Corporations as Rights-holders

Based on the previous section, when international law directly grants judicial rights and obligations to private actors, they should hence be subjects of international law.

Without revisiting the discussed legal status of non-state actors in international law, there are a number of complexities surrounding the horizontal relation between companies and others in regards to human rights. Human rights are often thought to belong to solely humans based on their human dignity. The possession of human rights may however also be thought to be drawn from human rights law, which articulates the individual possessing rights as the subject of human rights.¹⁸⁴ However as we discuss the obligations of companies, we must should

182 Reinisch (n 151) 70.

183 Jägers (n 169) 262.

184 Alison Kesby, The Right to Have Rights (Oxford University Press 2012) 93.

ask a daunting question; can profit-driven private companies be the holders of human rights?

Not much scholarly research can be found on the issue,¹⁸⁵ but it is evident that companies can be seen to enjoy human rights at least in specific cases. This is not to say that an individual and a corporation could have identical rights; nor does it mean that a juristic person would be widely accepted as a holder of human rights. However in certain domestic jurisdictions, such as the US, and also in an international instance like the European Court of Human Rights (here after ECtHR), rights have also been viewed to be the entitlement of business entities.

When discussing companies’ having rights we are discussing the actual legal entity possessing rights in separation from the rights of the company. The employees, directors and other private individuals acting within the company and for the company possess rights based on their humanity as individuals. Individuals are the holders of human rights regardless of whether they work for a company or are even in an executive role.

ECHR and the ECtHR, as noted by Ku, provide the only international human rights mechanism that grants corporate actors rights distinctly.¹⁸⁶ The Council of Europe, which was established in 1949, consists of forty-seven European states.

All these states are parties to the ECHR, which was quickly adopted in 1950 and is considered a leading binding human rights treaty. Article 1 obliges that parties secure the rights and freedoms of everyone within their jurisdiction and hence gives it a universal nature. Two of the provisions, Article 1 in Protocol 1 and Article 25 distinctly refer to legal entities, but other rights been viewed to apply to legal persons, such as companies. The legal praxis of the ECtHR indicates that human rights, even though their name indicates something else, are not the sole property of humans, but legal entities as well.

Accordingly with Article 34, any victim of a violation can bring forth an application to the ECtHR. Applicants can solely make claims against contracting states and regarding state violation of the protected rights.¹⁸⁷ The ECHR together with the protection of the ECtHR provides a rather comprehensive European human rights mechanism. Unlike other international tribunals, corporate entities are able to bring forth claims in the ECtHR regarding violations of their rights.¹⁸⁸ The first draft of

185 Not a conclusive list on notable scholarly research: Emberland (n 117) 17; Michael K Addo, ‘The Corporations as a Victim of Human Rights Violations’ in Michael K Addo (ed), Human Rights Standards and the Responsibility of Transnational Corporations (Kluwer Law International 1999); Julian G Ku, ‘The Limits of Corporate Rights Under International Law’ (2012) 12 Chicago Journal of International Law 729; Winfried HAM van den Muijsenbergh and Sam Rezai, ‘Corporations and the European Convention on Human Rights’ (2012) 25 McGeorge Global Business & Devolepment Law Journal 43; Dhooge (n 149).

186 Ku (n 185) 750.

187 ECHR (n 116), 34.

188 van den Muijsenbergh and Rezai (n 185) 48.

the ECHR noted applicants as any natural or corporate person,¹⁸⁹ and although the Convention discusses only non-governmental organisations, companies have also been accepted as applicants to the ECtHR from the very beginning. Since the first case regarding a corporate claimant in 1978, the ECtHR has dealt with cases regarding the human rights of corporate entities and considered a number of various rights applicable to corporations. The number has not been vast: by 2006, out of 2207 judgments 126 originated from applications by companies or claiming business interests.¹⁹⁰

As will be illustrated through two examples regarding freedom of expression and right to privacy, it is rather explicit that corporate entities are the holders of rights protected at least in the context of the European Convention. Certain other rights, such as right to property, were not seen to be good examples of the complex relationship between human rights and corporate entities. The ownership of property has already for decades been accepted to belong also to legal entities in domestic law and also in a more international context. Therefore the following sections will focus on two rights; freedom of expression and right to privacy. These two rights are thought to be rights belonging solely to humans, but have now been extended to belong also to legal entities. The obvious question however emerges;

how far should human rights be extended? Lastly the following discusses whether right to life could be extended to corporate entities.

