A US district court judge has dismissed the legal case brought against five major technology companies over the cobalt mining deaths of Congolese children, finding there is not a strong enough causal relationship between the firms’ conduct and the miners’ injuries.
The lawsuit against Alphabet, Apple, Dell, Microsoft and Tesla was originally filed in Washington DC in December 2019, by human rights group International Rights Advocates, on behalf of 14 families who accused the technology firms of knowingly aiding and abetting – and subsequently benefiting from – forced labour practices in the Democratic Republic of the Congo (DRC).
The lawsuit marked the first legal challenge of its kind against a technology company, many of which rely on their cobalt supply chains to power products such as electric cars, smartphones and laptops.
As many as 11 of the children sustained a variety of injuries, including smashed limbs and broken spines, while five others were killed by tunnel collapses or falling into unprotected mining shafts.
“While the plaintiffs’ amended complaint describes tragic events, it suffers from several flaws,” said District Court Judge Carl J. Nichols in an official opinion dismissing the case, published 2 November 2021. “The plaintiffs must have standing to bring their claims, but here they do not: the harm they allege is not traceable to any defendant. Plaintiffs have also failed to adequately plead a violation of the [Trafficking Victims Protection Reauthorization Act] TVPRA or any of the common-law torts they pursue.
“Even then, it is not obvious that the civil-remedy portion of the TVPRA applies extraterritorially – a fatal fact, as the alleged violations took place far from this country’s shores.”
According to an International Rights Advocates press release, Nichols’ ruling breaks with “an enormous and unanimous body of precedent” by finding that the TVPRA does not apply extraterritorially to civil claims. It added that there is no question that the tech giants involved could have used their “considerable market leverage to enforce” the anti-child labour policies they purport to have.
Appealing the decision
Responding to the opinion, Terrence Collingsworth, executive director of International Rights Advocates, said cobalt is an “essential element in making the lithium-ion batteries” that power the products of these five technology companies, and that his firm would be appealing the decision.
“The major disputed legal issue is whether the tech companies can be held responsible for what happened to the child miners,” he told Computer Weekly. “The companies told the court they are mere purchasers of cobalt and have nothing to do with DRC mines, while they tell consumers that they have control over their supply chains and have enacted ‘policies’ that prohibit child labour in the cobalt mines they source from.
“Whether the companies lied to the court or their consumers is a question of fact for a jury to decide, not the court on a procedural motion. We think the court of appeals will agree with us on that.”
Computer Weekly contacted the five tech firms about the case’s dismissal but they were not immediately available for comment.
The legal battle so far
In the original complaint filed on behalf of the Congolese families, International Rights Advocates argued: “The cobalt supply chain… is a ‘venture’ that exists for the purpose of maintaining a steady supply of cheap cobalt that is mined by peasants and children. The supply chain is, by design, hidden and secretive to allow all participants to profit from cheap cobalt mined under extremely hazardous conditions by desperate children forced to perform extremely hazardous labour without safety equipment of any kind.”
It added that none of the firms had performed the human rights due diligence necessary to verify that children were not working in their supply chains, and that they were consciously obscuring the reality on the ground so as to benefit from the cheap exploited labour of the children for as long as possible.
In August 2020, the five firms filed a joint motion to dismiss the case, contending that, under definitions contained in the TVPRA, “an entire global supply chain is not a ‘venture’”.
The companies further claimed that the maimed and dead child miners were not “forced” into labour under definitions in the same Act, which they said only encompasses labour that is compelled by direct threats of force or harm from the employer, and not labour that is compelled by other circumstances, such as economic pressure.
In a third and final substantive argument, the companies also claimed they did not have “requisite knowledge” of the abuses at the specific mining sites mentioned, and that “knowledge of a general problem in an industry, for example, is insufficient” to prove they knew about the violations that had injured the plaintiffs.
In response to the companies’ attempt to dismiss the case, International Rights Advocates counter-claimed that all five “had specific knowledge of horrific conditions facing child miners in DRC cobalt mines from a number of sources,” adding that, for example, “they all had internal or external risk assessment reports and corporate social responsibility offices”.
It added: “Apple even fired an employee who implored the company to do more to stop the use of child labour. Four of the companies – Apple, Dell, Microsoft and Alphabet – collaborated with Pact, a non-profit organisation, to fund a ‘model’ mine that is child labour-free. As the first amended complaint states, ‘these companies cannot be paying to try to stop a system of forced child labour that they do not have specific knowledge of’.”
International Rights Advocates further claimed that the companies “had constructive knowledge of pervasive forced child labour in DRC cobalt mining as a result of widespread public reports from highly credible sources”, including Amnesty International and several other non-governmental organisations, the US Department of Labor and Unicef.
Collingsworth told Computer Weekly at the time that “The law that exists about venture explicitly says that it need not be a legal relationship, just an association ‘in fact’.
“Whether they wrote it down or coordinated it in a back room somewhere, all of these companies together are cooperating in this very limited cobalt supply chain,” he said. “There aren’t 100 companies buying cobalt from Glencore, there are eight or nine and we’ve sued five of them. It’s a small group of people that are cooperating to protect the essential supply chain to get their cobalt.”
The situation in DRC
The DRC is home to what the International Rescue Committee has called “the world’s deadliest conflict since World War II” – 5.4 million people were killed between 1998 and 2008, with approximately 45,000 deaths occurring each month. It’s also home to a wealth of natural resources, including an abundance of minerals that are vital components in electronic products.
On top of cobalt, the most prominent are tin, tantalum, tungsten and gold, otherwise known as 3TG minerals.
All four 3TG minerals and cobalt were included in the US Department of Labor’s 2020 List of goods produced by child labor or forced labor, which explicitly states these minerals are coming from the DRC.
In June 2020, KnowTheChain, an organisation attempting to drive awareness and corporate action on the ICT sector’s international employment practices, found in its third benchmark report that the majority of technology companies remain “negligent in their efforts to address forced labour”, lacking the essential processes and tools needed to tackle, let alone eliminate, abuses in their supply chains.
The report noted a number of poor practices which increase the risk of forced labour taking place.
This includes companies not conducting human rights impact assessments on their supply chains, the absence of a supplier code of conduct and a lack of grievance mechanisms for workers.
It also said the Covid-19 pandemic is exacerbating the issue of forced labour, with increases in “excessive overtime, poor and hazardous working and living conditions, wage withholding, and the abuse of workers who lack alternative livelihood options – all indicators of forced labour.”
