In contrast to the frequent discussion of the European Court of Human Rights jurisprudence establishing that individual reputation falls within the scope of the Article 8 right to ‘private and family life’, the possibility that corporations could claim a Convention right to reputation – under either Art 8 or Article 1 of Protocol 1 (‘A1P1’), the right to property – has not attracted a great deal of attention from commentators.
But the Court (‘ECtHR’) left open the applicability of both Articles to corporate reputation in its 2014 admissibility decision in Firma EDV Für Sie v Germany (‘EDV’) (Inforrm’s comment on the case is here). Since then, it has also left open the applicability of Art 8 in two decisions on Art 10, both in cases involving defendants in domestic defamation proceedings brought by companies: Magyar Tartalomszolgáltatók Egyesülete v Hungary (‘MTE’) (Inforrm’s comment); and Ärztekammer für Wien v Austria (Inforrm’s comment). In the latter, the Court did not even mention the possibility that the corporate claimant’s reputation might not be protected under Art 8.
English courts have stated more clearly that Art 8 does not protect corporate reputation (Euromoney Institutional Investor Plc v Aviation News Ltd at ), and also seem suspicious of the idea that it is protected by A1P1 (Ajinomoto Sweeteners V Asda Stores Ltd at ). But if the ECtHR unambiguously held otherwise, English courts would be likely to follow its decision.
The existence of a Convention right to corporate reputation might have important implications for English defamation law. Corporate claimants would probably be entitled to enhanced protection for their reputations, which would be presumed to have equal weight to defendants’ speech interests, in line with the Re S approach to conflicts between Convention rights. Further, removing companies’ right to sue in defamation altogether (suggested by some commentators and reform campaigners before the Defamation Act 2013 was passed) might be incompatible with the Convention – as acknowledged by the Joint Committee on the Draft Defamation Bill (para 112).
This post argues that neither Art 8 nor A1P1 protects corporate reputation. The Court should declare clearly that companies do not have a Convention right to reputation at the earliest opportunity, to clarify the situation for domestic courts, and for legislatures considering defamation reform like the Northern Ireland Assembly.
First, it is worth mentioning that corporate reputation is relevant to the Convention in one way – it is permissible under Art 10(2) to restrict the right to freedom of expression for the purpose of protecting a company’s reputation (Steel v UK, ). But that does not mean that corporate reputation is, or should be, directly protected by the Convention. The scope of the protections guaranteed by Art 8 or A1P1 is obviously a separate issue from the permissibility of a restriction on speech under Art 10(2).
The word ‘reputation’ itself only appears in Art 10(2) of the Convention, and was intentionally omitted from Art 8. But in a series of decisions since 2004 the Court has ‘elevat[ed] … “reputation” from a “legitimate aim” referred to in Article 10(2) to a Convention right’ under Art 8 (Heather Rogers). Unfortunately, that case law is notoriously unclear as to the Court’s justification for doing so – and, as Tanya Aplin and Jason Bosland observe, this ‘makes it difficult to predict when matters of reputation engage Article 8’.
As vague as the Court’s reasons for protecting individual reputation under Art 8 have been, it is clear that the values to which it refers when doing so are logically inapplicable to companies (Jan Oster, ‘The Criticism of Trading Corporations’ (2011) 2 JETL 255, 262 [£]). Corporations have no ‘dignity’, emphasized in Judge Loucaides’ concurring opinion in Lindon v France. Nor do they have ‘personal identity’, ‘psychological integrity’, or ‘relations with other human beings’ (Pfeifer v Austria, -). In short, the Court’s case law does not provide any good justification for extending the Art 8 protection of reputation to companies.
In MTE (), the Court noted the differences between the reputational interests of natural and legal persons, and ‘clearly had its reservations as to whether Article 8 ECHR was actually engaged’ by an injury to corporate reputation (Jonathan McCully). Given those comments, it is difficult to see why the question was ultimately left open anyway – and why, in the subsequent Ärztekammer case, Art 8 was presumed to apply to such an injury.
Part 2 of this post will be published later this week
David Acheson is Lecturer in Media Law at the University of Kent’s Centre for Journalism. Email: firstname.lastname@example.org
This post is derived in part from an article published in the Journal of Media Law on 19 April 2018, copyright Taylor & Francis, available here: David J Acheson, ‘Corporate Reputation under the European Convention on Human Rights’ (2018) 10(1) Journal of Media Law 49.