In Conversation With Dr. Claiton Fyock: International Investment Law as Development

Aerial view of Favela da Rocinha, Rio de Janeiro (image via Shutterstock)

Dr. Claiton Fyock is a Lecturer in Law at the University of Essex. He researches International Economic Law and Development from critical methodologies. He teaches Trade, Investment, Human Rights and Environment; Jurisprudence; and Human Rights. Claiton recently concluded his PhD thesis ‘International Investment Law as Development: The Ideological Constraint of the Grand Bargain.’ and is interviewed for the ELR Blog about the originality of his research, his PhD journey and his future plans.

In two sentences, what is your thesis?

My thesis examines how the narrative of the ‘grand bargain’ found in International Investment Law (IIL) constrains the legal and political economic agency of developing states participating in the regime.

The grand bargain posits that, in ceding a portion of their regulatory sovereignty to IIL, developing states signal to foreign investors that they are committed to the legal protections offered by the regime, which is presumed to benefit developing states by encouraging further Foreign Direct Investment (FDI) to enter their borders.

How did your research emerge?

I came to this research out of a deep skepticism about the project of international economic law prompted by engagement with Marxist theory and Third World Approaches to International Law. I was and remain very interested in how international law helps entrench and reproduce the current exigencies of inter- and intranational wealth inequality and environmental degradation – exigencies that are particularly felt in the Global South.

My intuition was that international law’s role in the reproduction of human and environmental exploitation was perhaps most readily apparent in its involvement at the sites of economic production (sites increasingly located in the Global South). IIL seemed to be the most obvious point of departure for this reason, and the more I researched the topic, the more IIL’s constraint on developing states’ legal and political economic agency became apparent.

How would you describe your argument and methodology?

The thesis questions the rationale of the grand bargain by developing a theory of ideology critique I label the ‘ideological process’. This method attempts to account for how developing states are simultaneously constrained by both the conceptual and practical elements of IIL.

I argue that, rather than being purposed for the legal protection of foreign investment, the raison d’etre of IIL is the facilitation of the accumulation of capital for a transnational capitalist class. It does this largely through a narrative about development embodied in the notion of the grand bargain. Though the grand bargain’s discursive weight has waned in recent years, coinciding with contestation over the regime’s ability to encourage FDI, it remains that international organisations continue to promote FDI and IIL as necessary factors in developmental initiatives such as the Sustainable Development Goals.

My thesis argues that, through the practice of international arbitration, treaty-making and scholarly engagement, IIL’s features embody and entrench the hegemonic, specifically capitalist concepts put forth by the regime’s more powerful actors.

Consequently, the capitalist iterations of features such as development’s role in the definition of investment, sovereignty in cases of indirect expropriation and consent in investor-state contractual disputes circumscribe the plurality of these same concepts.

By accepting the narrowly capitalist iteration of these concepts in their participation in IIL, developing states accept a circumscribed agency in configuring their own political economic and legal policies.

What is your contribution to research in your subject area?

My contribution to the subject area is two-fold:

First, I provide an original approach to ideology critique and international law. While ideology critique is a long-standing Marxist approach to legal analysis, previous uses of the method have either been preoccupied with a fixed definition of ideology or overly focused on power’s discursive role in entrenching ideological practices.

My approach is to treat ideology as a dynamic process which accounts for both the relationship between practice and concept and the impact hierarchical power relations have on the relationship between practice and concept. By approaching ideology this way, I am able to demonstrate how the operation of IIL reifies and entrenches particularly capitalist iterations of some of IIL’s most fundamental concepts – development, sovereignty and consent.

My hope is that this method would be applicable across various areas of international law and provide scholars a new way of apprehending ideology in legal practice.

Second, my thesis places IIL’s justification for itself (the grand bargain) within the context of global concerns about wealth inequality and environmental harm while not relying on competing legal norms or criticisms of neoliberalism. While there have been many effective criticisms offered against the regime from disciplines such as human rights (several fine examples originate from here at the University of Essex), my research attempts to locate IIL’s inherent deficiencies at the level of the capitalist political economy.

I take an explicitly radical approach which contends that the problems identified with IIL are intrinsic to its explicitly capitalist operation – it will only ever reproduce capitalist practices and concepts; practices that will only ever facilitate the accumulation of capital for a transnational capitalist class. Accordingly, efforts at its reform are misplaced; IIL’s problems are intrinsic to the structure of the regime itself. Implicit in my argument is that nothing short of abandonment will rectify IIL’s harms.

However, this need not be of concern for states or practitioners of international law. There is not a fixed necessity for any one of IIL’s practices or conceptual formulations. Rather, effort should be focused on how international law can meet the needs of communities and the environment in ways alternative to the capitalist political economy.

