CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ INDIRECT OBLIGATIONS OF BUSINESS ENTITIES UNDER THE EUROPEAN CONVENTION… private and family life in the Hatton case. 73 The nuisance caused by a private waste-treatment plant close to the applicant’s housing resulted in a finding of an infringement of Article 8 by Spain in the López Ostra case. 74 There are also examples of disputes relating to defamation proceedings where the state did not properly balance the rights of individuals and private media companies. 75 Article 9 of the Convention (Freedom of thought, conscience and religion) The case of Eweida and Others v. the United Kingdom 76 concerned disciplinary measures imposed by private employees for wearing religious symbols at work. One of the applicants, Ms Eweida was employed by a private company, British Airways. On 20 September 2006, she was sent home from work because of her refusal to conceal her cross in breach of the company’s uniform code. She remained at home without pay until 3 February 2007, when British Airways amended its rules on uniforms and allowed her to display the cross. The Court held that in respect to the period of these four months the British authorities failed to sufficiently protect the applicant’s right to manifest her religion in breach of the positive obligation under Article 9 of the Convention. 77 Article 10 of the Convention (Freedom of expression) In the case of VgT Verein gegen Tierfabriken v. Switzerland 78 the Court dealt with the complaints of the applicant company under Article 10 of the Convention regarding the refusal of a private TV company to broadcast its commercial. The commercial criticised the activity of the meat industry. It showed a noisy hall with pigs in small pens, gnawing nervously at the iron bars and declared that the rearing of pigs in such circumstances resembled concentration camps. The film concluded with the incitement: “Eat less meat, for the sake of your health, the animals and the environment!” 79 The Court stated that freedom of expression constitutes one of the essential foundations of a democratic society and concluded that limitations imposed on it cannot be considered as “necessary in a democratic society”. For that reason, the Court determined there had been a violation of Article 10 of the Convention. 80 Article 11 of the Convention (Freedom of assembly and association) An obligation to join a trade union as condition of employment in a private company was analysed by the Court in the light of freedom of association under Article 11 of the Convention in the case of Sørensen and Rasmussen v. Denmark . 81 The Court observed that the matters about which the applicants complained did not involve direct intervention by the state. However, Denmark’s responsibility would be engaged if these matters resulted from a failure to secure the applicants’ right to freedom of association. The Court also noted that the boundaries between the state’s positive and negative obligations under Article 11 of the 73 Hatton and Others v. the United Kingdom [GC], no. 36022/97, ECHR 2003-VIII. 74 López Ostra v. Spain , 9 December 1994, Series A no. 303-C. 75 See e.g. Von Hannover v. Germany , no. 59320/00, ECHR 2004-VI. 76 Eweida and Others v. the United Kingdom , nos. 48420/10 and 3 others, ECHR 2013(extracts). 77 Ibid. , § 95. 78 VgT Verein gegen Tierfabriken v. Switzerland , no. 24699/94, ECHR 2001-VI. 79 The video of the commercial is available on https://www.youtube.com/watch?v=x-NwXJ17XZ8. Last accessed on 21 June 2016. 80 VgT Verein gegen Tierfabriken case, § 79, ECHR 2001-VI. 81 Sørensen and Rasmussen v. Denmark [GC], nos. 52562/99 and 52620/99, ECHR 2006-I.

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