Can Egypt’s communication giants be sued in the US for the blackout early in the revolution?

Yasmine Gado, Tuesday 24 May 2011

Egyptians may be able to sue Vodafone and Mobinil in US courts under a law that allows foreign citizens to bring legal claims to redress violations of international human rights law

Beginning on 28 January 2011, on the orders of former president Hosni Mubarak, Egypt’s telecommunications giants Vodafone, Mobinil and Etisalat cut services, phones and the Internet for five days. Mubarak took the action to inhibit Egyptians' freedom to associate and organise, part of an overall terror campaign to suppress the revolt against his regime which also included killing protesters and torturing them in the Egyptian Museum.

In April, the Egyptian Centre for Housing Rights filed a lawsuit on behalf of other plaintiffs against the three telecommunications companies (and a number of current and former Egyptian officials) seeking compensation for the damages they suffered due to the shutdown of communications. The case is ongoing.

An interesting question is whether any of these companies could also be sued in US courts. Non-US citizens may sue a corporation for compensation in US courts under the Alien Tort Claims Act (ATCA) for aiding and abetting violations of international law, including human rights law, occurring anywhere in the world. Not all human rights violations can be remedied under this law however; only those that are based on international norms which are universal and well-defined.

So far claims based on free speech and association rights alone have not been held to meet that test. However, torture and extrajudicial killing do, and have been the basis for many claims brought under ATCA. If Egyptian plaintiffs can convince a US court that by shutting down communications the telecom companies knowingly participated in a campaign designed to inhibit and deny Egyptians the freedom to associate and organize and even more egregiously a terror campaign that included torture and extrajudicial killing, they may have a case.

In order to be sued in the United States a corporation must conduct continuous and systematic business there. The Vodafone parent company has substantial connections to the US, based on its 45 per cent stake in the US company Verizon Wireless. The plaintiffs could sue the Vodafone parent if they can show that the decision by Vodafone Egypt to shut down services can be attributed to the parent. This would depend on how closely the parent was involved in the decision and other factors. Mobinil is an Egyptian company and can be sued in the US only if it or its parent companies (including Orascom Telecom) have significant connections there.

Some US federal courts would require the plaintiffs to prove the corporation knowingly assisted the perpetrator of the human rights violations (knowledge standard), while others require proof that the corporation shared the intent of the perpetrator (purpose standard). The latter standard is more difficult to meet since companies are almost always driven by a profit motive. Vodafone and Mobinil must have known they were participants in Mubarak's terror campaign but it isn't clear they shared Mubarak's motive in ensuring the regime's survival. Therefore it would be safer to sue in a court following the knowledge standard.

There are many defences the corporations could raise, and an exhaustive analysis is beyond the scope of this article, but two are particularly relevant. Under the “act of state” doctrine, US courts have discretion to dismiss cases that involve questioning the act of a foreign sovereign in its own territory. There are a number of factors courts would consider but the fact that the Mubarak regime is no longer in power weighs in favour of hearing the suit rather than dismissing it.

Another defence the corporations could raise is that the suit is more appropriate for an Egyptian court to decide based on the location of evidence and witnesses, the burden on the defendants and the burden on US courts. Corporations have used this defence to defeat many claims against them under the ATCA. Without conducting a comprehensive analysis, it should be noted that the defendants are multinationals that can afford to litigate in a foreign court and the evidence in this case does not require extensive fact-gathering in Egypt.

About 100 corporations have been sued under the ATCA for human rights violations committed overseas. Most have been dismissed, but several resulted in multi-million dollar settlements (against Shell, Unocal and Yahoo!). Some US courts have become increasingly hostile to the use of the ATCA against corporations and the courts are currently divided on the issue, which eventually will be settled by the US Supreme Court (or the US Congress). Therefore, now may not be the best time to bring such a lawsuit and it is by no means clear that such a case would succeed in any event.

Nevertheless, even if a suit was unsuccessful, arguably the negative publicity associated with credible allegations of involvement in human rights violations might deter these and other telecom companies from taking similar action in the future at the request of a despotic regime, not only in Egypt but in other countries where they operate.

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