Has your view of your research topic changed during the research?

I wouldn’t say that my view of IIL has changed. It has certainly, obviously become much more nuanced, but I believe my original intuition about IIL’s role in the previously mentioned problems of wealth inequality and environmental degradation has remained.

What has changed over the course of my research is my understanding of the pliability of international law and its scholarly discourse. Early in my research I had a tendency of viewing IIL as a fixed thing. Over the course of the PhD, I was constantly reminded how swiftly things can change in a regime such as IIL – for example, the discourse about sustainability has exploded in the scholarship over the last 5 years.

What would you advise someone who is about to embark on a PhD journey in your field?

I have a hard time thinking that there is any kind of universal advice for embarking on a PhD in international law. One thing I’m happy I did consistently throughout the process was read outside the field of law, particularly theory. I do think legal research can become very insular. I very much believe that there is a lot to be gained from venturing outside of this silo and embracing multidisciplinary approaches.

In doing so, we’re better able to identify potential alternatives to legal practices that might bring about the kind of progressive changes I believe are needed with issues such as wealth inequality or environmental degradation.

Now that you submitted your thesis, how do you plan to move forward in terms of your research?

While writing my thesis I had the opportunity to publish a side piece on international economic law and degrowth and some polemics on climate litigation and corporate actors. I plan to continue to investigate the nexus between international economic law, development and the environment with some upcoming articles.

After the publication of these works, I hope to revisit and transform my thesis into a monograph and look forward to submitting the book proposals after some time off from it.

The Online Safety Bill: Where Are We Now and Will It Succeed?

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The House of Lords is currently debating at Committee Stage the Online Safety Bill, a landmark piece of legislation which introduces a new set of internet laws to protect children and adults from online harms.

The Bill will establish a regulatory framework for certain online services. These include user-to-user services, such as Instagram, Twitter and Facebook, and search services, such as Google.

The UK government’s stated aim in introducing the Bill is “to make Britain the best place in the world to set up and run a digital business, while simultaneously ensuring that Britain is the safest place in the world to be online”.

The BIll will place duties of care on both regulated user-to-user service providers and regulated search service providers. The regulated service providers would have duties relating to, among other things: (a) illegal content; (b) protecting children; (c) user empowerment; (d) content of democratic importance, news publisher content and journalistic content; (e) freedom of expression and privacy; and (f) fraudulent advertising.

The Bill also does two other distinct but interconnected things. It introduces age-verification requirements in relation to pornography providers (which are not user-to-user); as well as new criminal offences, e.g., encouraging self-harm and epilepsy trolling.

This makes it a long, wide-ranging and complex Bill.

Moreover, the Bill will place more responsibility on technology giants to keep their users safe. It will give Ofcom, the UK’s communications regulator, the power to levy fines against non-compliant providers, and would make senior managers liable to imprisonment for not complying with a direction to provide Ofcom with information.

But what impact is the BIll expected to have? What concerns are there about the implementation of this new regime?

Prof. Lorna Woods (Professor of Internet Law, University of Essex), who devised the systems-based approach to online regulation that has been adopted by the Government and whose work is widely regarded as laying the groundwork for the UK’s Online Safety Bill, was recently interviewed on this new regulatory approach.

Photo by Austin Distel via Unsplash

On 11 May 2023, Prof. Woods stepped inside BBC Radio 4’s Briefing Room to be interviewed by David Aaronovitch. She talked about what is actually in the Bill, how the new internet laws are intended to work and what potential weaknesses still remain. The programme can be accessed here.

Prof. Woods also joined Conan D’Arcy of the Global Counsel tech policy team to talk about the UK tech regulation, discuss recent criticisms of the Online Safety Bill, as well as the regulation of generative AI tools like ChatGPT. You can listen to the podcast here (published on 17 May 2023).

New Standards Code launched by press regulator IMPRESS

Photo by Jon Tyson on Unsplash

By Alexandros Antoniou, Essex Law School

On 16 February 2023, the press regulator IMPRESS launched its new Standards Code, with key changes including guidance on AI and emerging technologies, stricter measures on tackling misinformation, stronger safeguarding guidelines, and a lower discrimination threshold.


IMPRESS is the only British press regulator to have sought formal approval from the Press Recognition Panel (PRP). The Panel was established in the aftermath of the phone-hacking scandal to ensure that any future press regulator meets certain standards in compliance with the Leveson report recommendations. IMPRESS is distinct from the Independent Press Standards Organisation (IPSO), Britain’s other press regulator which enforces the Editors’ Code of Practice but does not comply with the majority of the Leveson report’s independence requirements. IPSO regulates some of the more established UK press (e.g., the Mail newspapers, the News UK titles and their respective websites), whereas publishers regulated by IMPRESS tend to be newer and more digitally focused (e.g., Bellingcat, Gal-dem and The Canary). IMPRESS is viewed by some media campaigners (e.g., Hacked Off) as “the most popular” complaints-handling body in the country. Its membership has risen from just 26 publishers in 2017 to 113 today.

