Christmas is just around the corner. With all the hustle and bustle of academic life, we all need a little time off to refresh, recover and reflect. So as of next week (Monday 20 Dec. 2021), we’ll be on a short hiatus.
We hope that you can look back on a positive year with us. In 2021, we had 77 posts and thousands of visitors from 106 countries around the world. The ELR Blog will be back in January 2022 with more research news from our School.
We wish you and your family all the warmth this holiday season has to offer. We hope you have a wonderful Christmas and a New Year filled with peace and joy!
Christmas is just around the corner. With all the hustle and bustle of the academic life, we all need a little time off to refresh, recover and reflect. So as of next week (Monday 21 Dec. 2020), we’ll be on a short hiatus.
We hope that you can look back on a generally positive year with us. In 2020, we had 89 posts (up from 29 in 2019) on a very wide variety of topics by authors from all areas of law. Also, we have more than doubled our views (moving from 3,326 in 2019 to 7,440 in 2020). More than half of these are from the UK, with the USA, Canada, Germany, France and China making up the rest of the top five.
The Essex Law Research blog will be back in early January with more research news from our School. However you celebrate at this time of the year, we hope you enjoy a wonderful holiday season!
On 18 May 2020, the UK communications regulator Ofcom ruled that Loveworld Limited, which broadcasts the religious television service Loveworld, breached its Broadcasting Code after a news programme and a live sermon featured potentially harmful claims about the causes of and treatments for COVID-19.
The Ofcom investigation found that a report on Loveworld News, a programme featuring news from studios around the world, included a number of uncorroborated claims that the source of the risk to health was the effect of 5G Wi-Fi networks rather than the viral transmission of COVID-19. The report also contained several assertions that there was a “global cover-up” about the cause of the pandemic. Another report during the programme “repeatedly and unequivocally” presented the anti-malarial drug hydroxychloroquine as a “cure” for the virus without clearly recognising that this was a clinically unproven claim about the effectiveness of the drug for coronavirus treatment and without acknowledging the drug’s potentially serious side effects.
In relation to both reports, the regulator found that Loveworld Limited had not preserved “due accuracy” (in breach of Rule 5.1 of the Code) and had failed to adequately protect viewers from potential harm (in breach of Rule 2.1) by presenting content of this nature as unequivocal facts rather than views placed in an appropriate context. Ofcom underlined that it did not seek to curb the broadcaster’s ability to present programmes covering current affairs from a religious perspective, but it did not consider that the religious nature of the channel justified a departure from the established application of these rules.
In addition, a sermon broadcast on Your Loveworld was also found to have included “unchallenged and unevidenced” claims casting doubt on the necessity and effectiveness of the social distancing policies adopted by governments (including the United Kingdom) as well as assertions questioning the motives behind official health advice in relation to the coronavirus and 5G technology. In particular, Pastor Chris Oyakhilome (the founder and president of the megachurch Christian denomination known as Christ Embassy) preached that the lockdown measures, the roll-out of 5G and potential future vaccines were part of a plan to reach “the final union between man and machines” because “Satan wants to create a new man”. Ofcom considered that these statements risked “undermining viewers’ confidence in the motives of public authorities and leading them to disregard current and future advice (including on any future vaccine) intended to protect public health.” An exacerbating factor in this case was that these views were set out – without challenge – by a person who was portrayed to viewers as a figure of knowledge and particular authority.
The regulator held that the sermon broadcast provided “a platform for uncontextualized views” that had the potential to cause significant harm to viewers (in breach of Rule 2.1) and that Loveworld Limited had not taken any measures to provide its audience with adequate protection from such material, for example, by challenging the conspiracy theory or including the views of others and making it clear that other explanations could exist.
Ofcom recognised the Licensee’s right to hold and broadcast controversial views which diverge from, or challenge, official authorities on public health information. However, the inclusion of unsubstantiated assertions in both programmes had not been sufficiently contextualised and risked undermining viewers’ trust in official public health advice, with potentially serious consequences for their own and others’ health. In light of the serious failings in these cases, Ofcom directed Loveworld Limited to broadcast summaries of its decisions and will consider imposing further sanctions.
