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Avoiding greenwashing in the cable industry with genuine environmental practices


Greemwashing in submarine cable industry
Photo by JakobOwens @JakobOwens

Greenwashing is a marketing strategy in which companies exaggerate or misrepresent their commitment to environmental sustainability, often to improve their public image and financial performance. In the context of the submarine cable industry, greenwashing involves making misleading claims about the environmental friendliness of these undersea infrastructure projects.


Why would companies in the submarine cable industry be tempted to engage in greenwashing? There are several reasons, and here we will analyse some of them in light of what is happening in other industries.



Brand enhancement.


In an age where environmental concerns are paramount, portraying a company as environmentally responsible can lead to a more positive brand image. This, in turn, can attract more customers and investors.


While it is true that submarine cables can have a low carbon footprint, it is also true that cable owners should not fall into the trap of making false claims about them. Many carriers and OTTs have implemented effective decarbonization programs, which should not lead to shortcuts in marketing campaigns that mislead the public by claiming inaccurate contributions to the transition to a low-carbon future without evidence.


In July 2023 the Swiss Fairness Commission, the self-regulatory body of the advertising and communications industry, condemned the football’s world governing body FIFA for making false and misleading statements about the reduced environmental impact of the 2022 World Cup in Qatar 1. The tournament was marketed as the first fully carbon neutral tournament, and FIFA committed to reducing and offsetting the carbon emissions it would generate.


However, it was clear that such an event would have an environmental impact with the construction of air-conditioned stadiums and the thousands of fans flying to the tournament. In its decision, the Commission therefore stated that sustainability goals should not be claimed to have been achieved in the absence of definitive and generally accepted methods to measure them or to ensure that measures have been implemented.




Competitive advantage.


Today, claiming to be greener than the competition can be a way to stand out. Companies often use these green marketing messages to attract more customers concerned about the effects of climate change or blue economy investors, and to compete unfairly with other more environmentally friendly projects.


An exaggerated carbon offset claim by a submarine cable owner for its new project would make it appear to mitigate more emissions than it actually does. A claim such as "our new system is climate positive" or "climate neutral" should be followed by rigorous scientific validation that the carrier's environmental project overcompensates for its own CO2 emissions, or the company should refrain from making the untrustworthy claim.


In fact, they can be considered serious fraud schemes and serve as a legal justification to terminate any external funding from regional investment banks and development finance institutions. Additionally, this misallocation of resources can hinder real sustainability efforts where they are most needed, and postpone others that are more environmentally friendly, such as Science Monitoring And Reliable Telecommunications (SMART) cables.




Regulatory Compliance.


Compliance with environmental regulations and standards is mandatory when applying for permits for new landing cable systems. In order to expedite the process or minimize the possibility of delays, a carrier or its subcontractor may be tempted to exaggerate its compliance with these regulations to appear more environmentally responsible than it actually is.


Greenwashing can involve selectively reporting positive environmental aspects of a submarine cable project while downplaying or omitting negative impacts. For example, a company may emphasize its efforts to protect marine ecosystems (e.g., coral reefs, Posidonia Oceanica), but not disclose the energy consumption or potential damage to the seabed during the installation of subsea infrastructure.


Many public hearings during the cable landing permit process are the baptism of fire for many carriers, where they must address the legitimate concerns of local communities. Those telecommunications companies that have not done their homework by properly preparing Environmental Impact Assessment (EIA) documents in advance are easily overwhelmed by the pragmatic knowledge of opposing local people who know their waters and ecosystems well. Indeed, the subsequent cable landing operations are not the stage to convince local authorities and communities that their ecosystems will not be affected without prior supporting evidence.


This is crucial as long as the submarine cable owner and its subcontractors can be prosecuted for environmental crimes if shore works are not carried out in accordance with their permits and the commitments set out in the application documents they have prepared (i.e. technical annexes to the EIA).


Greenwashing could also be used to cut costs, as carriers may seek to reduce expenses by minimizing their environmental impact. For example, they may be tempted to cut corners on cable decommissioning practices to save on the operational costs of scraping, without adhering to international standards for sustainable waste management.