The IMPRESS Code was first published in 2017 with the aim of guiding media professionals and protecting the public from unethical news-gathering activity. It applies to all forms of news delivery, including print publications, news websites and social media, and to any individual or organisation gathering information and publishing news-related content. As the media landscape has rapidly evolved in the last few years, changes were introduced in February 2023 to help build trust and improve accountability in the industry, while covering a more diverse range of digital news creators (including publishers, editors, journalists, citizen journalists, reporters, bloggers, photojournalists, freelancers, and content creators) and their practices.

Some key changes

A major change concerned the issue of inaccurate content and was propelled by the challenges faced in distinguishing true information from misinformation and disinformation, including that generated by AI. To help journalists and publishers ensure that their material is supported by verifiable and legitimate sources, the Code and its associated Guidance on Clause 1 (Accuracy) and Clause 10 (Transparency) provide advice on fact checking and source verification, particularly within an online context. Specifically, the Code now requires publishers to exercise human editorial oversight to ensure the accuracy of any AI generated content, clearly label such content, and take reasonable steps to limit the potential spread of false information (deliberately or accidentally) by verifying the story with other sources and checking the information against other reliable sources.

Changes were also introduced in relation to the coverage of news stories involving children. They all acknowledge children’s media literacy, autonomy, and protections that are necessary to develop them as people. The revised Code defines a child as anyone under the age of 18 and places an obligation on publishers to “reasonably consider” requests from children to remain anonymous during news-gathering and publication (Clause 3.3), as well as requests from those under 18 when the article was published to anonymise that news content in the present day (Clause 3.4). This is a welcome recognition of the proposition that individuals should not be adversely affected later in life because stories that concern them as children remain widely available online. Importantly, under the new Code, an appropriate adult cannot veto a child’s refusal or revocation of consent (paragraph 3.1.2 of the Guidance to the Code).

Because of the internet and social media, publishers must also take extra care not to identify children indirectly through “jig-saw identification”, i.e., the ability to work out someone’s identity by piecing together different bits of information supplied by several features of the story or across articles or news outlets (the same can apply to adults, e.g., in cases where victims of sexual offences enjoy anonymity by law). The Code (Clause 3.2) requires publishers to consider using techniques or practices that remove identifying data (e.g., the area of a city where they live, their parents’ occupations or other unusual details that could lead to a child’s identification). This practice also helps publishers comply with minimum use requirements under data protection law.

Another significant change concerns the provisions on discrimination under Clause 4. The previous version of the Code stated that publishers would be found in breach if they incited hatred “against any group … [on any] characteristic that makes that group vulnerable to discrimination”. This reflected the legal standard under UK law, but it was not adequately enforced, particularly online. The revised Code holds publishers to stricter standards. Clause 4.3 reads: “Publishers must not encourage hatred or abuse against any group” based on those characteristics (emphasis added). The new wording lowers the threshold for what IMPRESS regards as discriminatory coverage and takes into account its potential effect not just on the communities, but on the society as a whole. This change, according to IMPRESS’ Deputy Chief Executive Lexie Kirkconnell-Kawana: “accounts for prejudice that could be more insidious and be more cumulative or more thematic, and not a direct call to action or violence against a group of people – because that’s an incredibly high threshold, and it’s not often how news is carried. You don’t see headlines saying […] ‘Take up arms against x group’.”

Clause 7 on privacy highlights that, when determining the privacy status of the information, publishers must give “due consideration to online privacy settings” (Clause 7.2(b)). Public interest justifications may, however, apply. The provision challenges the widely held misconception that information found or posted online is automatically made public or free to use. The Guidance to the Code acknowledges that an individual’s expectation of privacy may be weaker where no privacy settings are in place but clarifies that the absence of privacy settings will not necessarily prevent a breach of this Clause. It does not automatically mean that an individual consents to publishers or journalists publishing their content, which may reach an entirely different – or even wider – audience than the audience usually viewing the content on that individual’s account (paragraphs 7.1.4 and 7.2.6 of the Guidance to the Code).

Editorial responsibility and accountability with an outlook to the future

The new Code is the outcome of an intensive two-year review process, which involved consultation with academics, journalists, members of the public and industry stakeholders. Richard Ayre, Chair of IMPRESS, stated: “With more news, more sources, more publishers, more opinions than ever before, the opportunities for journalism are limitless. But nothing’s easier for a journalist to lose than public trust. This new Code sets the highest ethical standards for IMPRESS publishers, large and small, and whatever their point of view, so the public can confidently engage with the news of today, and tomorrow.”