The allegations of sexual misconduct against an unnamed Conservative MP have received significant media coverage lately. The Sunday Timesreported that the ex-minister was taken into custody on Saturday 1 August 2020 after a former parliamentary employee accused them of rape, sexual assault and coercive control. The MP has not been named publicly so far. But what stops the media from naming rape suspects? There are several aspects of media law which are relevant to this case.
To start with, the Tory MP remains anonymous partly because of recent developments in the law of privacy. Cliff Richard’s legal action against the BBC in 2018 established that suspects of law enforcement investigations enjoy ‘a reasonable expectation of privacy’ up to the point of charge. This general principle was endorsed by the Court of Appeal in the subsequent case of ZXC v Bloomberg LP in May 2020. Giving lead judgment in this case, Lord Justice Simon stated:
[…] those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion. The suspicion may ultimately be shown to be well-founded or ill-founded, but until that point the law should recognise the human characteristic to assume the worst (that there is no smoke without fire); and to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty.
[para. 82]
This does not necessarily mean that the media cannot report on criminal investigations. Such investigations can only lawfully be reported where there are countervailing public interest grounds to outweigh the suspect’s privacy interests and justify disclosure of their name (e.g. where the individual under investigation is a political figure). Different media organisations’ approach to this balancing exercise may, however, vary; hence, some media outlets may decide to name the suspect more quickly than others.
Furthermore, an alleged victim of a sexual offence enjoys an automatic right to lifelong anonymity under section 1 of the Sexual Offences (Amendment) Act 1992 and should not be identified in a written publication available to the public or a relevant programme for reception in England and Wales. The anonymity applies from the time an allegation is made by the alleged victim or anyone else. Section 5 of the 1992 Act makes it an offence to breach these provisions. The individual concerned may waive their right to anonymity if specific requirements are fulfilled and a court can lift the anonymity in certain circumstances, but this happens only rarely. One practical implication of these statutory provisions is that the media must be mindful of the potential for ‘jigsaw’ identification, i.e. piecing together different bits of information that create a more complete picture of an individual whose identity should be concealed. This means that the media must limit the publication of any matter ‘likely to lead’ to the complainant’s identification and as a result, care is needed with detail.
There could also be libel risks if, prior to any charge, a suggestion is published that an identified suspect may be guilty of a crime. A media report which includes the suspect’s name may allow that individual to successfully sue the publisher for defamation if the investigation does not lead to a prosecution. The media can safely publish the name of a person under investigation if the name is officially supplied by a spokesperson for a governmental agency, e.g. the police. This is because the report will be protected by the defence of qualified privilege in defamation law. It is anticipated that most media outlets will wait until the individual concerned has been named by the police. Finally, the publication of details which turn out to be incorrect could result in a conviction for contempt of court if a judge thinks that the material published created ‘a substantial risk of serious prejudice or impediment’ to the legal proceedings.
Dr. Jaime Lindsey recently published an article in Child and Family Law Quarterly (Volume 32, Issue 2, pp. 157-176), titled ‘Protecting vulnerable adults from abuse: under-protection and over-protection in adult safeguarding and mental capacity law’.
The article concerns the intersection between adult safeguarding and mental capacity law; an area which raises a number of difficult issues for lawyers, policy makers and health and social care professionals when thinking about the extent to which the civil law ought to be used to respond to abuse of adults with impaired mental capacity.
The article draws on original empirical data to show that adults vulnerable to abuse are left under-protected in some cases and over-protected in others. In particular, it argues that the Mental Capacity Act 2005 has become a tool for protecting vulnerable adults from abuse. Moreover, this is done in ways that restrict and control the vulnerable victim, rather than targeting the perpetrator.
Learning from developments in the domestic abuse sphere, including the Domestic Abuse Bill currently going through Parliament, Dr. Lindsey argues that safeguarding adults law should instead focus on perpetrators of abuse by developing a Safeguarding Adults Protection Order (SAPO), instead of resorting to mental capacity law in these challenging cases.
The article is available on LexisLibrary and a copy can be requested via the University’s Research Repository here.
Prof. Theodore Konstadinides and Dr. Anastasia Karatzia acted as the UK national rapporteurs for theFédération Internationale Pour Le Droit Européen (FIDE) Congress 2020, one of the most significant conferences on EU law which brings together academics, advocates, judges and representatives from the EU institutions.
