Realizing the Role of National Human Rights Institutions as Non-Judicial Redress Mechanisms for Human Rights Violations on Dating Apps: A Case for the Kenya National Commission on Human Rights
In the 1990s, there was a worldwide expansion of the private sector and an increase in transnational economic activity. With this rise in private sector economic activity and expansion, came an increased awareness of the impact of business activity on human rights. This impact caught the attention of the United Nations (UN) which embarked on a mission to find out how the duties contained in human rights treaties ratified by states could also be imposed on companies.
A special representative appointed by the UN in 2005 began research on the issues of human rights, transnational corporations, and other business enterprises. The research culminated in a framework: The Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ endorsed by the Human Rights Council in June 2011. The framework rests on three pillars; the state’s duty to protect against human rights abuses by third parties including business enterprises; through policies, regulation, and adjudication; the corporate responsibility to respect human rights meaning that, businesses should avoid infringing human rights and address impacts with which they are involved, and the third pillar is on the need for greater access to remedies by victims.
Whether Dating Apps are Business Enterprises
A business enterprise is defined by the law dictionary as a corporation, business, firm, company, or registered group with a designated purpose; or a group, driven by initiative and resourcefulness, incorporated or not, organized to conduct entrepreneurial activity. It defines business activities as everything a company does while fulfilling the strategy, purpose, objectives, and decisions of the business, such as marketing, design, research, and development.
Online dating applications provide dating services that are available through mobile dating applications that enable people to meet potential partners. Most dating apps are available for free, but to either meet more partners or enjoy premium match services, one would be required to pay a certain fee. For example, the highest subscription level on Tinder is Tinder Platinum, where one pays 29.22 US dollars to enjoy unlimited likes and advertisement removals. In terms of revenue, Bumble was in 2021 valued at 8 billion dollars and its share price went up by 60% when it went public in February 2021. Match.com, a company that operates dating apps including Tinder and OkCupid, brought in a revenue of 2.4 billion dollars in 2020 alone. These dating apps, therefore, fall under the definition of business enterprises and therefore fall within the scope of enterprises that the UN Guiding principles apply to.
Dating Apps’ Responsibility to Respect Human Rights
According to the UN guiding principles on business and human rights, (UNGPs) business enterprises have a responsibility to respect human rights. This means that they should not infringe on human rights and should address human rights impacts in which they are involved in. The enterprises should take measures to prevent, mediate and remediate, by way of grievance mechanisms, human rights impacts. However, despite his responsibility to respect human rights, business enterprises in their operations, either directly or indirectly infringe on human rights.
Dating apps, for example, collect the personal information of their users as they rely on this information collected to match users with a potential match. When registering on a dating app, a user is required to provide personal information such as their name, location, age, sex, gender, marital status, or health status in certain instances, because this information is used by the dating app to show the user profiles of persons who that user might be interested in. Considering how sensitive some of the data is, if that data falls into the wrong hands, the consequences could be serious. For example, users of dating apps have raised concerns over users being subjected to violence, aggression, and sexual harassment. An Australian study carried out in 2021 found that three-quarters of survey respondents reported that they had been subjected to sexual violence on dating apps in the last five years. The report also found that dating apps facilitated sexual violence (DAFSV). The violence was higher for women than men (42.1% of women reported DAFSV in comparison to 21.2% of men). The most common DAFSV were online sexual harassment, in-person coercion, and sexual assault, online stalking, and abusive language. No organization has conducted similar research in Africa or Kenya, which is a big gap, considering these apps are used in Kenya and therefore there is a potential for similar infringements to occur, or they are currently occurring.
Dating Apps Responsibility to Address Human Rights Impacts
As noted above, the third pillar of the UN Guiding Principles on Business and Human Rights is on the need for greater access to remedies by victims and these remedies include both judicial and non-judicial remedies. The UN Guiding Principles on Business and Human Rights defines a grievance mechanism as ‘any routinized, State-based or non-State-based, judicial or non-judicial process through which grievances concerning business-related human rights abuse can be raised and remedy can be sought’. State-based grievance mechanisms can be judicial or non-judicial and are either administered by a state agency or a branch of the state; or by an independent body that is mandated by the law or by that country’s constitution. These include the office of the ombudsperson, national human rights institutions, courts, tribunals, government-run complaints offices, and national contact points under the guidelines for multinational enterprises of the Organization for Economic Co-operation and Development.
State-based non-judicial mechanisms are important as they supplement and complement existing judicial mechanisms. Judicial mechanisms, more often than not, do not have the capacity to address all human rights abuses. In other instances, judicial mechanisms are not preferred by victims due to their costly nature and the length of time it takes to litigate. National human rights institutions are an example of a non-judicial mechanism, and are discussed at length below;
What is a National Human Rights Institution and what is its Role a Non-judicial Redress Mechanism?
The Handbook for the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights defines a National Human Rights Institution (NHRI) as a body which is established by government under the constitution, or by law or decree, the functions of which are specifically defined in terms of the promotion and protection of human rights.
In practice, National Human Rights Institutions monitor compliance of international obligations, monitor human rights in that particular country, advise governments on matters concerning human rights, investigate human rights violations and take part in human rights reporting, such as under the universal periodic review mechanisms, and handle complaints from the public.
National human rights institutions also play a critical role in ensuring that companies respect human rights, under principle 11 of the UNGPs. For example, the Danish Human Rights Institution provides guidelines, analysis and tools to assist tech companies to assess the impact of their products and services on human rights, such as a guidelines to conduct a human rights impact assessment of digital activities.