This article was first published on the IRIS Merlin legal database. The original piece can be viewed here.

Illegal Migration Bill: Essex Law School experts on the international system of protection against arbitrary detention express concerns in their written evidence to the JCHR

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On 5 April 2023, Dr. Sabina Garahan (Lecturer, Essex Law School) and Dr. Matthew Gillett (Senior Lecturer, Essex Law School submitted evidence to the Joint Committee on Human Rights (the “JCHR”) as part of its legislative scrutiny of the Illegal Migration Bill. Their submission focused on detention-related questions posed by the JCHR.

Dr. Garahan recently completed her AHRC-funded research on the right to liberty under European human rights law. Dr. Gillett is the Vice-Chair of the UN Human Rights Council’s Working Group on Arbitrary Detention (the “Working Group”). The submission expresses shared concerns that the proposed legislation conflicts with fundamental protections against arbitrary detention set out in the European Convention on Human Rights (the “ECHR”) and the International Covenant on Civil and Political Rights (the “ICCPR”).

The authors’ submission identifies several areas in which the Bill conflicts with the right to liberty as enshrined in Article 5 of the ECHR. Importantly, it raises the possibility that the UK Government may be the first Council of Europe Contracting State in history to be found in breach of Article 17, which prohibits the destruction and excessive limitation of ECHR rights.

Dr. Garahan’s and Dr. Gillett’s written evidence equally highlights the potential breach of Article 18 in conjunction with Article 5, on account of the likelihood that the legislation was introduced in bad faith under the ECHR – namely, on the basis of aims not listed under Article 5. Immigration detention that is predominantly imposed on grounds other than those permitted by Article 5 will be found to violate Article 18. The Government’s documented anti-migrant rhetoric, which has sparked significant concerns among international expert bodies, and the expedited passage of the Bill through Parliament strongly indicate the existence of bad faith.

Finally, the submission addresses likely violations of Article 9 of the ICCPR, which protects against arbitrary detention in a range of contexts including immigration-related processes, as held by the Working Group. In introducing discretionary powers to detain anyone suspected of entering the UK unlawfully, for such period as is “in the opinion of the Secretary of State” reasonably necessary (namely, without any time limit), the Bill undermines the exceptionality and necessity limitations of immigration detention.

Dr. Garahan and Dr. Gillett are members of Essex Law School/Human Rights Centre and the Essex Constitutional and Administrative Justice Institute. Their full submission can be accessed on the JCHR website here and a copy can be downloaded from our ELR Blog below.

A Proposal for a Policy and Structural Change in the Interpretation and Application of the International Criminal Court’s Principle of Complementarity for the Achievement of Victim-oriented Justice

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Dr. Miracle Chinwenmeri Uche concluded her PhD programme under the supervision of Professor Lars Waldorf, Dr. Marina Lostal and Dr Clotilde Pegorier. Her thesis is titled ‘Victim-oriented Complementarity is the Key: A Proposal for a Policy and Structural Change in the Interpretation and Application of the International Criminal Court’s Principle of Complementarity for the Achievement of Victim-oriented Justice’.

The thesis examined the International Criminal Court (ICC) principle of complementarity through the lens of victim-oriented justice, i.e., justice that considers and accommodates victims’ needs and interests procedurally and substantively within the limits of criminal justice processes.

Complementarity, the chosen form of jurisdictional relationship between the ICC and its States Parties, is key to the Court’s existence and sustainability. It is inter alia a tool for deciding who between the ICC and states, can exercise jurisdiction over war crimes, crimes against humanity, genocide, and aggression (core international crimes).

For victims of core crimes, complementarity is much more than that; it has implications on whether justice will be served, who will investigate and where necessary prosecute — the ICC or states? Where will these proceedings take place, in The Hague or in domestic jurisdictions? Which victims can participate? How will justice be shaped?

Given the centrality of the principle of complementarity to the Rome Statute system, the thesis’ main aim was to propose ways for turning complementarity into a fulcrum for the pursuit of victim-oriented justice in the Hague and fostering the same in domestic jurisdictions.

For this purpose, the thesis asked two main research questions; firstly, how has the ICC interpreted and applied the principle of complementarity in relation to victims? Secondly, how can victims’ interests be adequately accommodated in the complementarity regime and process to aid the ICC in the fight against impunity and in achieving victim-oriented justice? To address these questions, the thesis analyzed the ICC’s complementarity, and victim jurisprudence using the doctrinal research method.

