BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

appears to be problematic under the current law, namely because of the fact that the courts currently do not recognise the possibility of direct application of human rights standards on private actors. If this direct application should be followed it would require the adoption of a new set of rules. Secondly, the market failures over the last decade have undermined the belief in the markets’ ability to generate rules that would respect human rights. 22 The situation of rather limited applicability of duties resulting from voluntary codes of conduct leads us directly to the other duty-bearers in cases where fundamental rights in private law relations are invoked, and it is the state through its positive obligations. 23 The process of constitutionalisation covers both aspects of application of human rights, i.e. not only the issue of corresponding duties, but primarily the concept of fundamental rights themselves. Corporations as right-holders As private entities, corporations are not only bound (as indicated above at least indirectly) to respect constitutional rights. Due to their private-law character, they may avail themselves of constitutional rights. This situation is obviously not without controversy, because classical theories of justification of human rights do not apply to legal persons. Human rights according to most traditional ‘foundational’ theories are rights that are guaranteed to human beings from the perspective of their human nature (vulnerability, dignity, protection of health or life). 24 None of these characteristics belongs to a corporation as an artificial legal person. The main argument why fundamental rights of corporations should be recognized is, in my opinion, the principle of equality. Both natural and juristic legal personalities are after all creations of law. 25 If we acknowledge fundamental rights of legal persons we stress thereby the uniform concept of legal personality. If we turn our attention to a model legal relation between an individual and a corporation, both sides of the legal relation may use their fundamental rights as an argument. In this situation, a connection between both these rights might be described. As mentioned above, corporations have certain duties to respect human rights of other individuals, but at the same time corporations like Facebook, Google, or Twitter may invoke their own constitutional rights, because they are not public authorities but companies operating in the private sphere. If corporations invoke their rights (free speech, right to engage in enterprise, etc.), the possibility of invoking a conflicting right 23 From a number of academic works dedicated to this topic I would mention: ISENSEE, J.: Das Grundrecht als Abwehrrecht und als staatliche Schutzpflicht. In: ISENSEE, J., KIRCHHOF, P. (eds.): Handbuch des Staatsrechts der Bundesrepublik Deutschland. Band IX. Allgemeine Grundrechtslehre . 3 rd ed., Heidelberg: C. F. Müller, 2011, pp. 413-568. 24 BROZ, J., ONDŘEJEK, P.: Human rights limits on state power. In: KYSELA, J. (ed.): State as a Giant with Feet of Clay . Frankfurt am Main: Peter Lang GmbH, 2014, p. 105. 25 BERAN, K. Osoba jako „bod přičitatelnosti“ [A Person as a “Point of Imputation”]. 157 Právník , Nr. 6, 2017, p. 504. 22 Ibid., pp. 97-98. The last argument has been proven even more valid after the last major global financial crisis, which began in 2008.

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