The Corporate Right To Silence And Its Origin: A Comparative Analysis With The US, UK And EU
- IJLLR Journal
- Feb 27
- 2 min read
Nivya Mariam Thomas, LLM (Corporate and Commercial Law), Christ (Deemed to be University), Bangalore
ABSTRACT
The corporate right not to incriminate oneself is an interesting legal problem that is located at the intersection of the constitutional protection against self- incrimination and the corporate personhood doctrine. This article will discuss corporate privilege against self-incrimination and its historical development, starting with the Latin Maxim, “nemo tenetur se ipsum accusare”, and its development from Roman, medieval origins through 17th- century English reforms. A legal analysis is drawn from comparative jurisdictional research on corporate silence rights in India, the United States of America, the European Union and the United Kingdom. The paper employs a doctrinal research methodology and a comparative case law analysis. It also examines the following four research questions to consider: the regulatory framework of corporate silence, comparative analysis of jurisdictions, justification for extending privilege to corporations, and the history of the corporate right to silence. This paper shows that while there are differences between the jurisdictions examined, most Commonwealth jurisdictions refused to extend self-incrimination privilege to corporations on par with natural persons; there was also a recognition of the implications both practically and ethically at the infringement of their limitations on corporate governance and regulatory enforcement; therefore, once corporate silence would be legislated it was most definitely an eye opener for all jurisdictions. If this right is granted, it will be beneficial for the corporations, but it has drawbacks; it will be harmful when whistleblower protection is considered, as all the company needs to do is exercise this privilege when they need to disclose some information about themselves, which could be the main reason for the gap in legislation throughout the jurisdictions.
Keywords: Corporate silence, self-incrimination, the Fifth Amendment, EU Frameworks, UK regulations.