In response to the first research question, the thesis argued that victims’ needs, and interests were minimally considered in the development of the principle of complementarity; the focus was on sovereignty protection and prosecutorial issues. This is replicated in complementarity provisions within the Rome Statute, the ICC’s case law and practice. Admissibility determinations at the ICC tend to focus on issues of investigations and prosecutions of a small number of situations and cases, and the exercise of jurisdiction by the Court or states. This problem is exacerbated by the structure of the ICC’s main complementarity body — the Jurisdiction, Complementarity and Cooperation Division (JCCD) which does not include a victims’ representative. The thesis argued that sustaining a sovereignty and prosecutorial-focused approach to complementarity will circumscribe, if not eclipse the ICC’s ability to pursue victim-oriented justice and galvanize states to do the same.

Thus, in answering the second research question, the thesis argued that a re-interpretation of the principle of complementarity and the creation of an independent, inclusive ICC complementarity body are crucial to ensuring that victims’ needs, and interests are adequately considered and accommodated throughout all stages of proceedings.

The thesis’ original contribution is twofold; it outlines a reinterpretative framework for the introduction of victims’ needs and interests into admissibility determinations by the ICC. It is the first study to propose a design for an inclusive, neutral, and independent ICC complementarity division based on the existing Rome Statute regime.

The thesis also contributes to the discussions of ways in which the ICC’s relationship with African states and the African Union can be improved in the interests of victims, and the role this can play in bringing the Rome Statute closer to becoming a universal treaty.

Dr. Miracle Chinwenmeri Uche is now employed as a Lecturer at the University of Exeter. She is currently working towards publishing a monograph and journal articles from her thesis to apply her proposals to ongoing situations and cases before the ICC. She intends to further investigate the potential impact of a new and improved complementarity mechanism on victims, the ICC’s work, and workload.

Legal Analysis of the Illegal Migration Bill 262 2022-23 – Clauses 21-28 (Modern Slavery)

Photo by Hussain Badshah on Unsplash

By Marija Jovanovic, Essex Law School

On 7 March 2023, the UK Government introduced the Illegal Migration Bill with the stated purpose to “prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes.” The Bill introduces provisions that would amend immigration, asylum, and modern slavery legislation.

Dr Marija Jovanovic conducted a legal analysis of the modern slavery clauses in the Illegal Migration Bill. The analysis has been commissioned by the Modern Slavery and Human Rights Policy and Evidence Centre (Modern Slavery PEC), which in turn is funded and supported by the UK Arts and Humanities Research Council (AHRC).

Dr Marija Jovanovic is the author of State Responsibility for ‘Modern Slavery’ in Human Rights Law (Oxford University Press, 2023).

The Explainer and the legal analysis can be read in full here.

OFCOM Reports on Its First Year of Video-Sharing Platform Regulation

By Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

Ofcom, the UK’s communications regulator, published its first report on video-sharing platforms (VSPs) since becoming the statutory regulator for such platforms established in the UK. This is the first of its kind under the VSP regime and reveals information previously unpublished by in-scope regulated companies.

Platforms’ compliance with the new VSP regime

Ofcom’s report outlines the regulator’s key outcomes from the first year of regulation (October 2021 to October 2022). Its findings stem from the use of the regulator’s statutory powers under section 368Z10(3) of the Communications Act 2003 to issue enforceable information requests to all notified VSPs.

Specifically, some platforms made positive changes to their systems and processes in light of new VSP requirements, e.g., TikTok’s dedicated online safety committee to provide oversight of content and safety compliance, Snapchat’s parental control feature, and OnlyFans’ age assurance tools for all new UK subscribers. However, Ofcom found that platforms provided limited evidence of how well their user safety measures operate, blurring as a result their effectiveness and consistency. It also emerged that some platforms are not adequately resourced, equipped and prepared for regulation. There is a clear need for some of them to improve the quality of their responses to the regulator’s information requests. Moreover, Ofcom found that risk assessment processes were not prioritised by platforms, despite their importance in proactively identifying and mitigating safety risks. Risk assessments, however, will be a requirement on all regulated services under future online safety laws that will eventually supersede the VSP regime. Finally, some adult VSPs’ access control measures were not found to be sufficiently robust in preventing children from accessing pornographic content.

Moving towards the second year of the implementation of the regime, Ofcom will dedicate most of its attention to the comprehensiveness of user policies (also known as Community Guidelines), including their application and enforcement; the availability of appropriate tools empowering users to tailor their online experience; and the implementation of suitable age verification (AV) mechanisms to protect children from harmful online content, including pornography.

