5 Jul 2011
Weber, Rolf H.
Human Rights and Unfair Competition
NCCR Trade Working Paper No. 2011/66 by Rolf H. Weber
Although human rights and unfair competition have been part of the legal discussion for decades theirrelations have mostly been analysed from the perspective of commercial communications and not witha view to freedom of economic activities. This paper proposes several conceptual changes. A newconcept has to overcome the notion of the passive role of consumers and consequently the concept oftheir defensive rights. Consumers need to be given an active role in the market place and voice directeconomic choices. Providing for comprehensible information in the market (in the sense of thetransparency principle) is therefore essential. Consequently, consumers must have protective rights,including proactive entitlements to protection (for example through the application of the precautionaryprinciple). Legislators, regulators, and courts are called to define the ‘public’ consumer interests(‘public’ because widely dispersed among the consuming public). Philosophically, an interest that isconverted into a fundamental right ‘trumps’ any opposing, utilitarian interest or policy. Courts need toask the question whether the consumers’ position and role in the contemporary globalized marketswould call for a special degree of legal protection (of a high order). In this regard, basic rights protectioncould become a legal strategy. A further important aspect is the empowerment of consumers. Only ifconsumers are aware of risk assessments and precautionary measures, they can decide to “opt-out” inrespect of eg health or environmental risks.