A/HRC/50/56 1. The responsiveness of judicial mechanisms to cases of human rights harms arising from the use of technologies 46. The Guiding Principles make clear that effective judicial mechanisms are “at the core of ensuring access to remedy” (guiding principle 26, commentary). 47. However, affected people and their legal representatives can face challenges in identifying a cause of action that maps sufficiently well onto the type of human rights harms suffered as a result of the use of digital technologies or the manner in which they were designed or developed.43 Furthermore, legal theories and causes of action that focus on harms to individuals may not be easily adapted to deal with instances of collective and societal harm arising from the way that technologies have been designed, used or deployed, or systemic issues. 48. Although courts play a vital role in clarifying companies’ legal responsibilities under domestic law in line with the State’s human right obligations, there are constitutional limits to the extent that they can correct flaws and fill gaps in underlying domestic legislative regimes. Moreover, even comprehensive and well-designed regulatory regimes will not ensure accountability and access to remedy if people lack the information and knowledge to be able to make use of them. While power and information imbalances can operate as a significant barrier to access to remedy generally, between individuals and technology companies these problems can be particularly acute, for instance where abuses of human rights have arisen as a result of the workings of algorithmic decision-making, or because of the level of technical expertise needed to identify and analyse the uses to which different technologies have been put and their causal relationships to human rights harms.44 49. As policymakers and legislators begin to pay greater attention to the adverse human rights impacts occasioned by the collective and societal effects of the business activities of technology companies, remedy for affected rights holders is key to remediate adverse impacts, which in many cases are not confined to domestic borders and may be global in reach. 2. The role of State-based non-judicial mechanisms 50. The Guiding Principles highlight the vital role played by administrative, legislative and other non-judicial mechanisms in complementing and supplementing judicial mechanisms (guiding principle 27, commentary). 51. State-based non-judicial mechanisms of particular relevance to the technology sector can include products standards authorities, licensing authorities, regulators responsible for the implementation of data protection laws, information and privacy commissioners, State ombudsman services, public health and safety bodies, professional standards bodies and national human rights institutions.45 In addition, national contact points established under the Organization for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises have recently been involved in several “specific instance procedures”46 involving the human rights implications of technologies and the activities of technology companies, raised under the human rights chapter of the OECD Guidelines, including examples of successful mediation.47 Such cases involved online platforms and the use of algorithms that pushed potentially harmful content, cases concerning investor due diligence with regard to harmful technology manufacturing in their investment portfolios, online marketplaces listing dangerous products for sale and telecommunications providers that were alleged to be linked to the censorship of political dissidents of their government clients.48 52. In some cases, for instance in cases of breaches of data protection, and where noncompliance with legal standards is either easy to establish or self-evident, these types of 43 44 45 46 47 48 10 See https://www.ohchr.org/sites/default/files/2022-03/International-Bar-Association.pdf. See https://www.ohchr.org/sites/default/files/2022-03/AlgorithmWatch.pdf. See https://www.ohchr.org/sites/default/files/2022-03/NHRI_B_Tech_consultation.pdf. See https://www.oecd.org/daf/inv/mne/48004323.pdf. See https://www.ohchr.org/sites/default/files/2022-03/Poland.pdf. See OECD database of specific instances.