To increase transparency of platform processes and raise awareness of how VSPs protect against harmful content, Ofcom’s report also sets out the measures adopted by some platforms to protect their users. The following platforms were reviewed in particular: TikTok, Snapchat, Twitch, Vimeo, BitChute, and some smaller VSPs including Fruitlab, ReCast Sport and Thomas Cook, as well as smaller adults VSPs like AdmireMe, FanzWorld and Xpanded. The report explains the governance processes within each regulated service (giving detail on their systems for online safety risk management) and the journey followed by users/ subscribers on each of these platforms.

Additional sets of research

Ofcom also made available a report on the VSP Landscape in the UK, describing the context in which providers apply protection measures. The report offers insights into: (a) who the notified VSP providers are; (b) how many users of VSPs there are in the UK and their demographics; (c) what the main business models used by VSP providers are; and (d) what information VSP providers make publicly available in their transparency reports.

With the aim of building its evidence base around the appropriateness of certain protection measures, Ofcom commissioned further sets of research to understand people’s experiences of using (and attitudes towards) safety measures on VSPs. The research explored a range of users’ perspectives, from parents (or carers) of children aged 6-17 to users of porn platforms.

More specifically, the VSP Parental Guidance Research looked at parents’ attitudes towards children’s online behaviours. In summary, it found that parents tended to perceive VSPs generally as having a constant and unregulated stream of content. Based on their current understanding and the information available to them, six in ten parents said they did not use parental controls on the VSPs that their child uses, because their child “did not need them”. Just over half of parents remembered seeing or receiving guidance on how to keep their child safe online from multiple sources (government websites being the most trusted). However, the study revealed that the process of finding information on online safety was described by many parents as overwhelming and often only prompted by a specific incident (e.g., school guidance, discovering their child was looking at inappropriate content). Parents were also appreciative of safety guidance from VSPs that was clear, digestible, accessible, and easy to understand.

An additional set of research, i.e., Adult Users’ Attitudes to Age-Verification (AV) on Adult Sites, found that, although there was broad support from adult participants for age assurance measures to prevent under-18s from accessing online pornography, UK adult sites were not doing enough to protect children. The biggest adult video-sharing site, OnlyFans, introduced new age verification in response to regulation (using third-party tools) but smaller sites based in the UK did not have sufficiently robust access control measures. Subscriber sign-on processes show that smaller UK-established adult VSPs have AV measures in place when users sign up to post content, but users can generally access adult content simply by self-declaring that they are over 18. Ofcom’s research showed that 81% of participants accepted AV measures where these were expected in general (e.g., whilst purchasing alcohol online or participating in online gambling). A similar proportion (80%) felt Internet users should be required to verify their age when accessing pornography online, especially on dedicated adult sites. The use of a credit card was the preferred means of AV for paid access to pornography. Serious concerns were expressed by participants about how user data might be processed and stored during AV processes to access pornography, reflecting a very low level of trust in the data privacy practices of adult sites.

These findings will inform Ofcom’s regulation of VSPs, including the rules on the protection of children, and its engagement with notified providers.

This article was first published on the IRIS Merlin legal database. The original pieces can be viewed here.

“The revolution will not go better with Coke”: Commemorating Sri Lanka’s 2022 Protest Movement

Sujith Rathnayake in his temporary studio holding a sign from GotaGoGama, August 2022. Photo by Lars Waldorf.

By Lars Waldorf, Essex Law School and Nilanjana Premaratna, Newcastle University

“Come, join us in jail!” read the invite to Sri Lankan artist Sujith Rathnayake’s exhibition-cum-provocation, “crisis and struggle” (8 – 15 February 2023). Indeed, a visitor to the Lionel Wendt Art Gallery in Colombo was quickly confronted by a police bus door, a remand cell gate, and paintings of fallen protesters. 

The exhibition was a timely riposte to a bankrupt regime’s lavish-under-the-circumstances Independence Day celebration on 4 February. It also was a timely commemoration of the Aragalaya (“struggle” in Sinhala), the mostly peaceful protest movement that upended the country from March to August 2022. Most importantly, though, it was a timely wake-up call to Sri Lankans that many more of them – not just Tamil and Muslim minorities or human rights activists – are now vulnerable to abuses of the Prevention of Terrorism Act.

When we met Rathnayake last September at his temporary studio, he was surrounded by art, posters, and detritus salvaged from the art gallery he helped set up at GotaGoGama, the protest village (gama) on Colombo’s seaside promenade and named after the rallying cry for President Gotabaya (“Gota”) Rajapaksa to go. 

There, we saw a neo-expressionist painting of a protester on the ground holding a sign proclaiming “People’s Sovereignty.” 

At the exhibition, the canvas was set into a large, rusting iron frame with words riveted on the top (“Prevention of Terrorism Act 1979”) and the bottom (“Enforced also during the economic crisis of 2022”). When we asked him about this, he explained:

I used metal frames to show how we are restricted and trapped by this old, rusted, outdated Act. … to show how state terrorism makes all of us who are subjected to it vulnerable.

