Sustainability & ESG News

Environment

• Conservation via NFTs: In Brazil, Nemus has been releasing NFTs linked to parcels of the Brazilian rainforest (via geographical coordinates), in an attempt to protect the area from deforestation by giving the owners of the NFTs the right to participate in future decisions about protecting the land. This has attracted the attention of the public prosecutor’s office in the state of Amazonas, which has ordered Nemus to present deeds to this land. It questioned in a public statement whether Nemus had obtained consent from local people, and from the government’s indigenous people’s agency Funai, to act in the area. It is unclear what the outcome of the request was, but Nemus appears to still be operating.
• Google’s Flight Data: Last month the BBC reported on Google’s apparent airbrushing of flight carbon footprint data. By removing “CO2 equivalent” measurements (for example, contrails, which are known to have a warming impact on the atmosphere but which do not contain CO2), Google has been able to have the apparent carbon impact of flights in its carbon footprint tool. When set against the backdrop of incoming EU legislation on the subject of commercial environmental reporting and planning, it’s an odd move which could have some impact on businesses’ reporting accuracy.

Social

• Facebook, Foxglove and the Whistleblower: Foxglove, a UK-based NGO set up to hold big tech accountable, is partnering with Nairobi legal outfit Nzili and Sumbi Advocates to bring a case in the Kenyan courts against Facebook and their outsourcing partner Sama – to which Facebook outsources its content moderation. Foxglove cites terrible working conditions (which it argues amounts to forced labour and modern slavery) and cases of PTSD amongst the Same workforce undertaking the moderation work as the catalysts for the case. The Facebook whistleblower, Daniel Motaung, is seeking mental health support for outsourced content moderators as equivalent to the system in place for Facebook’s directly employed worker (as well as an equivalent pay scale) and the appointment of independent human rights and psychological care consultants to conduct an internal audit of Sama’s Nairobi office to report to the court with recommendations on how to end the toxic working environment. If successful, the win will be a first for Facebook’s moderators. A long-awaited case, Daniel Motaung is expected back in court in the next few weeks.
• The ICO Consult’s on the Children’s Code: Aimed to improve the safety standards of children’s data when accessing games, websites, apps or online services, a year on from its launch the ICO is evaluating the code’s impact. The consultation is open until 11 November 2022 and welcomes views from stakeholders and the general public.

Governance

• Hedge Fund Headaches: The Financial Times reported last month on the increasing difficulties hedge funds are coming across in proving that, when it comes to emerging markets, their ESG investments are, indeed, ESG. This is highlighted by the Security and Exchange Commission’s sustainability disclosure efforts in the US, against which lobbyists are raising their voices on the basis that a lack of data might prevent investment in emerging markets altogether – seemingly against some of the more fundamental moral aims of ESG investing. This begs the question whether, or how, supply chain analytics platforms might be able to plug this gap. If they don’t, are these platforms really as ESG-focused as they often claim to be?
• UK Parent Companies, Beware: Whilst not a tech case per se, given the geographically nebulous nature of tech groups this case is one to bear in mind. The Court of Appeal was invited to determine whether it was at least arguable that parent companies in the UK owe a duty of care to overseas claimants said to be affected by the activities of the parents’ local subsidiaries. In a significant development for UK-based ESG litigation, in Municipio de Mariana v. BHP Group (U.K.) Ltd. & BHP Group Ltd the Court of Appeal has allowed a £5 billion damages claim brough by around 200,000 Brazilian claimants to proceed against mining company BHP. (It’s worth noting that only the E of ESG has been tested in this way, probably because the damage or loss is more difficult to quantify on a large scale for the S and G elements. The case continues.)