3.2.1.1 Freedom of Expression

Article 10 Paragraph 1 of the ECHR states that everyone has the right to freedom of expression. This right has also been extended to corporate entities. The right has deep roots in constitutions around the world and is directly linked to democracy and the fundamental individual rights of citizens. Free speech is a right which does not directly involve the sole characteristics of humans, but can relate to governmental and non-governmental agents, such as organisations or companies. The right to free speech has been for decades debated to involve the rights of profit-driven juristic persons, and the ECtHR has extended the right to companies on several occasions.¹⁹¹

When faced with the freedom of companies, we must consider whether commercial expression can fall within the scope of freedom of speech. Free speech has been usually considered only to apply to non-financial topics. However in a

189 ibid.

190 Emberland (n 117) 14.

191 European Court of Human Rights, Gmppera Radio AG v. Switzerland, 12 Eur Ct HR 321 (28 March 1990);

European Court of Human Rights, Markt Intern Verlag GMBH & Beermann v. Germany, 12 Eur HR Rep 161 (20 November 1989); European Court of Human Rights, Sunday Times v. United Kingdom, 2 Eur HR Rep 245 (26 April 1979).

domestic context in Canada, in Ford v. Quebec the Supreme Court of Canada noted that advertisement was included in freedom of expression.¹⁹² Later on, in Irwin Toy v. Quebec, the Supreme Court of Canada noted that commercial expression could not be excluded from the protection of freedom of speech under the Canadian Charter of Rights and Freedoms.¹⁹³ Not all domicile courts have, however, agreed with such an interpretation, and even the ECtHR has made a separation between the protection of commercial and non-commercial speech. Commercial expression is considered information ‘inciting the public to purchase a particular product’¹⁹⁴ and has not been considered to fall explicitly within the scope of Article 10.¹⁹⁵

Commercial speech is at the core of a profit-driven company; non-commercial speech such as that related to politics or religion may be more applicable to freedom of expression, but may be more difficult to place in relation to the role of a company.

In the US, the Supreme Court in Citizens United v. Federal Election Commission argued that corporations and individuals have the equal right to political speech.

In its judgment, the Court viewed that the protection of the First Amendment of free speech extends to corporations.¹⁹⁶ The Court stated that the legal identity of a corporation should not suppress its right to freedom of political speech.¹⁹⁷ The decision drew much criticism in the US for allowing companies to possess such a fundamental right.

In the cases of the ECtHR, it appears that there is a level of protection that differs according to the company’s role in society. In the case of the Sunday Times v. the United Kingdom, the Sunday Times claimed that a newspaper had a right to free speech.¹⁹⁸ The Sunday Times published articles regarding children suffering from deformities caused by their mothers’ taking a supposedly safe drug containing the ingredient thalidomide. The articles were seen to cause prejudice against a party in the on-going settlement suit regarding the case. The tragedy was obviously a matter of great public concern,¹⁹⁹ with a high level of public interest. The ECtHR accepted the idea of freedom of free speech and adjudged that a violation of Article 10 regarding freedom of speech had occurred.²⁰⁰ However as noted in the Observer

192 Supreme Court of Canada, The Attorney General of Quebec v. La Chaussure Brown’s Inc., Valerie Ford, McKenna Inc., Nettoyeur et Tailleur Masson Inc. and La Compagnie de Fromage Nationale Ltée (15 December 1988).

193 Supreme Court of Canada, The Attorney General of Quebec v. Irwin Toy Limited (27 April 1989).

194 European Court of Human Rights, VGT Vereun gegen Tierfabriken v. Switzerland (28 June 2001) 57.

195 ibid 118.

196 Supreme Court of the United States, Citizens United v. Federal Election Commission, Appeal from the United States District Court for the District of Columbia, No. 08–205, 21 (January 2010) A 1.

197 ibid 50.

198 Sunday Times v. the United Kingdom (n 191).

199 ibid 33.

200 ibid 42

and the Guardian v the United Kingdom case by the ECtHR, the principles of free speech ‘are of particular importance as far as the press is concerned’ and hence it appears media outlets appear to be in a stronger situation to claim Article 10 rights.

Similarly in the case of Autronic AG v. Switzerland the ECtHR adjudged that a Swiss company’s right to freedom of expression had been breached.²⁰¹ Autronic AG wished to receive TV programmes from the Soviet Union satellites as a form of promoting their aerial dishes, but the Swiss government had refused. The complexity became whether a company could have freedom of expression even when the nature of the expression was purely commercial. The Swiss government argued that economic interests are not covered by the Convention and hence such forms of expression cannot fall within the scope of Article 10.²⁰² The Court disagreed and noted that ‘neither Autronic AG’s legal status as a limited company nor the fact that its activities were commercial nor the intrinsic nature of freedom of expression can deprive Autronic AG of the protection of Article 10’.²⁰³ Even though by all accounts the case was at the core of commercial speech, the ECHR extended the protection of Article 10.²⁰⁴ The judgment gave a strong signal on the protection of the Article 10 rights of companies, as Autronic AG was merely a producer and hence the case did not fall under, for example, the case of the Observer and the Guardian v the United Kingdom judgment of the importance of media outlets.