The (re)framing also captures what happened when the hopeful, prefigurative politics of the Aragalaya collided with a 43-year old law that legalizes state repression. 

“You Can’t Beat the Feeling”

At heart, the Aragalaya was a protest movement against an unprecedented economic crisis brought on by the ruling Rajapaksa family’s corruption, profligacy, and mismanagement. Faced with severe shortages of food, petrol, electricity, and medicines, thousands of ordinary citizens – many of whom had enthusiastically voted the Rajapaksas back into office in 2019 – started calling for their removal. 

On 9 April 2022, tens of thousands came together under the hashtags #OccupyGalleFace and #GotaGoHome at a site of political significance and potent symbolism. Galle Face is bounded by the Presidential Secretariat to the north and a hulking statue of Former Prime Minister S.W.R.D. Bandaranaike to the east. Bandaranaike’s 1956 Sinhala Only Act laid the groundwork for a brutal, 26-year civil war between the majority Sinhala government and minority Tamil separatists that ended in 2009 with the then Rajapaksa government’s defeat of the Tamil Tigers amidst war crimes and crimes against humanity. Galle Face also reflects Sri Lanka’s highly indebted and highly unequal economic situation, hemmed in by a Rajapaksa construction boom gone bust: a luxury shopping mall and high-rise Shangri-La Hotel on one side and the Chinese-financed Port City on the other. 

On 9 May, violence first erupted when Rajapaksa supporters rampaged through GotaGoGama and other protest sites, beating protesters and destroying structures, including the art gallery. Some protesters retaliated with violence, but, by the end of the day, Prime Minister Mahinda Rajapaksa had resigned. A month later, on 9 June, former Finance Minister Basil Rajapaksa resigned as an MP. Another month later and another Rajapaksa brother made an exit. On 9 July, thousands of protesters stormed the President’s residence – though some couldn’t resist a dip in the pool. Four days later, Gota was finally gone (first to the Maldives and then on to Singapore, before quietly returning some months later). Stepping up to take his place was Ranil Wickremesinghe, a political fixture who had already done five stints as Prime Minister and whose house had been burned down on 9 July

GotaGoGama quickly rebranded itself as RanilGoGama. Despite his neo-liberal, technocratic reputation, the new President called protesters “fascists” and “terrorists” on national television. Less than 24 hours after his swearing-in, he had thousands of security forces clear protesters from the Presidential Secretariat and a large swathe of Galle Face Green in the early morning hours of 22 July. The government’s own human rights commission called that action “a total violation of the fundamental rights of the people by the executive.” A subsequent police order forced protesters to dismantle the remaining structures by 10 August. Since then, the government has used the Prevention of Terrorism Act to detain and prosecute protesters – even though Wickremesinghe, in an earlier liberal incarnation, had pledged to repeal that law.  

The Aragalaya may have lasted only about 124 days, but it accomplished something previously unthinkable in Sri Lankan politics: the removal of a sitting prime minister and president – the strong-man Rajapaksas no less – through popular protest. While the movement has been criticized for not paying more attention to minority grievances and demands, it did make important, symbolic efforts to bridge ethnic divisions that the Rajapaksas were only too happy to exacerbate and exploit. At GotaGoGama, people of different faiths came together during Ramadan to help with evening meals to break the fasting. More remarkably, people of different ethnicities at the protest site held a commemoration ceremony for the thousands of Tamils killed and disappeared during the final phase of the civil war – the first public commemoration ever held in the capital.  

The Aragalaya was many things to many different participants and observers. We would argue that it was – in part – a Sri Lankan variant of the inclusive populism that appeared in earlier Occupy movements and that has been theorized by Chantal Mouffe. And, just as in those earlier movements, artists and “artivism” played a key role” in building a shared aesthetic of political and affective solidarity.  

“Things Go Better with Coke”

Rathnayake hails from the rural south – a strong-hold of Sinhala-Buddhist nationalism and the Rajapaksa family’s power base – but his politics have always been reliably left-wing. By contrast, his art is confoundingly unpredictable: he shifts between high and low art, gallery and street art, individualist and relational aesthetics, charcoal line drawings and impasto acrylic paintings, and Pop Art and Neo-Expressionism. In one of his Pop Art homages, Ka-Ga-Ja 10 (2004), he critiques the Sri Lankan fetishization of artistic authenticity, high art, political repression, and global consumerism by layering different signages against the familiar white on red swoop of a Coca-Cola sign. This work later featured in an exhibition of Sri Lankan “artful resistance” in Austria and Germany.

