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Congolese families whose children were killed or maimed while mining cobalt are trying to stop accused technology companies from having their legal case dismissed.
Lawyers from International Rights Advocates, who are representing the families, told a Washington DC court that Alphabet, Apple, Dell, Microsoft and Tesla applied an “improper legal standard” when arguing that they did not have the requisite knowledge to be held responsible for the abuses.
The original lawsuit was filed in December 2019 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 families of the 16 dead or injured children are also seeking damages from all five companies for unjust enrichment, negligent supervision, and the intentional infliction of emotional distress.
Eleven of the children sustained a variety of injuries, including smashed limbs and broken spines, while five others were killed by tunnel collapses or fell into unprotected mining shafts.
The lawsuit marks the first legal challenge of its kind against technology companies, many of which rely on their cobalt supply chains to power products such as electric cars, smartphones and laptops.
In a joint motion to dismiss filed on 25 August, the companies told the court that the case should not go ahead because “knowledge of a general problem in an industry, for example, is insufficient” to prove they knew about the violations that had injured the child miners, adding that they did not have “requisite knowledge” of the abuses at the specific mining sites mentioned.
“Plaintiffs’ allegations are insufficient under this standard because they constitute, at most, general assertions that defendants should have known of labour issues in the DRC or in the cobalt mining industry generally,” the motion said.
In response to this claim, International Rights Advocates has countered that all five companies “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”.
The organisation 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.
It also pointed to “numerous stories with detailed findings and photos” that have appeared in the likes of the Washington Post, The Guardian and the Mail on Sunday.
“Defendants again, relying on the incorrect legal standard, dismiss these allegations because the reports are not specific to the plaintiffs.,” it said. “There is no question that these prominent public reports gave defendants notice and constructive knowledge of forced child labour in their cobalt supply chain venture.”
Definition of ‘venture’ and ‘forced labour’
In attempting to dismiss the case, the tech companies also contended that, under definitions contained in the Trafficking Victims Protection Reauthorization Act (TVPRA), “an entire global supply chain is not a ‘venture’”.
They added: “The plain meaning of the word ‘venture’ under the TVPRA… requires more than simply being a part of a global supply chain. Indeed, if the law were otherwise, any manufacturer or consumer of products that contain cobalt supplied by Glencore, Umicore or Huayou Cobalt would be part of an unlawful ‘venture’ and subject to potential enforcement, including potential criminal enforcement.”
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.
Speaking to Computer Weekly after the filing of the motion, Terrence Collingsworth, executive director of International Rights Advocates, said: “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. 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.”
In its response, International Rights Advocates pointed to previous cases that have assessed the legal meaning of “venture”, all of which found one could exist “based solely on an informal, tacit understanding”. It pointed out that legal cases about the collaboration between hotel businesses and sex traffickers did not “require any formal agreement or creation of a business relationship”.
“Instead, a tacit understanding that the hotels would rent rooms to a sex trafficker and turn a blind eye to the unlawful conduct was sufficient. In none of these cases was there any explicit agreement forming the venture, which was found to exist based on a mutually beneficial relationship.”
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The response went on to claim that the technology firms “are not mere purchasers of cobalt, but are participants in a cobalt supply chain venture in which they have explicit supplier agreements… and an implicit understanding that defendants were getting cheap cobalt mined by children and they would turn a blind eye to continue with and protect the venture”.
It added that the tacit agreement between the technology and mining firms was modified as a result of the International Rights Advocates lawsuit, as once the technology companies “could no longer merely turn a blind eye following increased public scrutiny”, they used their clout and control over their supply chains to make Glencore and Huayou join the Fair Cobalt Alliance.
“Defendants have always had the necessary control to require Glencore and Huayou to stop using child labour, but confirming they did have this control, defendants waited until after this lawsuit was filed… to at least begin working to create the impression they were trying to stop the venture from using forced child labour,” it said.
On the point that the child miners were not forced into mining cobalt, the response claimed that the companies knew most families in the area around the mines were “desperately poor”, and that no one would perform this hazardous work of mining cobalt for such little pay unless they had no alternative.
It added that the firms could, “if they chose to put the lives of child miners above their profits, stop the abuse of children forced to work in DRC cobalt mines”.
All five technology companies were offered a chance to comment on the International Rights Advocates response and asked what due diligence they had conducted in the DRC to ensure their cobalt supply chains were free from child labour, but only Microsoft responded.
“We are committed to responsible and ethical sourcing of materials and do not tolerate child labour in our supply chain,” said a Microsoft spokesperson. “We hold our suppliers to the high standards prescribed in our supplier code of conduct, including upholding human rights, labour, health and safety, environmental and business ethics.
“While we continue to work with non-governmental organisations to help bring an end to child labour in the DRC and beyond, we have filed a motion to dismiss this suit. The claims are without merit and we believe that the court will agree.”