The Congress is an occasion to exchange views and expertise on EU law. Prof. Konstadinides and Dr. Karatzia were selected as the national rapporteurs for one of the three topics of the conference: National Courts and the Enforcement of EU Law: The Pivotal Role of National Courts in the EU Legal Order.
In their report, the authors explore pertinent questions about the interaction between UK national courts and the Court of Justice of the European Union concerning issues such as the preliminary reference procedure, the principle of supremacy, presumption of mutual trust, and the judicial independence of national courts and tribunals.
The Congress Publications, which include Prof. Konstadinides’ and Dr. Karatzia’s report, were published in July 2020 and are available digitally as Open Access resource here.
A year after the introduction of the UK Advertising Standards Authority’s (ASA) new rule on gender stereotyping, a new study evaluates the regulator’s approach to depictions of harmful gender stereotypes in advertisements.
Dr Alexandros Antoniou and Dr Dimitris Akrivos from the School of Law are the authors of ‘Gender portrayals in advertising: stereotypes, inclusive marketing and regulation’. Their study, which was recently published in the Journal of Media Law, a leading journal in the field, offers an in-depth socio-legal analysis of the ASA’s modern practice which systematises for the first time the regulator’s rulings in the field of gender stereotyping.
For a long time, academic research has highlighted the impact gender stereotypical advertising images can have on people’s aspirations, professional performance and mental well-being. In response to long-standing concerns around the matter, the ASA introduced in June 2019 a new advertising rule and guidance into its harm and offensiveness framework. The new rule, which came into effect on 14 June 2019, states: ‘Advertisements must not include gender stereotypes that are likely to cause harm, or serious or widespread offence’. Academic discussion has not until now queried whether the actions taken by the ASA constitute a satisfactory response to the problem.
Their new article brings a new perspective in the ASA’s approach by paying close attention to the complex structure of gender stereotypes and the interaction between their multiple components. More specifically, Dr Antoniou and Dr Akrivos’ research looks at how the ASA has dealt with different forms of gender stereotyping, including sexualisation and objectification; body image; gender roles, behaviours and characteristics; and the ridiculing of those who do not conform to gender norms.
The authors argue that, although the ASA’s new rule and guidelines constitute a step in the right direction, they represent a missed opportunity to take bolder action against ads that objectify or inappropriately sexualise individuals. Dr Antoniou and Dr Akrivos stated: “the new ASA guiding principles need to be revisited in order to go beyond the traditional male/female binary”. They recommend that the new guidance on gender representation in marketing communications needs to reflect the multi-faceted nature and fluidity of modern gender identities. “We propose the introduction of a new concept requiring advertisers to give ‘due weight and consideration’ to the diversity of modern masculinities and femininities”.
The University of Essex’s press release on the study can be found here. The research also featured in an article on the global marketing magazine Campaign and a piece on the LGBTQ magazine GScene.
Dr Samantha Davey has recently published a book with Hart, entitled ‘A Failure of Proportion: Non-Consensual Adoption in England and Wales’. This book is the result of PhD research which was funded by the Arts and Humanities Research Council. It explored the topic of adoption – specifically the issue of adoption without parental consent.
The central question Samantha sets out to address in her book, is as follows: in what circumstances is it proportionate to remove children from their parents into care and place them for adoption?
In England and Wales, and most other jurisdictions, adoptions are final and irrevocable. Adoption, in these circumstances, is non-consensual, signals not only the end of the legal relationship between children and parents but the end of familial relationships. Once an adoption is finalised, it is very rare for it to be revoked and unusual for direct contact to take place between children and their parents.
Dr Davey’s book explores an area of law which has sparked considerable debate amongst academics, practitioners and the judiciary nationally and internationally. The emphasis of her book is on the circumstances in which non-consensual adoption may be regarded as a proportionate measure and when less severe forms of intervention, such as long-term foster care or kinship care, may also meet children’s needs while providing protection to children’s rights under the European Convention on Human Rights.
The book builds on existing literature on adoption law but takes the discussion in new directions, placing an emphasis on the need to closely scrutinise children’s and parents’ rights at all stages of the adoption process. A unique feature of this book is its emphasis on routinely incorporating key provisions from the United Nations Convention on the Rights of the Child into analysis when determining whether an adoption order is a proportionate measure.