When a submarine cable reaches the end of its 25-year lifespan, a cable owner typically hires a subcontractor to salvage and recycle redundant subsea infrastructure. These subcontractors should, at a minimum, meet international environmental standards to ensure that any waste is properly recycled or disposed of.


In fact, many telecommunications companies have entire sustainability departments that are challenged to rely on self-assessment forms completed by their suppliers rather than requiring ISO or other independent audit certifications from them. This practice might be considered careless, especially when compared to the more stringent standards observed at the cable installation stage, and the fact that green marketing campaigns would be strictly limited to the active cable systems.




Implications for the Industry.


The practice of greenwashing in the submarine cable industry can have significant consequences, including the misallocation of resources by investors, customers and governments to support projects that do not deliver the environmental benefits claimed. 


In addition, greenwashing claims can cause irreparable damage to marine ecosystems by cutting corners on environmental protection during cable installation. In fact, when an operator lands in a new country to expand its footprint, this can be the first and last mistake it makes.


When cases of greenwashing are uncovered, any company suffers severe reputational damage that can lead to legal action, fines, and loss of stakeholder confidence. In the past year, governments and climate advocacy groups have taken matters into their own hands to combat greenwashing, and the number of climate litigation cases is set to increase dramatically in almost every industry by 2023, from an initial focus on oil and gas companies. Moreover, researchers suggest that this litigation trend may increasingly focus on the ocean, the world's largest carbon sink.


Therefore, any submarine cable owner concerned about the possibility of greenwashing lawsuits needs to take a critical look at their public statements and marketing campaigns to ensure that there is evidence and data to support their claims. Promoting transparency, accountability and genuine environmental responsibility is essential to effectively combat greenwashing in the submarine cable industry.


Further developments in the legal arena ensure that any company that engages in greenwashing may find itself in a difficult position to defend its reputation or even its business continuity. First, many countries have enacted legislation that penalizes misleading environmental claims and requires companies to report on the environmental and social impacts of their business activities, as well as the business impact of their environmental, social and governance (ESG) efforts and initiatives, such as the Corporate Sustainability Reporting Directive (CSRD) in the European Union, which came into force in early 2023.


In addition, there is a trend to legislate against SLAPPs (Strategic Lawsuits Against Public Participation) or procédures bâillons, those lawsuits designed to censor, intimidate, and silence critics by burdening them with the costs of legal defence until they cease their criticism or opposition. This is a litigation confrontation strategy that some environmental groups have faced when denouncing greenwashing practices. In late 2022, the solicitors' regulator in England & Wales warned them that they should guard against getting involved in abusive litigation aimed at silencing legitimate critics, a clear message that law firms need to do more about SLAPPs. 


Last, in countries that have ratified the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, also known as the Aarhus Convention, any environmental defender can seek help from the United Nations Special Rapporteur under its Article 3(8), which requires states to "ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalized, persecuted or harassed in any way for their involvement.". The usual political pressure through press releases and media statements by the environmental defenders is complemented by this rapid response mechanism that goes beyond the national level. 


In summary, the submarine cable community should be aware of these developments and seek to avoid making the same mistakes as other industries. Dishonest practices that have undermined global sustainability are now subject to increased public scrutiny. Ensuring a healthy industry also means proactively ensuring that environmental labels and claims are robust, transparent, reliable and consistent with each company's actual global environmental commitments



1. KlimaAllianz v. FIFA, Swiss Commission for Fairness, 6 July, 2023. https://www.faire-werbung.ch/wp-content/uploads/2023/08/No_188_22.pdf


 

Andrés Fígoli  the Director of Fígoli Consulting

Andrés Fígoli is the director of Fígoli Consulting, where he provides legal and regulatory advice on all aspects of subsea cable work. His expertise includes contract drafting and negotiations under both civil and common law systems. Additionally, he has extensive experience as an international commercial dispute resolution lawyer. Mr. Fígoli graduated in 2002 from the Law School of the University of the Republic (Uruguay), holds a Master of Laws (LLM) from Northwestern University, and has worked on submarine cable cases for almost 21 years in a major wholesale telecommunications company. He also served as Director and Member of the Executive Committee of the International Cable Protection Committee (2015-2023).


This article was first published in Submarine Telecoms Forum Magazine #134 – January 2024.

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