Rathanayake’s artistic resistance took on a more collective and participatory form when he helped establish the GotaGoGama Art Gallery. As he told us:

There are lawyers, doctors, trade unions, journalists … who set up their own tents here. I came here for the first time as a painter to represent my profession. My task here is to paint things relevant to the protest.

The gallery served several functions. It made posters, banners, and billboards for the protest, “represent[ing] their fighting slogans as art.” It gave free art classes. It “provided something for people to do when they came to the protest site.”  And it raised awareness of art: “The aesthetic appreciation of art seeps into society along with people’s conceptualization of the protest through art.” 

Rathanayake didn’t just manage the gallery, he also lived in a tent at GotaGoGama. He talked about the difficulty of doing his own art under such conditions: the heat, the noise, the constant interruptions, and, of course, the attack on 9 May.

I’m not someone who cries easily but … I couldn’t help but cry when I saw the gallery burning. Only one of my paintings was burnt but there were many burnt that others had drawn. … As a painter I cannot approve burning of art, whether it is at Galle Face or at Ranil’s house.

He rebuilt the gallery with help from other artists and GotaGoGama residents. 

“It’s the Real Thing”

The opening of the “crisis & struggle” exhibition recaptured the carnivalesque creativity of GotaGoGama with a noisy parade led by several performance artists and musicians, including Jehan Appuhami, Namini Panchala, and Ajith Kumarasiri. That performance emphasized how the exhibition “is a transition from unconventional, outdoor space to established, enclosed gallery space, to continue the aragalaya discourse and to assert that the overall struggle still continues” (in the words of the Exhibition Committee).  

The exhibition itself was an interactive mix of installation, sculpture, painting, and drawing that incorporated aspects of Rathnayake’s experience at GotaGoGama: his paint-splattered clothes and a burnt drawing with the lettering “Do Not Burn Art!” But that work’s title – “Artist’s painting set on fire by the artist (2023)” – laces that political didacticism with dark humour, while proving that Rathnayake’s iconoclasm extends even to his own work. In a similar vein, the police bus door with a painted policeman staring out is titled, following Magritte, “This is not the police.” And, like Rathnayake’s earlier Coke sign, hardly “the real thing.” 

But Rathnayake’s show was more concerned with connecting the treachery of images to the treachery of the state. Three paintings of subjected bodies and two paintings of incarcerated faces are titled “Aragalaya and the Rusted [Prevention of Terrorism] Act.” The installation with Rathnayake’s clothes on a metal bed and a copy of the Sri Lankan Constitution underneath is titled “Rusted Constitution operational also during the 2022 economic crisis.” As these works make painfully clear, Sri Lanka’s latest Executive President has, once again, turned the people’s rule of law into the state’s rule by law. While that counter-revolution may not get televised the way the Aragalaya did, Rathnayake has ensured that it will at least be exhibited – and artfully resisted

This article was first published by Groundviews and is reproduced on the ELR Blog with permission and thanks.

Essex Law School Researcher’s New Book Nominated for Two Awards

Photo by Mikołaj on Unsplash

Author Dr Jaime Lindsey from Essex Law School, researched mental capacity law in practice by observing Court of Protection hearings, reviewing court files, and conducting interviews with social workers, mediators and lawyers, in addition to theoretical and doctrinal analysis. 

The Court of Protection can make decisions about a person’s mental capacity and make best interests rulings on financial, health, or welfare matters for people who may lack the capacity to make their own decisions. 

This can include a range of decisions across a person’s life, including decisions about medical treatment, where to live, whether a person can have a sexual relationship or whether they can manage their finances. 

Analysing the court through a procedural justice lens, she concludes that procedural justice is not always secured for the person at the heart of Court of Protection cases, as they often do not participate, their experiential evidence is discounted and the court is not designed with the person at the centre of its practice. 

This impacts upon their ability to secure access to justice. 

Dr Lindsey’s book, Reimagining the Court of Protection: Access to Justice in Mental Capacity Law, outlines her main findings and goes on to make a case for reimagining the Court of Protection as an institution that better secures access to justice for its subjects, with specific recommendations for reform. 

The book has been shortlisted by the Socio-Legal Studies Association for the Hart SLSA prize for early career academics, and the Hart SLSA book prize 2023.

Dr Lindsey said: “I am delighted and honoured to have been shortlisted for two prestigious SLSA prizes for my book, Reimagining the Court of Protection. 

This is an area which impacts so many people daily and this book, looking at the realities of mental capacity law in practice drawing on empirical socio-legal research, shines a light on the work of this important jurisdiction.”

The winning book in each category will be announced at the annual SLSA conference in April.

This story was first published on the University of Essex’s news webpages and is reproduced on the ELR Blog with permission and thanks.