Legal Insight: Child labour case brought against Apple, Google, Dell and Tesla.

Written by Rory Oake, intern

Five U.S companies face allegations of allowing the continued trafficking and abuse of children in the Democratic Republic of Congo (DRC). An estimated 80 children are killed every year in Congolese cobalt mines and it has been claimed that several household names in the technology industry have turned a blind eye to it in order to cut their costs.

International Rights Advocates, a U.S human rights firm, have this week brought a landmark legal case against some of the world’s largest tech companies. Apple, Google, Dell, Microsoft and Tesla are among those alleged to have knowingly benefited from the exploitation of children in Congolese cobalt mines. The mining operations in question are alleged to have illegally employed children in dangerous conditions and paid them as little as one to two dollars per day. Detailed descriptions of conditions have been given by the families of children killed in mine or wall collapses, as well as survivors who sustained life changing injuries. The case has been allowed to be brought forward in the U.S under the Trafficking Victims Protection Act as this is the country of domicile of the companies accused of aiding and abetting in the exploitation and endangerment of children. Further, court papers describe the notoriously corrupt Congolese judicial system as ‘virtually non-functioning’. With this in mind, it is difficult to foresee the defence successfully challenging the U.S court’s jurisdiction as the claimants would otherwise be unable to obtain justice in their home country.

Failure to properly research and police respective supply chains

It is worth noting that the mines are not owned by any of the five defendants, rather, the claimants’ case focuses on the tech giants’ failure to properly research and police their respective supply chains. As the complaint states, such a failure is especially concerning in this instance given how significant a material cobalt is to the defendants’ manufacturing. The metal ore is an essential resource in the production of rechargeable batteries used in electric cars and portable devices, and with an estimated 60% of the world’s supply being extracted from the DRC, the rate of extraction could increase exponentially with the growth of these industries. At present, cobalt mining is carried by a large informal sector of people, many of whom are children, employed under the title of ‘artisanal’ miners. This unofficial status means that mining companies do not provide adequate tools, safety equipment or structural assurances to mining tunnels. The artisanal system is perpetuated by economic conditions in the DRC, children work to support their families or fund schooling, often after their parents are killed or injured in mining. Furthermore, the prevalence of trafficking and forced labour in the region ensures the mining companies can continue to profit from the abuse and exploitation of children.

At the time of writing, the majority of defendants named in the lawsuit have declined to comment. One of the exceptions is Dell who issued an immediate response claiming that they “never knowingly sourced operations using any form of involuntary labour, fraudulent recruiting practices or child labour”. This statement is a direct contradiction of the court papers which argue that the defendants are “knowingly benefiting from and providing substation support for the ‘artisanal’ mining system in the DRC”.

Feigning ignorance of practices in supply chains

Feigning ignorance around the practices in their supply chain is unlikely to provide defendants with any protection as numerous news articles, alongside UN and Amnesty International reports, were cited in the court papers. Likewise, Amnesty’s 2016 report stated: ‘it is no secret that children mine cobalt in the DRC’, in reference to widely read investigations by journalists. It is therefore unlikely that any of the companies will be able to maintain that they lacked any knowledge of practices in the region. Even if this were the case, it would represent an oversight on the part of the U.S companies who failed to audit suppliers or carry out due diligence.

Also likely to come under scrutiny are the tech companies’ ‘voluntary programs’ purported to keep their supply chains free of child labour. One such example is found in Apple’s 2018 statement, focussed on empowering ‘independent voices in the supply chain’, which could be seen to place the onus on whistle-blowers rather than implementing audits. This is particularly problematic in the context of Congolese mines as the industry is unregulated, known for violence against employees, and operating in a country intolerant of dissent. To expect vulnerable, sometimes illiterate, employees who lack access to smartphones or computers to report wrongdoings is simply unrealistic.

Failure to take meaningful action

The defendants’ failure to take meaningful action appears to be the cornerstone of the complaint, meaning this may have far reaching implications for other businesses. Evidently, it is not enough to profess a commitment to corporate responsibility, companies must ensure there is no disparity between policies laid out on paper and their actual practices. Given the profile of the defendants, this case certainly looks set to spark some interesting discussions around corporate responsibility, more in-depth updates will follow.