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The ECHR and ESC do not impose human rights obligations directly on to businesses not carrying out a public function. While individuals cannot directly raise complaints against businesses before the Court or the ECSR, they may, depending on the right adversely impacted, bring claims against States for failing to prevent or address abuses resulting from business-related activities.

Under the ECHR and caselaw of the Court, States may, for example, be expected to be held accountable where they acquiesce or connive in acts of private actors that abuse human rights[1] or when they fail to properly regulate private industry.^[2] The concrete scope and content of State obligations developed through the Court’s caselaw depend to some extent on the human right in question and the factual circumstances. Recommendation CM/Rec(2016)3 on human rights and business states that positive obligations consist of requirements to prevent human rights violations where the competent authorities had known or ought to have known of a real risk of such violations; to undertake an independent and impartial, adequate and prompt official investigation where such violations are alleged to have occurred; to undertake an effective prosecution, and to take all appropriate measures to establish accessible and effective mechanisms which require that the victims of such violations receive prompt and adequate reparation for any harm suffered.[3] A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the State.[4]

The ESC also affords protection against business-related human rights abuses, particularly regarding the rights of workers. Member States that have ratified the ESC should take all appropriate national and international measures to ensure the effective realisation of the rights and principles of the ESC and consider increasing the number of accepted provisions.[5]

Positive obligations under the ECHR may arise in a wide range of situations, such as:

• media businesses interfering with freedom of expression;[6]
• abuses in private hospitals[7] and schools;[8]
• workplace dress restrictions affecting the right to manifest religion;[9]
• providing workers with information to assess occupational health and safety risks;[10] or
• environment-related human rights harms caused by business activities.[11]

Under the ESC, positive obligations may arise, for example, with regard to the right to health under Article 11,^[12] the prevention of forced labour and other forms of labour exploitation,^[13] or taking appropriate preventive measures (information, awareness-raising and prevention campaigns in the workplace or in relation to work) in order to combat moral harassment.^[14]

The Court’s caselaw, in specific circumstances, highlights:

1. positive obligations to regulate and control business operations;
2. procedural positive obligations to enable public participation and informed decision making; and
3. positive obligations to provide effective remedies for business-related human rights violations.

With regard to positive obligations under the ESC, the ECSR has examined the obligations of States to regulate and supervise the conduct of private actors in relation to environment[15], education[16] and energy[17]. The ECSR has highlighted that private sector involvement in relation to ESC rights-related services must not result in the enjoyment or achievement of ESC rights being undermined.[18]
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 Obligations to regulate and supervise business activities

Within the context of their positive obligations as previously explained, States have a duty to protect against human rights abuses by third parties, including business enterprises, and take reasonable and appropriate measures to secure an individual’s human rights. Depending on the circumstances and the specific context of each case, questions arising include whether the national authorities could reasonably be expected to act so as to prevent or put an end to the alleged infringement[19], and whether they took the necessary steps to ensure the effective protection of the applicants’ rights.[20] States have an obligation to provide protection against human rights violations committed by third parties, including commercial enterprises, through mandatory human rights due diligence obligations, effective regulations and oversight mechanisms throughout the AI ​​lifecycle.

States may also be accountable for failure to inform the public about risks of dangerous activities and to issue warnings.[21] In the context of Articles 8 (the right to private and family life) and 2 (the right to life), there is an obligation to provide essential information to the public about dangerous activities involved in the business activity.[22] Moreover, the public’s right to information should not be confined to risks that have already materialised but should count among the preventive measures to be taken.[23]

States should consider whether businesses involved in the AI lifecycle are subject to adequate oversight. The question of whether the State could reasonably be expected to act so as to prevent or put an end to the alleged infringement of the applicant’s rights could apply to State failures to address, for example, “algorithmic bias” or opaque AI decision-making processes. 
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 Procedural positive obligations to enable public participation and informed public decision making

State decisions in relation to business activities – such as granting a licence – may also impact on human rights and so the risks and potential impact should be assessed before decisions are taken. Decision-making processes “concerning issues of cultural, environmental and economic impact […] must necessarily involve appropriate investigations and studies in order to allow [public authorities] to strike a fair balance between the various conflicting interests at stake”.[24] To afford due respect for the interest protected by, for example, Article 8 ECHR, the decision-making process leading to measures of interference should “consider all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals were taken into account throughout the decision-making process, and the procedural safeguards available”.[25] In environmental cases, this requires investigations and studies "to predict and evaluate in advance the effects of those activities which might damage the environment and infringe individuals’ rights”.[26] State regulation “must also provide for appropriate procedures, taking into account the technical aspects of the activity in question, for identifying shortcomings in the processes concerned and any errors committed by those responsible at different levels”.[27]

In the Framework Convention, the principles of transparency and oversight[28] require “openness and clarity in the governance of activities within the lifecycle of artificial intelligence systems and mean that the decision-making processes and general operation of artificial intelligence systems should be understandable and accessible to appropriate artificial intelligence actors and, where necessary and appropriate, relevant stakeholders”.[29]

In order to ensure full enjoyment of human rights and democratic freedoms, Committee of Ministers Recommendation CM/Rec(2020)1 on the human rights impacts of algorithmic systems recommends that States should foster general public awareness of the capacity, power and consequential impacts of algorithmic systems, including their potential use to manipulate, exploit, deceive or distribute resources, with a view to enabling all individuals and groups to be aware of their rights and to know how to put them into practice, and how to use digital technologies for their own benefit. In addition, all relevant actors, including those in the public, private and civil society sectors in which algorithmic systems are contemplated or are in use, should promote, encourage and support in a tailored and inclusive manner (taking account of diversity with respect to, for instance, age, gender, race, ethnicity, cultural or socio-economic background) a level of media, digital and information literacy that enables the competent and critical consideration of and use of algorithmic systems.[30]
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 Obligations relating to the provision of effective remedies

States may be required to provide effective remedies for business-related human rights abuses. This may include amending laws if the legal framework is inadequate[31] and ensuring that businesses comply with domestic law. Of relevance here is the right to an effective remedy (Article 13 ECHR). 
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 Margin of appreciation in the context of positive obligations

It is important to note that States generally enjoy a wide margin of appreciation in deciding how to fulfil their obligations regarding business activities potentially impacting human rights. The margin of appreciation shrinks, however, if State measures interfere with a particularly intimate aspect of the individual’s private life,[32] depending on the seriousness of the threats to the right at issue.[33] Moreover, the onus is on the State to justify, using detailed and rigorous data, a situation in which individuals bear a heavy burden on behalf of the rest of the community.[34]

Thus, while a margin of appreciation in regulating AI technologies in the context of businesses activities is expected, it could be significantly limited when AI systems present serious risks to human rights. 
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