Impact

The Anatomy of Impact: A Conversation with Professor Lorna Woods

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Photo by Joshua Hoehne on Unsplash

By Professor Carla Ferstman, Director of Impact, Essex Law School

As academics, we conduct research for all sorts of reasons. We seek to advance knowledge and innovation in the areas in which we specialise, and we try to make connections with research being done in other disciplines for the purpose of enhancing our understanding of and contributing to address cross-cutting, complex challenges.

Academic research is increasingly being applied outside of academia to foster external impacts in our communities and societies. Research-led teaching can also foster the opportunities for cutting-edge, student learning.

The UK Research Excellence Framework values world-leading research that is rigorous, significant and original. It also encourages and rewards research that generates impact, which it understands as “an effect on, change, or benefit to the economy, society, culture, public policy or services, health, the environment or quality of life, beyond academia” (REF2021).

Impactful research is particularly relevant and important for the discipline of law, where colleagues’ work can lead to changes in how justice is perceived and how access to justice can be better achieved. Academic research in law has led to and influenced the direction of law reform and academic findings have also been applied authoritatively in court judgments. Legal research has also led to the development of new policies, and regulatory frameworks in the UK and internationally.

Despite the importance many legal academics place on generating impact, the route to impact is not obvious. Achieving impactful academic research defies a one-size-fits-all formula, though certain key pointers are invaluable:

First, impactful research is generated by academics who produce excellent, ground–breaking research.

Second, academics should be mindful of who (e.g., community stakeholders, policy-makers, decision-makers) would benefit from knowing about the research and should develop a strategy to ensure they effectively disseminate their findings.

Third, academics seeking to generate impactful research should be actively engaging with those who can benefit from their research, adapting their approach based on stakeholder needs and circumstances.  

Learning from example

Academics can glean wisdom from exemplary models. And there is no better example than Professor Lorna Woods, whose research contributed significantly to the Online Safety Bill (now Online Safety Act 2023) and led to her being awarded an OBE for services to internet safety policy.

I sat down with Professor Woods to get a clearer understanding of her trajectory – how she got from A to B to C (or indeed, from B to A to F to C), to better appreciate the time her ideas took to percolate and the challenges she faced along the way.

I wanted to understand whether her research was picked up by government by happenstance, by carefully, plodded planning, or some other combination. I also wanted to know whether there was any magic formula she could share to generating impactful research.

Lorna qualified as a solicitor and worked in the early 1990s for a London city firm, where she was exposed to a variety of areas of law, including international trade, competition, and commercial law. She began to work with two of the partners on matters involving regulation, intellectual property, and media. She happened to be at the firm when many developments  in the law occurred, such as the Broadcasting Act 1990, up-dates in data protection rules, and other changes as a result of growing public access to the internet.

This quickly developed into a specialism related to technology. “The work was really interesting. It wasn’t just the typical due diligence or deals management work that one often received in a corporate solicitor’s firm, there was a space to think and a space to have your say”.

Also, during this time, Lorna did some consulting work for the European Commission in Eastern European countries following the political changes in the early 1990s, focused on media freedom and public service broadcasting, which involved new thinking about the rights of the public audience that had not yet been theorised.

Lorna left the firm after about five years when, as often happens, she began to take on a more supervisory role, with some of the most interesting pieces of work being delegated to more junior colleagues. She pursued an LL.M degree at the University of Edinburgh (legal theory and human rights, with a dissertation on federalism and the European Union) and began to apply for academic roles. She secured a position in 1994 at Sheffield and began teaching EU and public law.

The Eureka moment or more of a slow-burner?

Gradually Lorna’s research began to drift back to media law and data protection, incorporating areas she had been studying around human rights, public speech, surveillance, and the rights of journalists, but with her own take. She recalled that “A lot of people were talking about journalists’ rights, but I was focussed on the rights of the companies who were transmitting; an ‘essential facilities’ argument but approached from a rights perspective. I also started looking at these issues from the perspectives of EU law and the free movement of cultural standards [the rights of the audience] rather than simply as an issue of freedom of expression.”

Central to this was the idea that there were different actors in an information environment – the speakers and the audience, and something in the middle which had more to do with the platform, that is not really seen or thought about. The question Lorna had was whether these entailed separate rights or were all part of a unified right to information.

In 2000, Lorna was collaborating with Professor Jackie Harrison at Sheffield and they began researching new media and media regulation, and again, this is where she conceptualised further her thoughts on the rights of the audience not only to have access to information, but to information that was reasonably reliable, and where possible, to a diversity and plurality of sources.

This also connected to her thinking about how to find information on the internet, who curates what we can find and what responsibilities may be attached to the curation. The flip side to this was considering the nature of states’ positive obligations to provide a safe online environment. Lorna also began to explore issues around user–generated content.

In response to the growing awareness of how female politicians and activists were being targeted on Twitter (now X), and the notoriety of the abuse faced by Caroline Criado Perez and Walthamstow MP Stella Creasy, Lorna started looking at what controls were in place, and began to consider the gaps in regulation and how they could best be addressed.