3.2.1.2 Right to Privacy

The right to privacy under Article 8 of the ECHR notes that ‘everyone has the right to respect for his private and family life, his home and his correspondence’.²⁰⁵ In the legal praxis of the ECtHR, the right has been seen to extend also to corporate entities and not only individuals. Interpreting words, such as home and private life, to only extend to individuals could lead to unjust instances, specifically in regard to governmental authorities conducting raids or other types of investigative activities. As noted by Article 8, interferences are allowed as long as they are done in accordance with law and are necessary in a democratic society.²⁰⁶ It is explicit that the right to private life includes in many situations also corporate entities.

However, unlike the protection of Article 10, the case law regarding the right to privacy in relation to companies is less extensive.²⁰⁷

201 European Court of Human Rights, Autronic AG v. Switzerland, 12 EHRR 485 (22 May 1990).

202 ibid 44.

203 Ibid 47.

204 ibid 150.

205 ECHR (n 116) 8.

206 Ibid.

207 ibid 172.

The right to privacy is not always precisely defined, as it entails a variety of angles such as private life, home, family and correspondence, whether it is by phone, mail or other devices. The right to privacy is still a widely accepted right, with most international treaties and domestic constitutions noting its existence.

It is also a right that does not precisely demand a human being as its holder, and hence juristic persons could also be entitled to the right. The right to privacy can hence be easily placed with business actions and legal entities. For example, the right to privacy typically protects the private internal correspondence in a company. Emails, phone calls and letters have the same level of protection, whether they are between individuals or corporate agents. Typically the right to privacy is considered to apply to a person’s home. The question arises as to whether private commercial buildings are comparable to a private home residence and should they be protected in the same manner from outside interference? In domicile courts, many of the cases concern situations regarding search warrants and inspections of various facilities and offices conducted by governmental agencies. In the US, privacy jurisprudence is a patchwork that does not grant a clear answer for the protection of privacy in relation to commercial structures.²⁰⁸ In cases, such as Hale v. Henkel, and Marshall v Barlow’s Inc., companies have been seen to be able to receive Fourth Amendment protection. On the other hand, some countries are not precise as to whether companies have the right to privacy. In Australia there exists no clear rule on whether companies can claim privacy rights.²⁰⁹

In Niemietz v. Germany, the ECtHR discussed whether a lawyer’s professional office, which was situated in his home residence, would also be included in the protection under Article 8. The ECtHR stated that there exists ‘no reason of principle why this understanding of the notion of “private life” should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world’²¹⁰ and also mentioned that ‘home’ can be extended to business premises. The ECtHR relied on the principle of effectiveness by noting that narrow distinctions could lead unequal treatment.²¹¹ The essential object and purpose of Article 8 permits key words to be interpreted to include elements of business activities.²¹²

Most notably the ECtHR discussed the issue in the Société Colas Est and Others v. France judgment, which discussed a plausible violation of Article 8 under the

208 Elizabeth Pollman, ‘A Corporate Right to Privacy’ (2014) 88 Minnesota Law Review 27, 85.

209 Susan Mccorquodale, ‘Corporations ’ Right to Privacy in Canada and Australia: A Comparative Analysis’

(2003) 15 Bond Law Review 102, 107.s

210 European Court of Human Rights, Niemietz v. Germany, 16 EHRR 97 (16 December 1992) 29.

211 ibid 30.

212 Ibid 31.

Convention. The French government raided the offices of building company Société Colas Est due to an administrative investigation regarding the conduct of public works contractors.²¹³ The investigators raided fifty-six companies under French legal provisions, which did not require legal authorisation or permits.²¹⁴ Société Colas Est claimed that the French authorities had violated the company’s right to privacy by entering their commercial premises. As in the Niemietz v. Germany judgment, the central question was whether commercial premises could be considered a home in the required sense for Article 8 to apply, but unlike the previous case, the offices of Société Colas Est was located at a business premises. The ECtHR did however adjudge that the offices of Société Colas Est were considered protected as a home under the article against governmental arbitrariness.²¹⁵ It did however note that there is ‘an entitlement to interfere’ which ‘may be more far-reaching where the business premises of a juristic person are concerned’.²¹⁶ This statement would lead us to understand that in the case of companies the protection of Article 8 is not as strong as it is for individuals and their right to privacy.