/GC/34, para. 11. 94 IIFFMM, Detailed findings, para. 1307. THE SOCIAL ATROCITY META AND THE RIGHT TO REMEDY FOR THE ROHINGYA Amnesty International 23