The purpose of the Openness Act is to give the general public access to information about how human rights and working conditions are handled by Norwegian businesses. The law must also give businesses awareness of their influence on negative consequences for suppliers and business partners.
Information requirements in the Transparency Act
When the Transparency Act came into force on 1 July 2022, anyone could contact businesses to demand information on how they handled actual and potential negative consequences. This requirement is called an information requirement and is defined in Section 7 of the Transparency Act.
What are information requirements?
Information requirements are an important element of the Transparency Act, as it requires businesses to answer consumers’ questions about actual and potential negative consequences on human rights at their suppliers. Anyone who wants information can make written contact with businesses that are covered by the law and ask for information. This can be done by email, physical letter or through forms that the business has on its website.
The businesses must therefore respond in writing to the information requirement within a reasonable time and within 3 weeks at the latest. Should the information requirement be incomprehensible or unreasonable, businesses can in some cases refuse the requirement. If this should be the case in the future, we recommend reading the Consumer Protection Authority’s pages for the latest news regarding refusal of information requirements.
Minimum requirements in the information requirement
Businesses must comply with several requirements in order to fulfill the information requirement, this applies to both general information and information about human rights and decent working conditions linked to a product or service.
In the first part of the information requirement, the business must, as in the report, explain the board’s anchoring of responsibilities and guidelines. This applies to specific measures that are initiated in the event of actual or potential negative consequences on human rights and decent working conditions. It can also include which departments are responsible for the various points, or explain what the board’s tasks and responsibilities are. It should also appear how the company is organized and structured.
In order to respond to information about human rights and decent working conditions linked to a specific product or service, the business must describe the findings of the due diligence assessments. Details about the supplier that can “reveal the identity” do not need to appear, but geography, industry and, if applicable, product should appear. If there are few specific cases to report, the business can explain how they ensure good working conditions and human rights with their suppliers.
It is important that the business provides written, comprehensive and comprehensible answers to how they handle actual and potential negative consequences. It is also important to include measures that have been initiated and any results thereof.
In some cases, it will be possible to refer to publicly available information, preferably also your own statement, if this provides a comprehensive answer. Expect to temporarily have to add more information, as the obligation to provide information requires you to answer the questions asked in detail and precisely.
Personal information and trade secrets
Businesses referred to in the Transparency Act are not required to disclose personal information or information that could reveal the identity of the suppliers. This also applies to trade secrets. If your suppliers have a high risk of negative consequences, in the meantime you may have to provide information about the industry and place of production, which can give consumers an estimate of who the supplier is. This also applies in the statement that must be published on the company’s website no later than 30 June each year.
In 2023, Forbrukertilsynet carried out an inspection of Posten after Klassekampen complained about a lack of information requirements. Klassekampen wanted to be sent a list of suppliers with names and organization numbers in order to verify Posten’s information about how they follow up the measures. The Norwegian Consumer Protection Authority concluded that the company had not broken the law, and specified that there was generally no need to state the company name and organization number in the information requirement or statement.
Risk-based approach and the principle of proportionality
The due diligence assessments that have been carried out form the basis for what you must answer in the information requirement. The response to the company should also be viewed from two principles: a risk-based approach and the principle of proportionality.
A risk-based approach means that the measures taken by the business in the due diligence assessments should correspond to severity and probability. This principle therefore states that when the probability and degree of severity of negative consequences at the supplier is high, it will require more comprehensive due diligence assessments.
The principle of proportionality, on the other hand, means that due diligence assessments are carried out based on what is expected of the size, nature and context of the business. This means that larger businesses may have to spend more resources and time on carrying out due diligence assessments and responding to information requirements.
Information requirements for violations of human rights
Should a business be aware of actual negative consequences for basic human rights at its suppliers, the information requirement must be answered. The rules around name, place of production and personal information also apply in this case.
If the business is made aware of conditions in the information requirement that they have not uncovered in the due diligence assessments, the business must carry out new assessments of its suppliers.
This applies in particular if:
- The information requirement is sufficiently specified
- The information requirement applies to concrete negative consequences
- The consideration of verifiability
- The principles of proportionality and risk-based approach