SOME THOUGHTS CONCERNING HORIZONTAL APPLICATION OF CONSTITUTIONAL RIGHTS

By OriKivity - 01 May 2015

One of the underlying propositions of Professor Eben Moglen's Computers, Privacy, & the Constitution course is that in the modern era states are not the only threat to civil liberties. In our contemporary world, private entities violate human rights as extensively and, sometimes more frequently than the state can. Powerful corporations, such as Goggle and Facebook, have collected the most extensive data set ever assembled on human social behavior in ways which undermine longstanding commitments to privacy and civil liberties.

However, under the traditional order, the constitutional task was to protect the individual from state actions. Thus, the history of human rights is that of the recognition of individual rights vis-à-vis the state (vertical effect). The US Constitution, for instance, was drafted with the clear aim to govern the relationship of the state and its citizens (except of the Thirteenth Amendment which prohibits slavery). Yet, in some democracies constitutional rights directly apply onto the relationships between individuals (horizontal effect). This is the case in South Africa, Ireland, Poland, etc., were the Bill of Rights impose direct constitutional obligation on individuals.

Normatively, the question here is whether constitutional rights should have horizontal application and what are the implications of this model. On its face, the possibility of horizontal effect is appealing, since it appears to empower weak individuals in society and better protect civil liberties. However, this theoretical framework raises difficulties which we ought to address.

First of all, we should bear in mind that naturally the scope of individual's autonomy is limited by the scope of another's autonomy. Every right has an obligation correlated with it. One's right to privacy means that others are obliged to respect it. The constitution identifies the most important interests people have, and horizontal effect will require each private actor to take those interests into account. Therefore, granting individual a constitutional rights vis-à-vis another would lead to an additional limitation on human liberty and autonomy.

Secondly, we ought to consider that granting individual a constitutional right vis-à-vis another, will also result in granting the stronger individual with a constitutional right vis-à-vis the weaker individual. Horizontal constitutional order will empower both strong and weak private entities in society (including corporations, in a case they enjoy constitutional rights). Yet, in a reality where stronger private entities have a greater ability to access courts and better realize their rights and privileges – there is again a risk of an unbalanced division of powers within society.

Third implication ought to be considered concerns the transition from private law to constitutional law as the governing norm of private relations. Traditionally, contract, torts, property, family, and other private law rules, shape one individual’s rights vis-à-vis another. Private law, which is usually the creation of the legislative branch, constructed mainly as a set of detailed rules, in order to promote certainty and to enable individuals to plan future actions. Yet, under horizontal constitutional order individuals could sue other individuals for breach of constitutional rights with the aim of being awarded damages or an injunction. Instead of applying relevant private law rules, an individual could argue, for instance, that another individual violated his constitutional right to privacy, while the latter would claim that his action was within the scope of his liberty. This, in turn, would require the development of a system of constitutional remedies parallel to tort law. However, constitutional rights – such as human dignity, liberty, privacy, equality, etc. – are value laden, defined very broadly, and shaped as principles. They do not specify their scope of protection and do not include concrete elements of liability. This loose and vague ground of liability rules will promote more uncertainty regarding the relationship between individuals. Also, by shifting the focus from private law rules to constitutional principles we are placing the courts in a primary rule-making position.

Finally, we also ought to consider that the main relational for granting constitutional status to certain rights is that it is the only way to limit state's legislation from violating these rights. By granting certain rights a superior normative status we subjects regular legislation to constitutional scrutiny. Failure to survive constitutional scrutiny, in turn, may lead to nullification. This is, however, not relevant to the relations between individuals. In order to safeguard human rights from violations of private actors there is no need in granting these rights constitutional status. In this case, regular legislation or case law would suffice. Consequently, there is no reason to grant higher normative status to norms that have the same effect while being in a lower status. Maybe the problem is not the normative status of the rights which govern private relationships but rather the scope of protection which private law provides to individuals. Perhaps a different approach should be adopted, one of positive constitutional rights vis-à-vis the state. Here, instead of imposing constitutional obligations on individuals (horizontal effect) we impose constitutional positive obligations on the state and requiring it to protect us from third parties. Under this approach, instead of directly suing Facebook for violating the constitutional right to privacy (under horizontal order), one could claim that the state violated its positive constitutional duty to protect his right to privacy by allowing Facebook to take certain actions. Upon reflection, although positive right theory raises other issues, it might be an alternative way to safeguard civil liberties from private entities by reclaiming the state's responsibility towards its citizens, without having some of the difficulties mentioned above.

This paper is far from addressing the issue of horizontal effect in full. It also does not reflect a position in which the recognition of this model is methodologically wrong. Rather, my purpose is to touch on some considerations which we ought to take into account in this regard. Overall, it appears that the traditional constitutional order, which is based on negative rights and vertical application, is not sufficient to address contemporary treats to human liberties. Yet, all implications should be considered in the search for the best solution.