Protecting the Freedom of Corporate Commercial Expression and Advertising

Abstract

The European Court of Human Rights (ECHR) has consistently recognized corporationsas entities falling within the scope of protection of the European Convention on Human Rights.The ECHR’s perception of corporations as “beneficiaries” of human rights is subject to criticism forconceptual incompatibility (human rights can only apply to people) and accusations that as long ascompanies refuse to commit to human rights, they should not be able to benefit from their protection).There is a discussion in the scientific literature about the philosophical and legal rationale forgranting corporations human rights. It is clear that human rights are for man. Therefore, they needa philosophical understanding and theoretical substantiation of the issue of extrapolation of humanrights protection to corporations; because corporations have a certain impact on the economic andsocial life of people, people in this context are the weaker sides. What are the consequences?This article will consider the European Court of Human Rights’ approaches to protecting corporationsfor freedom of expression and advertising under Article 10 of the Convention on Human Rights.The main principles of protection of freedom of corporate expression and advertising are: 1) thecorporation has the right not only to protect freedom of expression and advertising, which appliesnot only to “information” or “ideas” that are favorably (positively) perceived by society, but alsothose that are considered offensive or shocking. Such are the demands of pluralism, tolerance andbroad-mindedness, without which there is no “democratic society;” 2) the protection of freedomof expression of corporations is subject to exceptions, which, however, must be interpreted strictly,and the need for any restrictions must be sufficiently convincing; 3) exceptions to the protectionof freedom of expression presuppose the existence of an “urgent social need” which determineswhether a “restriction” is compatible with freedom of expression, which is protected by Article 10 ofthe ECHR; 4) The task of the European Court of Human Rights in the administration of justice is todetermine whether the restrictions were “proportionate to the legitimate aim pursued” and whetherthe grounds given by the national authorities to justify them were “relevant and sufficient.” In doingso, the Court must satisfy itself that the domestic authorities applied standards which complied withthe principles enshrined in Article 10 of the Convention and, in addition, relied on an acceptableassessment of the relevant facts.According to the author, the criteria developed by the ECHR for assessing the protection of theright to freedom of corporate commercial expression and advertising are fair and effective. Given thefact that the European Convention on Human Rights is a living mechanism that should be interpretedin the “light” of modern conditions, the emergence of new improved approaches to determiningthe extent and existence of violations in this area should not be ruled out. It is true that in today’smarketplace, corporations have the right to defend their rights, including freedom of expression andadvertising, and to protect themselves, for example, from unfair competition, when a corporationis “attacked” by unfair accusations or baseless accusations that damage its business reputation. Inaddition, corporations must also respect and respect human rights. According to the author, thecreation of a truly effective mechanism for monitoring the observance of human rights by corporations can balance the weights of “opponents” and “supporters” of recognizing the right of corporations toprotection by referring to the principles of the European Convention on Human Rights.