At the time, she observed that politicians had embraced Twitter, amplifying their influence while also making them more accessible and exposed. The platform facilitated direct communications between everyone on the network, including with unsavoury individuals who were using the platform as a form of abuse. This was fuelled by anonymous accounts, hashtags that allow you to jump on the bandwagon, and little seeming moderation at that stage. There were many instances of public-facing women receiving rape and death threats.

In consequence, there were several instances in which users were being charged in the UK under section 127 of the Communications Act – a low-grade offence which criminalises the sending, via a “public electronic communications network”, of a message which is “grossly offensive or of an indecent, obscene or menacing character”. But it was never clear to Lorna that using the criminal law was the best solution to the problem.

The campaign for law reform begins to take shape

Around 2015, Lorna became aware that the then Labour MP Anna Turley MP was developing a private member’s bill:  the Malicious Communications (Social Media) Bill. Someone whom Lorna had met in an unrelated capacity – “this is just really a feature of when you work in a certain area, you meet people linked to that area. And progressively, your army of contacts comes back to help” – William Perrin, managed to get her in the door to meet the MP.

Together, Lorna and William helped to draft the Bill. The goal was to give users better tools (user empowerment features and functionalities) so that they could filter and triage incoming content, at least as a starting point for improving the online environment. Their advice (which was taken on board) was not to remove platform immunity for third-party content; they recognised that the platform providers were offering an important service worth protecting.

Part of the rationale for this was the connections they saw between internet platform providers and telecoms providers: “If you were to hold a telecoms provider responsible for anything communicated on the service, they would become very cautious and ultimately it would shut down the service.  So, there was a need for caution.” Ultimately the Bill did not progress because private members’ bills rarely do but they operate to bring matters to the attention of the Government and can be part of a campaign for change.

Subsequently, the Government published a Green Paper on internet safety in 2017, where significant concerns were raised. This was the era of Cambridge Analytica and misinformation, but there were also concerns about child pornography and online bullying, and the algorithms prioritising content to vulnerable users stemming from the tragic Molly Russell case.  The Green Paper seemed to revisit the recommendation to remove (or significantly restrict) platform immunity for third-party content, which Lorna and William did not think was the best approach, for the reasons already stated.

There was a need to conceive of the problem at the systems level, rather than merely focusing on isolated items of content. For example, the scale of the problem invariably was not about the individual offensive posts but that the content was quickly able to go viral without appropriate controls, aided by functions like the “like” button, and the availability of anonymous, disposable accounts.

Similarly, the recommender algorithm which optimised certain posts for engagement tended to privilege the most irrational, emotional posts which were more likely to promote hatred or cause offence. Making small changes to these kinds of features and investing more in customer response, could significantly improve online safety.  Thus, according to Lorna, there was a certain recklessness in the product design that needed to be addressed – this was the genesis of the idea of a statutory duty of care. 

Paws for thought: remembering Faith, Lorna’s beloved cat who ‘Zoom-bombed’ video calls during lockdown and contributed much to debates on online safety

The statutory duty of care

Lorna and William produced a series of blogs and papers outlining this position, and the need for such reforms was also underscored by Lorna during an oral evidence session at the House of Lords inquiry into the regulation of the internet. The Carnegie UK Trust stepped up to champion Lorna and William’s work, facilitating its progress.

The UK Department for Culture, Media and Sport (DCMS) invited Lorna to give a briefing, and it became clear that there was some confusion. The DCMS had been under the impression that the conditionality of the platform immunity amounted to a statutory duty of care. Consequently, part of what Lorna and Will tried to explain was how their proposal was compatible with the principle of platform or intermediary immunity. The proposal was not seeking to impose liability on the platform for user content but instead, focused on requiring platforms to ensure product design met their duty of care to users. These discussions with DCMS continued, and progressively intensified.

The White Paper which was ultimately released in April 2019 clearly articulated that “The government will establish a new statutory duty of care to make companies take more responsibility for the safety of their users and tackle harm caused by content or activity on their services,” and outlined what that duty of care would look like and how it would be regulated.  

Changes within the Tory leadership ultimately delayed progress. There were also concerns raised by some of those in the free speech lobby who saw parts of what was being proposed as censorship.  Lorna’s background in freedom of speech helped her respond to those concerns: “I was concerned that freedom of speech was being used as a slogan. When you look at any right and you look at it in isolation, you are then implicitly privileging it. And here, it was important not just to consider the rights of the ‘speaker’ but the rights of all the other users as well, some of whom are extremely vulnerable.” 

These points align with what the UN Special Rapporteur on Freedom of Opinion and Expression explained in her 2023 report on gendered disinformation, who notes, citing Lorna’s submission, that “Systemic regulation, which emphasizes ‘architecture over takedown’, allows for more proportionate responses and is likely to be better aligned with freedom of expression standards.”

