Saturday, 23 January 2021

Media in the Media

There is but one way to ensure an unbiased interpretation of public policy positions pertaining to concerns, or less concern, about any range of social ethics and how these affect and are affected by private interests, from small business to industry and consumers thereof, and how efforts at expediency for the sake of each relates to the same for each other.
The debate has to be followed closely, but with any and all names and attributions removed at the outset. This presents its own problem — a possible, perhaps nearly certain inability to include the full breadth of pertinent interests — but a transparent lens clear of potential confirmation bias can come only by way of an invisible background of source voices. Trust in the prudence of your own prejudice of the medium of the message is impossible.

Submitted for your concern, or pertaining to none of them, a pro-contra debate about a draft supply chain law in Germany, said to be stalled by its civil liability clause. I have read the relevant debate in an article in this morning's paper and present my translation here with the names and backgrounds of the participants blurred:

After it became clear that a voluntary regulation would not achieve much, the XXX and XXY agreed to pass a supply chain law. But implementation has been delayed for almost a year now. While the German Bullshit Minister Evil Human (XXX) and his counterpart in the Ministry of Making Shit Up, Also Evil (XXY), agree on the main features, the Ministry of Fuck You under Killer McGrifter (XYX) is stalling. While several companies, including Virtue and Branding, are calling for a supply chain law, the associations for the establishment that they are not responsible for anything they benefit from are primarily resisting the planned civil liability clause, which stipulates that workers who are injured along the supply chain will in future be able to take legal action against the company in question in Germany. Without this clause, the law is ineffective, say people who know better. Not reasonable for the companies, complain representatives of the cold avarice. High time to let both sides have their say: In a double interview, This One Person, Mx. Fuck Them and representative of These Other People, Mx. Fuck You talk about global responsibility, future technology in the fight against child labor, and corporate fear.
Mx. Them, what is the Supply Chain Act supposed to do?

Fuck Them: The law is intended to make companies liable if human rights violations or environmental damage occur along their supply chain in the countries where they have production facilities. So it's simply a matter of making sure that companies take their responsibility seriously globally as well.

And that is a problem from your point of view, Mx. You?

Fuck You: As far as the goal is concerned, we are all in agreement. Adhering to human rights and commitment to sustainability are not only important for our companies, they are a matter of course. German companies are sought-after employers abroad and contribute to higher standards through know-how transfer and training, especially in human resources development. From the point of view of business, the question of how far-reaching the responsibility for companies should be is critical. The conditions still need to be adjusted here. It must be clear that a company cannot be held liable for its entire supply chain; after all, it is only in a direct contractual relationship - a relationship entered into voluntarily by both sides without one side having any authority over the other - with its direct supplier.

Fuck Them: But the so-called duty of care is not about companies having to be able to trace the entire supply chain or being held liable for it. It is always about appropriateness. As an entrepreneur, you should be able to prove that you have made an effort to ensure that human rights violations or environmental pollution do not occur within your own supply chains. That will be adapted to the context. As it stands now, companies that don't care about what happens in their own supply chains are rewarded. But the companies that do make an effort and, in some cases, trace their supply chains down to the last detail, are at a competitive disadvantage. This creates the wrong incentives.

Fuck You: With the competition, you are addressing an important issue. Companies need a global standard, because the German economy operates globally and the supply chain networks are global. A national law, only of one state, cannot apply to other states and would already lead to a distortion of competition in a single European market. It is crucial how this connection of due diligence and potential liability should look like. You mentioned adequacy - this is a term that currently leaves companies with legal uncertainty. Because in the end it is a matter of interpretation.

Fuck Them
: Only if civil liability is included in the law will people be able to sue for damages. We have seen in many accidents that have happened along supply chains in recent years that often nothing happens. There are people who have lost an arm or a leg and have been waiting all their lives for some kind of compensation and currently have little opportunity to sue those who are directly or indirectly responsible. Incidentally, even with civil liability, the hurdle that must be cleared to bring a lawsuit is incredibly high. This is because the accident should have been foreseeable and preventable. There is really no need to fear a "wave of lawsuits," as they always say.

Fuck You: The XXX believes that the German government should instead take a very close look at which industry initiatives are having what effect and then expand them in a targeted manner. This must also be done through international agreements and development cooperation. Otherwise, there is a danger of building a law that causes high costs and bureaucracy, but in the end has little effect. That would be a knockout criterion for medium-sized companies in particular, which would then withdraw from the regions in question, which would in doubt worsen the situation on the ground.