With regards to the role of national human rights institutions such as a non-judicial grievance mechanism, some national human rights institutions have a mandate to handle complaints. They can adjudicate disputes and can issue binding and non-binding decisions. More broadly, national human rights institutions provide information on what remedies are available to victims and provide recommendations for amendments to legislations.
In Kenya, the national human rights commission, The Kenya National Commission on Human Rights is mandated to promote the protection and observance of human rights in public and private institutions, and to monitor, investigate and report on the observance of human rights in all spheres of life in the republic. The Kenya National Commission on Human Rights Act also places upon the Commission the mandate to investigate human rights matters in a public or a private institution based on a complaint or on its own volition, which gives the commission the mandate to handle company-related human rights abuses. The Constitution of Kenya similarly provides that a person has a right to complain to the Commission alleging that a right has been denied, violated, infringed, or threatened, and the Commission is mandated to investigate or conduct an inquiry after receiving a complaint. After conducting an inquiry into a complaint, The Kenya National Commission on Human Rights can either refer the matter to the director of public prosecutions or any other relevant authority if the inquiry into the violation discloses a criminal offense. The Commission may also recommend to the complainant an appropriate judicial redress, the body concerned in the violation of human rights and other appropriate methods of settling the complaint or how to obtain relief.
The Act also provides that after concluding an investigation or inquiry, the Commission is mandated to report to the body that was investigated and the report should outline the findings of the investigation and any recommendations made by the commission; the appropriate action that should be taken and reasons why that action is appropriate, and the commission’s recommendations.
After submitting this report, the Commission can request the investigated body to submit a report to the Commission of the steps taken to implement the recommendations. In the event the body refuses or fails to implement the recommendations, the commission is mandated to prepare a report to parliament and parliament will take the necessary action.
Has the Kenya National Commission on Human Rights Taken up its Role as a Non-judicial Redress Mechanism for Human Rights Violations Related to Dating Apps?
A Look at the annual reports published by The Kenya National Commission on Human Rights shows that the Commission has not taken up its role as a non-judicial redress mechanism for human rights violations related to dating apps.
One of the Commission’s key mandates is to promote public awareness of human rights. The Commission in its published reports shows that it carries out human right’s public awareness and sensitization forums to educate the public on their human rights. Some of the topics they have covered include the rights of persons with disabilities, migration and human rights and intersex persons rights. The Commission has also conducted sensitization on documentation of human rights violations, but these trainings have not discussed documentation of human rights violations on dating apps.
The commission has also been involved in promoting awareness of human rights for businesses and has in the past trained private actors on human rights principles and standards. Some of the topics they have trained on in the past include monitoring and documenting human rights violations, but none of these trainings have involved dating apps as a key actor.
The Commission conducts audits on business enterprises on their compliance with national and international legal obligations. They use the UN Guiding Principles and other international standards to assist businesses in understanding their corporate responsibilities and managing business risks and makes recommendations to these business enterprises. For example, the Commission audited a cash transfer for elderly people project and provided recommendations for the project. The Commission has however not audited dating applications and has not worked with them to design policies that address potential human rights resulting from their violations.
The Commission also conducts research on the promotion of human rights and the prevention of human rights violations, but this research has so far not extended to violations on human rights resulting from dating apps.
With regards to complaints received, the Commission in the financial year 2020/2021 received 1101 complaints on alleged human rights violations. 57.2% of the complaints related to economic, social and cultural rights, 38.2% related to civil political rights while 4.6% related to violations on group rights. The data is not segregated to specific issues, so it is not clear whether any of the complaints relate to human rights violations from dating apps. However, it can be argued that if none of these complaints come from dating app users, users of dating apps in Kenya are not aware that they can lodge complaints relating to human rights violations arising from their use of dating apps, or that they are not aware that the Commission can assist them in getting a remedy.
Upon the receipt of these complaints highlighted in the report, the Commission conducted investigations and came up with recommendations to remedy the situations. For example, the Commission investigated the alleged forceful evictions of indigenous communities and recommended a multi-agency team set up to look into the issue. This was done and one of the solutions identified was that the indigenous communities would be given land.
These examples show that the Kenya National Commission on Human Rights has a key mandate in redressing human rights violations, and they have made great strides in creating public awareness on human rights, auditing business enterprises and conducting research, but have not done much with regards to redressing human rights violations arising from dating apps.
Conclusion and Recommendations
The Kenya National Commission on Human Rights is mandated to promote public awareness on human rights, conduct audits on how business enterprises promote and respect human rights, and conduct research on the promotion of human rights and the prevention of human rights violations, receive complaints and conduct investigations on human rights violations. These roles how however not extended to human rights violations arising from dating apps.
The Kenya National Commission on Human Rights should;
- Educate the public on their human rights, and more specifically;
- Educate the public on their human right to privacy.
- Encourage the public to submit complaints if their rights are infringed as they use dating apps.
- Educate the public on remedies available to victims of human rights violations arising from dating apps.
- Conduct research on human rights violations that arise from the use of dating apps.
- The Commission should conduct audits on dating applications that are used in Kenya on their compliance with national and international legal obligations.
- Encourage the public to submit complaints relating to human rights violations arising from dating apps, investigate such complaints and provide recommendations to remedy violations.
- Work with dating apps to design women-friendly policies that address potential human rights violations resulting from the use of the apps.
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