Volume 2, Issue 3

Over the past decades, transnational corporations (TNCs) have come under increasing public scrutiny for their involvement in human rights violations, particularly in developing countries. One may think of child and slave labour in the supply chain, cooperation with violent or corrupt regimes, and grand scale environmental pollution. Legal protection for victims of human rights violations against TNCs is poor. Public international law protects the freedom of trade but does not regulate the way companies use this freedom. Moreover, it is disputed whether international human rights law can impose obligations on companies. This has triggered the question what role national tort laws can play to fill this protection gap. This article first paints the factual background and the lack of international rules protecting victims of human rights violations (Section I). Section II lists the practical and legal problems victims face if they want to hold a TNC to account (such as fact-finding, forum, and applicable law). Section III provides an overview of tort law claims filed against TNCs in the United States and Europe. Finally, Section IV analyses the standard of care in tort law for a TNC to prevent its involvement in human rights violations, particularly through its subsidiaries and suppliers.

The article examines reputation and defamation of corporate claimants under English and German law and the law of the ECHR. It elaborates on the premise that the presumption of English case law, according to which a trading corporation is in the same position as an individual with regard to a defamation claim, needs refinement and reconsideration. In contrast to individuals, the reputation of a company results exclusively from the conception of reputation as property. As a consequence, the constitutional basis of a company's reputation is article 1(1) of the First Protocol to the ECHR, and not article 8(1) ECHR. Trading corporations are public figures, and therefore speech about them is per se public speech, enjoying considerable freedom of speech protection that has to be balanced against the company's property right on a case-by-case basis.