India should rewrite outdated, colonial laws and empower local people so that embankments work for communities and nature.
Cyclone Amphan has devastated millions of lives in the Sundarbans, a tidal forest on the shore of the Bay of Bengal. The Sundarbans lies in the southern part of the Ganges Delta, crossing both India and Bangladesh. It is an area of global importance, as the largest mangrove forest on Earth and a significant carbon sink.
Although famous for its biodiversity and ecology, the region is home to 5 million people and one of the most deprived areas. Since 2007, there have been at least 15 major cyclones in the region. On 20 May 2020, Cyclone Amphan made landfall, in the midst of the COVID-19 pandemic.
Beyond disaster relief, ‘rebuilding’ the Sundarbans will be a monumental task – one that cannot repeat past mistakes. It must be attuned to a climate-stressed world where rising sea levels and cyclones will continue to batter the region, which is the largest delta and mangrove forest on earth.
The region has long been in a state of structural dysfunction, bringing great harm and impoverishment to millions. This impoverishment is not a natural state or determined purely by the fragile ecology. Rather, it is the result of human agency, policies, laws and institutions.
Problematic laws and governance
After a disaster several things usually happen. There is a cry for funding, some (usually inadequate) funding provision, followed by reconstruction. In the Sundarbans, this involves building embankments.
The embankments of the Sundarbans protect the islands where people live and are vital to their safety and livelihoods. When an embankment is breached, saline water enters farmland and food can no longer be grown. A downward spiral often follows, as people move into further marginalised activities (such as collecting prawn seedlings), or migrate under precarious conditions.
Embankment law in the state of West Bengal has not changed much since the colonial era: the Bengal Embankment Act is almost 140 years old. Today this legislation operates in a completely different social and ecological reality.
Colonial laws vest complete power in the state bureaucracy, the Irrigation & Waterways Department (IWD). Under the law, the embankments are government property. The department is the ultimate arbiter of where, when and how embankments are built and maintained. These decisions are life-and-death issues for the people who live in the Sundarbans.
Research has shown a high level of apathy towards development in the region from local government bureaucracy, especially the IWD. The state chooses whether or not to respond, with local people unable to take part in any meaningful sense, in the decisions that govern their lives. For example, studies found that this centralised control was at the heart of poorly built infrastructure and the misuse of resources after Cyclone Aila in 2009.
Decisions about embankments could be democratically controlled, through legislative reforms, by the communities whose lives depend on their maintenance. Communities need to be empowered – both through the provision of resources and legal power – to create an environment where people and nature can thrive together.
Need for different technology
In recent years, a lot of money has been spent on constructing concrete embankments. These embankments are unfit for the surrounding environment. Research has found that concrete structures disrupt the natural ecology of the islands without offering protection when a strong cyclone hits – in 2012 Anurag Danda, then head of the WWF-India’s Sundarbans and climate adaptation programme, said such structures had been washed away twice at the island of Mousuni.
There is also an urgent need to update the science and knowledge embedded in the way embankments are built. The Bengal Embankment Act assumes a fixed distinction between land and water, as the British based the law on the geography of their own rivers.
But in the delta which makes up large parts of eastern India, the border between land and water is constantly changing. Concrete embankments assume a clear demarcation, but this is not possible in the region.
Architects in other parts of South Asia have been researching new ways of designing in flood-prone and coastal areas, which are cognisant of the local ecology, changing climate and social needs. These approaches try to work with water and floods – for example, embracing overflows into land at certain times and places, overturning many centuries of seeing water as a threat. Many experts are now calling for these ideas to be engaged with in the Sundarbans. The state’s role should be to facilitate the interaction of such experts with democratically empowered local populations.
Embankments (left) can displace people, who become more vulnerable as they are forced to rebuild their huts (right) outside the area the embankment protects (image by Megnaa Mehtta)
Building a better future
The state government has consistently failed to prioritise coastal planning. It only managed to produce a draft coastal zone map after numerous outcries and orders by the National Green Tribunal, India’s dedicated environmental court. The West Bengal government’s approach to formulating a coastal zone management plan also lacked meaningful public participation.
