It comes as a great surprise to most people and, indeed, to many commercial lawyers that human rights also apply to commercial companies and their activities. In the past, judges have been reluctant to examine breaches of a company's "human" rights. However, a flood of case-law from the European Court of Human Rights in Strasbourg (not to be confused with the European Court of Justice) is prompting many companies to enter the terra incognito that is human rights.
Article 10 of the European Convention on Human Rights ("ECHR") guarantees freedom of information and Article 1 of Protocol No.1 of the ECHR guarantees a fundamental right of property. These rights are fast being identified as useful weapons to protect company assets and activities. Historically, the Netherlands has not had much patience for "constitutional court actions" but Dutch lawyers have begun to employ these rights as serious arguments and these arguments are being entertained by the Dutch Courts.
The impact of this trend will probably be felt most in the telecommunications and broadcasting sectors. The Dutch Supreme Court has decided that examples of breaches of freedom of information include a broadcasting monopoly (1996) and technical interference with the exploitation of telephone services (call-back services). It has also been held that a government decision to withdraw property regulating licenses can constitute a breach of the fundamental right of property.
Generally speaking, an interference with the freedom of information and property rights may be found to be contrary to the ECHR if such interference is not permitted by law or if the level of interference is out of proportion to the matter it seeks to regulate.
In light of the developing case-law, lower courts are bound to examine such arguments carefully. Lawyers too will need to identify human rights issues arising in more unlikely circumstances.
Important - The information in this article is provided subject to the disclaimer. The law may have changed since first publication and the reader is cautioned accordingly.