Dr Nikhil Gokani, Lecturer in Law, University of Essex, has co-authored a new book chapter on human rights, childhood obesity and health inequalities with Dr Marine Friant-Perrot.
The prevalence of childhood obesity, and its rapid increase, is not distributed equally across populations. Some groups of children are more likely to live with obesity than others, with childhood obesity being strongly associated with belonging to socioeconomic groups consuming more energy-dense diets. These health inequalities are largely systematic, and are mostly the result of the social, political and economic environment in which children live and play.
Despite the creation of a health-promoting environment for all children being recognised by the international community as a matter of societal responsibility, inequalities in childhood obesity are growing. Within legal frameworks, social, cultural and economic rights are well placed to help reduce the prevalence of obesity. These human rights are inspired by the principle of solidarity and, as they are conceived as instruments of social transformation, they aim to provide corrective measures to economic liberalisation. As their essence is to protect everyone equally, the reduction of health inequalities in childhood obesity can be articulated within this human rights discourse.
This book chapter argues that, through helping to restore a real capacity for choice in food consumption, and thereby supporting healthier diets for every child, the right to non-discrimination on the basis of socioeconomic status and the principle of equality can be thought of as a foundation for realising social rights, in particular the right to health and the right to food. Moreover, it explores the implications of a human rights approach grounded in the right to non-discrimination for reducing health inequalities in childhood obesity prevention strategies. It calls for State implementation of restrictions on the marketing of unhealthy food to children as an evidence-based method to reduce inequalities and help better fulfil children’s right to non-discrimination and protect them from unnecessary commercial influences.
The looming threat of a ‘forever war’, characterised by the so-called ‘Global Battlefield’ and the perpetual applicability of International Humanitarian Law (IHL), has thrust the question of when and how Non-international Armed Conflicts (NIAC) end to the forefront of international concern and debate. In both practical and legal terms, identifying the end of a NIAC is notoriously difficult. There are several reasons for this, but two in particular should be highlighted.
First, is the complex spectrum of social, political and economic factors that underpin, propel, and ultimately bring NIACs to an end. Indeed, history is replete with NIACs spanning several years and, in some cases, several decades.
Second, is the virtual silence of IHL regarding its temporal scope of application during NIAC. While conventional IHL speaks of the ‘end of hostilities’ and the ‘end of the conflict’, it stops short of providing any guidance on the precise meaning and scope of these expressions, or the relationship between them.
These factors are further compounded by a comparative dearth in legal scrutiny of when and how NIACs end. While considerable judicial and academic analysis has focussed on IHL’s threshold of activation (when a NIAC legally comes into existence), much less attention has been given to its threshold of termination (when a NIAC legally ends).
The article first explores the temporal architecture of Common Article 3 and Additional Protocol II to determine what, if anything, IHL has to say about its threshold of termination. From here, it unpacks and critically examines two of the leading approaches for determining IHL’s threshold of termination during NIAC: the ‘peaceful settlement’ approach advanced in the jurisprudence of International Criminal Law; and the ‘lasting pacification’ approach advanced by the International Committee of the Red Cross.
While both of these approaches possess advantages and limitations, it is argued that neither produce entirely satisfactory results for determining IHL’s threshold of termination during NIAC. In short, their common ailment is a quest for a single point in time that marks the ‘end’ of a NIAC, and at which point IHL terminates in toto. In practice, such an approach invariably results in the over-extension of IHL to factual circumstances that no longer warrant its application, or by the termination of its applicability before comprehensive protection is restored under International Human Rights Law.
For these reasons, the article develops and proposes an innovative ‘functional approach’ for determining IHL’s threshold of termination during NIAC, which addresses the silence and shortcomings of existing law and doctrine, while at the same time, holds true to the very object and purpose of IHL during NIAC.
UK communications regulator Ofcom has so far made six sanctions decisions on broadcast content related to the coronavirus. What do these decisions illustrate about what Ofcom considers harmful? In this post, Professor Lorna Woods explains the different types of harm that the regulator appears to take into account when considering misinformation around the virus and COVID-19.
Ofcom guidance on coronavirus
On 23 March 2020, UK communications regulator Ofcom issued guidance on content standards during the pandemic. Building on the generally applicable Broadcast Content Code, the Ofcom guidance highlighted the importance of sections 2 and 5. Section 2 deals with harm and offence; section 5 with impartiality and accuracy. It might be thought that content about COVID-19 that has little evidential support could be dealt with under section 5, as Ofcom has previously dealt with complaints about climate change and anti-vaccine views on this basis. Yet Ofcom’s guidance on coronavirus points back to its approach to ‘health and wealth claims’ under rule 2.1. This rule specifies that broadcasters should apply ‘generally accepted standards’ to ‘provide adequate protection’ from harmful and/or offensive material. Ofcom’s Coronavirus guidance highlighted three areas of concern:
health claims;
medical advice; and
the need for accuracy in programmes dealing with the virus or with public policy in relation to the virus.
The guidance does not give much detail on how harm might arise, so what can be discerned from Ofcom’s approach in practice?
Health and wealth claims
Ofcom defines health or wealth claims as statements that specific products, practices or activities will result in various benefits, especially when conventional treatments or advice are dismissed. Based on research it commissioned, the regulator has identified ‘a hierarchy of factors affecting the level of potential harm arising’, divided into three categories which it applies in cases involving health or wealth claims generally. Primary considerations are the vulnerability of the audience (e.g when they may be affected by serious illness) and the authority of the speaker. Secondary factors include the range of views presented, and the level of certainty ascribed to them. Tertiary factors are personal gain, genre, audience size and time of broadcast.
