The issue of corporate personhood, which has been bubbling away in the background of the #occupy movement in the United States, received an unexpected shot in the arm from British courts last year, we learnt this week.
The creeping extension of personal rights to corporations has been alarming many in the US, especially following the Supreme Court’s hugely controversial Citizens United decision last year, which struck down bans on political donations by corporations on the basis of First Amendment rights of free speech. The decision, so blatantly pro-business that President Obama attacked it directly in the presence of the court’s justices in his State of the Union address a week later, stirred up the issue of what rights corporations should have.
Then, in August, Mitt Romney added fuel to the fire by declaring: “Corporations are people, my friend … of course they are. Everything corporations earn ultimately goes to the people.” The contrary sentiment crystallised around the placard “I won’t believe corporations are people until Texas executes one” seen in the early stages of the Occupy Wall Street protest, a phrase that instantly caught fire online.
This week, the UK media law blog Inforrm received from TheGuardian a copy of the judgment handed down in the 2009 Trafigura case, in which a super-injunction was imposed by a British court to prevent the revelation of embarrassing material about Trafigura’s dumping of toxic waste in the Ivory Coast, and its subsequent attempts to cover it up. The company’s attempts to prevent the revelations were thwarted by an online campaign involving WikiLeaks and Twitter, and MP Paul Farrelly in the House of Commons.
Buried deep in the judgment, at paragraph 25, is a fascinating judicial observation. Referring to the European Convention on Human Rights, the judge stated:
“It seems to me that insofar as the claimants rely on Article 8, the claimants are likely to establish that the balance falls in favour of that article rather than Article 10…”
Articles 8 and 10 of the European Convention are the central battleground of judicial media regulation in the UK. Article 8 relates to a right to privacy, and Article 10 relates to freedom of expression. In a way, the judge was only stating a commonplace about the clashing imperatives of the Convention. But it’s to whom he was referring that is the key — he was extending Article 8 to a corporation, Trafigura, not the “humans” to which the Convention directs itself.
British Liberal Democrat MP John Hemming, who has aggressively pursued the super-injunction issue and used Parliamentary privilege to identify Ryan Giggs earlier this year, immediately spotted the significance of the comment. “I find it odd that Article 8 Human Rights to Privacy are claimed for a corporation,” he said in a media release. “There are many cases where confidentiality and privacy has been used to conceal matters of clear public interest …”
Hemming intends to find out whether the British government supports the extension of the right to privacy to corporations, which would have a serious chilling effect on media coverage of companies. Watch this space.