Recently, the Indian government pushed through a series of reforms that allow more “development” in areas such as the Sundarbans, where mangroves are recognised as a crucial buffer against cyclones and storms in a climate-stressed world. An investigation found that the reforms ignored 90% of public representations made nationwide. This demonstrates how coastal areas have always been ruled from the top down.
There is also widespread flouting of environmental rules to create ‘eco-tourism’ in the region. The badly planned construction of roads, resorts and jetties leads to massive habitat destruction. Moreover, infrastructure for tourism, such as hotels and restaurants, takes priority in the allocation of vital resources like water, with groundwater being diverted from local people and farmland.
Meanwhile, while local people have forestry rights, conservation concerns are often used as an excuse to deny their rights and criminalise their activities.
In 1979, the state carried out a massacre of hundreds of Dalits (people in the lowest group in the Hindu caste system) in Marichjhapi – ostensibly to protect the forest. For decades, interest in the Sundarbans has been limited to protecting tigers or forests, largely at the expense of communities. Recently, a planned relocation of populations in the Sundarbans to create buffer zones has been advocated by some researchers.
The overall approach could be described (to use the words of Nivedita Menon, the professor of political and feminist theory, from a different context) as privileging ‘the environment over people, and development over the environment’.
Mangroves, migration, embankments and eco-tourism will all have some role to play in rebuilding efforts. But, a reframing (and decolonising) of governance and law is long overdue. The rights of residents need to be reflected in law and policy. Ignoring the voices of the suffering has been central to the story of the Sundarbans. It must not be repeated now.
A version of this piece first appeared on thethirdpole.net and is reproduced here with permission and thanks.
The Clinical Legal Education Handbook (edited by Linden Thomas and Nick Johnson; published by University of London Press on behalf of the Institute of Advanced Legal Studies) has launched providing law schools with a go-to-guide for establishing or maintaining their clinical programmes. Two academic members of the University of Essex Law School have contributed to this publication.
Lee Hansen, Deputy Law Clinic Director and Member of the Human Rights Centre, has contributed three chapters.
The first of Lee’s chapters provides guidance for clinics on client care to help such organisations provide to their clients a proper level of service. The chapter sets out key aspects of client care including the use of intake guidelines; client identification; time limit management; conflict screening; and the disclosure of key information to clients about the service and how their matters will be handled.
Client care has always been important but is of particular significance in the context of the current pandemic. Clinics are making changes to their regular service models to enable them to continue to assist the community throughout this unprecedented time. This may inevitably involve some new ways of working (such as the use of video conference technology) but it remains as important as ever to maintain appropriate systems and processes to ensure that clients who are placing their trust in these services, receive the best quality experience.
The second of Lee’s chapters provides guidance on effective signposting and referral. The chapter sets out key principles of effective signposting and referral, provides information about referral systems and set outs the regulatory position under SRA standards and regulations.
University law clinics often close outside of term time as students return home. Such closures also provide academic staff with much needed time to catch up on their scholarship or research which is often impossible to do during term time. In such circumstances where there are gaps in the continuity of a service it is critically important that persons enquiring for help are directed to an appropriate service that is able to assist. Again, in the current pandemic as sources of assistance are narrowed this guidance is of particular significance.
The third of Lee’s chapters provides guidance on the provision of debt advice by university law clinics. This chapter reviews changes to the regulatory landscape that largely prevent university law clinic from providing debt advice and suggests potential workarounds to support some provision in this important area. There will clearly be a significant level of legal need for debt advice in the context of the current pandemic and in its economic aftermath. This chapter therefore suggests some practical options to university law clinics to assist in meeting such need.
In addition to Lee’s chapters, Prof Donald Nicolson was asked to provide “words of wisdom” from those with many years of experience with law clinics and clinical legal education. Drawing on 25 years of experience in running law clinics (and four years as a student in a student-run clinic), Donald offered four items of advice to other clinicians:
the key to a clinic’s success is its people, so take your time selecting students and work colleagues;
never underestimate student – they will always surprise you with their enthusiasm, passion and new ideas;
take risks – don’t let the perfect be the enemy of the good; and finally,
look after yourself – don’t allow your passion for the clinic take over your life to the detriment of friends and family.
Published in May 2020
The Clinical Legal Education Handbook is freely available online in PDF here.
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