CYIL vol. 8 (2017)

ALLA TYMOFEYEVA CYIL 8 ȍ2017Ȏ newspaper Akhali Taoba had violated his rights with respect to his private life. The Court in this case found an infringement of Article 8 of the Convention. In the event the Court concludes that the state did not overstep its margin of appreciation and there was no breach of the Convention (in cases where the application was submitted by a business entity), in theory, such a conclusion will signify that the behaviour of the state penalising legal persons is in compliance with the Convention. The question is whether this also means that in order to safeguard human rights in the states a business entity has an obligation to refrain from such conduct in the future. It probably would be going too far to say that finding no violation of the Convention when a business entity lodged an application with the Court in all circumstances requires the profit-making legal person to change its behaviour in order to preserve human rights. On the other hand, when the case relates to the balancing of two human rights 41 and the applicant company is not successful in the proceedings before the Court on the merits, the protection of human rights of others may require the states to discipline a business entity. This would also mean that there could be an indirect obligation for such an entity not to breach the human rights of others. In the case of Delfi v. Estonia, 42 when national courts awarded damages against an internet news portal in defamation proceedings for offensive comments posted on its site by anonymous third parties, the Court found no violation of the Convention. This may lead to the conclusion that withdrawal of offensive comments posted by anonymous readers becomes an indirect obligation of business entities under the Convention. A second example of possible indirect obligations arising for companies from the Convention might be a situation when as a result of a proceeding before the Court, when a business entity is not involved, the state decides to amend its practices or legislation in a way that may influence the position of business entities in the respondent state. This may well be the case when the state was held liable for non-prevention of a certain behaviour of a natural person, but the same actions may have also been carried out by legal persons. For example, there may have been incidents of human trafficking in which both individuals and business entities may be involved. The same applies to terroristic activities where criminal organisations are liable for human rights violations. This situation is very similar to the first example. Thus, the state has a positive obligation to prevent companies from violating human rights 43 in all circumstances. Also, the decision to change the state’s practice or legal order may originate from an activity that is not in compliance with the Convention; not only as a result of conduct of private persons, but also of public authorities. The third situation is related to disputes when the human rights of individuals are breached by business entities acting as a ‘state agent’ . It means that such entities are governed by the state to a wide extent or the state delegated to them some of their functions. In accordance with Chapter II of the Articles on Responsibility of States for Internationally Wrongful Acts 2001 (hereinafter also ‘the ARSIWA’) 44 the general rule is that the only

41 Editions Plon v. France , no. 58148/00, § 48, ECHR 2004-IV. 42 Delfi AS v. Estonia [GC], no. 64569/09, ECHR 2015.

43 Beyond Voluntarism. Human rights and the developing international legal obligations of companies. The International Council on Human Rights Policy. February 2002, p. 51. Available online: http://www.ichrp.org/ files/reports/7/107_report_en.pdf accessed on 9 June 2017. 44 Articles on Responsibility of States for Internationally Wrongful Acts. Yearbook of the International Law Commission , 2001, vol. II (Part Two).

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