Fuck Them: I am sure that companies will never withdraw from some areas. Simply because there is no alternative. This is particularly true of so-called conflict minerals, which are also needed for many future technologies, for example cobalt: This is extracted under precarious conditions - child labor in particular is a major problem.

Many companies, such as Viture, Signal and As If, are now in favor of the law - and are confident that they will be able to comply with it, while others are reluctant to do so. So how difficult is it to track the supply chain?

Fuck Them: There are now so many modern technologies that can efficiently track extremely complex supply chains - blockchain, facial recognition, GPS tracking and so on. In this way, some companies are already succeeding in precisely tracking the path that cobalt, for example, takes from the mine to the battery. And that often even saves costs: because if companies know their supply chain so precisely, they can optimize their delivery routes. In the automotive industry, by the way, it is common practice to be able to trace where the individual parts come from: This is so that, in the event of an accident, you know whether it was the vehicle that caused it and whether the company can be held liable. And that's not supposed to work for human rights?

Fuck You: It's true that a lot has happened, especially with large companies, in terms of tracking. In most cases, however, blockchain-based tracking is still a pilot project. In terms of data, it also makes a difference whether the goal is to track product quality or to protect human rights from violations. In the case of cobalt from the Congo, too, tracking has so far only worked for individual certified mines. In addition, the large companies invest a lot of money in this type of tracking, have teams on site and train the suppliers in the country itself. For medium-sized and small companies, this is much more difficult. The normal medium-sized company is not even on site, it buys from the wholesaler.

But if the XXX purchases from the wholesaler - wouldn't the responsibility then lie with the latter according to the Supply Chain Act?

Fuck You: That is precisely the central question. So far, there is only a key point paper from last spring. With regard to civil liability, this has not been clearly formulated. As things stand, it can be assumed that companies could be held liable for the actions of third parties with whom they have no contractual relationship. In your example, that would be the wholesaler's suppliers, but the purchasing SME has no influence over them.

Fuck Them: But according to the principle of due diligence, it is precisely not the case that the supplier of the supplier's supplier is held liable. If I'm an electrician laying cables that I buy in the wholesale market, I have no liability risk. However, if I'm a wholesaler and I don't care where that material comes from and I don't care, then that's an avoidable breach of duty of care.

Doesn't the Supply Chain Act also have advantages for industry because it excludes imports from certain countries with poor human rights records?

Fuck You: That depends on whether such a law targets only European companies or also non-European companies doing business in the EU. On the subject of protectionism, the industry has a clear stance: we are committed to free trade and market openness. The experience of the Corona crisis in particular has led to calls in Germany for value creation to be shifted more strongly back to Germany and Europe. The consequences of protectionist isolation would be dramatic for an exporting nation. Germany in particular benefits more than almost any other economy from globalization and the international division of labor. In order to achieve better results in the area of human rights, pressure must be exerted on the national governments of the countries concerned.

Fuck Them: It's a chicken-and-egg problem: Will Kill For Money is asked to raise protection standards, and when that happens, companies migrate to We Kill Too. An effective supply chain law would be a solution to that.

Fuck You: It is too easy to think that a supply chain law in Germany will change the situation in the countries of the global South. The reality is more complex. As an example, the poop manufacturer Split Your Shorts has bought land in Land With What They Want and sources sustainable poop crops directly from there - that's great, of course, but not all companies can gain access to their own raw materials, especially since this does not allow other companies to participate. These limits have to be recognized. Companies should get together and are already doing so in industry and multi stakeholder initiatives, but the idea that a single company can dictate the entire value chain is wrong.

Fuck Them: If you say companies should band together, then there is nothing better than a supply chain law. Because only then will companies have any interest at all in joining together and then running a poop plantation together.

How great is your expectation that something will still happen in this legislative period? Because after the election, this won't necessarily be at the top of the agenda.

Fuck Them: I suspect that new key points will come at the beginning of February, which will then be discussed. I am cautiously optimistic. I'm glad that Lousy Douche didn't become XXX chairman; I had the impression that he was less open. The XXX also knows that the negotiating partner in the next legislature will be the Xes. The Xes have pushed very hard for a supply chain law. So I suspect that the XXX is not playing for time.


Fuck You: In the coalition agreement, the XXX and XXX agreed to implement a law to this effect. But the main points of contention remain whether there will be civil liability for companies, at what size companies should be included, and how deeply the supply chain must be tracked.

The interview was conducted by This That and The Other.