A further programme (The Last Leg on Channel 4) is identified as Covid-related, but it was not pursued. It concerned comments made by a guest on the programme about Boris Johnson’s health, rather than the public health impact seen in the other programmes. It is not possible to identify a full list of programmes which might have raised coronavirus issues but which were not taken forward because Ofcom gives no reasons for such decisions, just stating that the complaints have been dismissed (this is a possible failing in Ofcom’s systems).
These six programmes promoted 5G technology as a cause of coronavirus. Loveworld News also suggested hydroxychloroquine as a ‘cure’ for COVID-19. During the sermon there was a call for people to ‘pray against the false vaccine’. All suggested an ulterior motive for lock-down (the creation of a new world order) and that government advice was not to be trusted. In The Family Programme, which heavily promoted a document entitled ‘The COVID-19 genocide of 2020’, there were references to ‘our duty to break unjust laws’. With the exception of This Morning (which was still criticised), Ofcom found breaches of the code. In its London Live decision, Ofcom emphasised that its ‘rules do not prohibit the broadcast of controversial or outlandish views’ but ‘broadcasters must ensure that such views are properly contextualised so as to comply with the Code’.
What is harm?
These decisions illustrate what might be considered (in the broadcast context) harmful and that the ways that harm might be envisaged to arise show different levels of connection to the content, which we can ascribe to three broad categories: direct, indirect and societal.
A direct connection between content and harm can be seen, for example, in the context of photosensitive epilepsy (not in issue here), where content might have a direct impact on the psychology or emotional state of the audience. To the extent that psychological or emotional well-being was considered, it was a factor in assessing the vulnerability of members of the audience. The concern in this context is therefore probably not their psychological or emotional well-being (though this can be seen in the context of some decisions in relation to children under rule 1 of the Broadcast Content Code), but the steps that individuals may take in response to the content: an indirect harm.
Indirect harm could occur because of a belief in the effectiveness of hydroxychloroquine or thinking that 5G causes coronavirus, which could lead people to engage in risky behaviours contrary to official advice (e.g. not social-distancing or injecting harmful substances). It could also include circumstances when individuals seek to damage 5G masts. In this, the link between content and harm is indirect: it requires action on the part of the viewer to give effect to the harm. This approach is not new. It ties in with the concerns Ofcom identified with regard to health claims and medical advice generally, and can also be seen with the rules in the Content Code relating to copycat behaviours.
London Live argued that it had removed any content that could have been considered to be medical advice or contrary to government guidance. The discussion was general and not aimed at any particular person. Ofcom still found the content to be harmful, however. This seems to extend the understanding of harm: what is distinctive here is that the harm occurs at the societal level, relating to virus spread, rather than just individual risk.
This broad approach to the societal category of harm is noticeable as regards Ofcom’s third category of concern: the approach to public policy. Although Ofcom emphasised the importance of a robust debate around the Government’s handling of the pandemic and in particular the restrictions to our freedoms, Ofcom found harm arising from criticism of Government’s motives. Some criticism, for example that in The Family Programme where the presenter repeatedly commented that “Government and WHO policies are deliberately aimed at killing people” was extreme. Nonetheless, it seems that there is a low threshold to trigger this concern which is especially noticeable in Ofcom’s This Morning decision. There, the comparatively mild challenge to the government’s policies was assessed by Ofcom as ambiguous but yet was determined to have undermined people’s trust in official advice. Although a failure to follow government advice could clearly lead to harm – whether to the individual not following the advice or to others as a result of the spread of COVID-19 – this seems to be a broad understanding of harmful content, especially given the role of the media in holding government to account.
Conclusion
It is important, however, to appraise these decisions in context. The programmes (with the partial exception of This Morning) promoted extreme views. In the London Live interview, for example, the interviewee stated that the world is controlled by a cult which wants to create “a beyond Orwellian global state in which a tiny few people dictate to everyone else”. In the Loveworld Sermon, the preacher argued that there was a sinister plan for the survivors of Covid-19:
“And the younger ones that are strong enough for the formation of the new breed that is in the dream, the new breed, the new class of people that some scientists want to create for the world. While all others may soon have to perish.”
Similar views were repeatedly expressed in The Family Programme. Additionally, we should remember that the rule relates not to the existence of harmful content, but to the broadcaster’s failure to protect the audience. In these cases (This Morning being the exception), there were only minimal attempts to provide balance or context in the presentation of the content, and the viewpoints were in each case adopted by the presenter, giving that viewpoint weight and authority.
All of Ofcom’s decisions emphasised – in accordance with its approach to health and wealth claims – the vulnerability of the audience, here the concerns arising from the spread of a novel virus for which there was at the time no cure or even particularly effective treatment, especially in groups or areas particularly adversely affected. So, while Ofcom recognises a broad scope to harm in this context, the decisions on the facts were balanced. It is far from certain that Ofcom would find other views that are critical of the Government to be harmful; this trend would certainly not seem to be applicable beyond the pandemic situation. Finally, the challenge brought by the Free Speech Union was unsuccessful; permission to bring a judicial review action was refused.
This post first appeared on the Media@LSE blog and is reproduced here with permission and thanks.
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