Certainly, companies were lobbying in other directions and the Act reflects some corporate compromises, such as the need for the duty of care to be applied proportionately, to account for the different levels of resources of the regulated company. But there were powerful counter-arguments, and the NSPCC and other organisations were effective allies particularly on the need for clear duties of care in relation to child users. The Daily Telegraph also ran an important campaign on the legislation. The Government at one point sought to restrict the Act to concerns about children, so this became part of the campaign to maintain a focus also on harm to adults (unfortunately only limited protections were maintained). There are other parts of the Act which differ from what Lorna and William had proposed, such as dividing up the regulatory framework by reference to certain types of conduct. Inevitably there were compromises.

The Act as adopted envisages that the communications regulator Ofcom will produce guidance and codes which will explain what internet platforms must do in order to operate in the United Kingdom. There are ongoing consultations regarding these texts. Once the guidance and codes are in place, companies will be given a period (three months) to align their practice to comply with the requirements. Thereafter, the duties of care will become binding.

Some of the companies appear to be arguing that a duty of care is too vague a standard, however this is hard to accept, given that it is a recognised legal standard. The goal for Lorna and others is therefore to ensure that the duty of care standard is made operational in such a way that it provides clear and adequate protections; it should be more than a ‘tick the box’ exercise.

I asked Lorna how this legislation would tackle the activities of companies operating outside of the UK, but with impacts in the UK. She explained that parts of the Act have extraterritorial effect, to the extent that company activities are directed at or have impacts in the UK. Some companies have introduced policies for different geographical regions to address the requirements of national legislation, so this is a possibility for multinational internet platforms accessible to UK users.  

I also discussed with Lorna whether she believed individuals like Molly Russell would be more effectively safeguarded now that the Online Safety Act is in force. She explained that Molly would not be better off today, because the guidance and codes are not yet in place. “Maybe in a year’s time, she would probably be better protected, as a child. I think an 18-year-old Molly would be sadly let down by the regime, which should be more robust.”

Given the clear synergies with her work on the Act, Lorna is also progressing with work on online gender-based violence, and some work on gender-misinformation, incel and extremism. As she looks deeper into these critical areas, it becomes evident that her ongoing endeavours reveal new challenges and fresh avenues for advocacy and change.

Tackling the Blind Spot of the UK Anti-Slavery Regime: Groundbreaking Research on Modern Slavery Survivors in UK Prisons 

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Groundbreaking research led by Essex Law School’s Senior Lecturer Dr Marija Jovanovic uncovers the realities of modern slavery survivors in UK prisons in a report published on 28 November 2023. The report, Tackling the blind spot of the UK anti-slavery regime: the role and responsibility of prisons in securing the rights of modern slavery survivors, contains findings from a 12-month research project conducted in partnership between the University of Essex, the International Organization for Migration (IOM) in the UK and Hibiscus Initiatives. It was commissioned by the Modern Slavery & Human Rights Policy and Evidence Centre (Modern Slavery PEC), which in turn is funded by the Arts and Humanities Research Council (AHRC).  

The research combined a doctrinal analysis of the relevant law, policy, and secondary sources with interviews with a range of stakeholders including adult survivors of modern slavery who had been in prison in the UK, NGOs, prison administration and staff in all three devolved jurisdictions, solicitors, police officers, and other experts. A survey was also conducted with Modern Slavery Single Points of Contact (SPOCs) recently appointed in all prisons in England and Wales. 

Dr Jovanovic and the IOM UK hosted a high-profile launch event on 28 November 2023 with more than 110 people in attendance, both online and in person. The speakers were the Chief of Mission of the IOM in the UK, the Executive Secretary of the Council of Europe’s expert group on human trafficking (GRETA), the Policy Lead on Modern Slavery at His Majesty’s Prison and Probation Service (HMPPS), the Director of Policy Impact at Modern Slavery PEC, and Head of Policy and Public Affairs at Hibiscus Initiatives.  

From left to right: Ann Snowden (HMPPS), Petya Nestorova (GRETA), Christa Rottensteiner (IOM UK), Marija Jovanovic (University of Essex), Olivia Hesketh (Modern Slavery PEC).
From left to right: Ann Snowden (HMPPS), Petya Nestorova (GRETA), Patrick Burland (IOM UK)

The report reveals the reality of how countries treat modern slavery survivors, which is more complicated than commonly thought. Dr Jovanovic pointed out that contrary to the clear and express international obligations of states to identify and protect the survivors of modern slavery and prosecute and punish the perpetrators, “it is not out of the question that there might be more survivors than perpetrators in UK prisons”. Instead of being protected, many survivors are sent to prisons sometimes for the crimes they were forced to commit by their traffickers. Jakub Sobik from the Modern Slavery PEC said: “Prisons represent a missing piece in the UK’s response to modern slavery – this groundbreaking research is the first one to fill this gap, even though there’s clearly more to uncover.”  

Audience at the launch event

The research identified key challenges in the UK’s complying with its international obligations to identify and protect every survivor of modern slavery, including those in prisons. They include: the lack of systematic information-sharing between prisons and the designated Home Office Competent Authorities in charge of victim identification; insufficient training of prison staff about the issue of modern slavery; prison staff not being authorised to refer potential victims to the National Referral Mechanism designed to facilitate victim identification and support; and barriers to disclosure in prison.  

The report also includes proposals for a number of legal, policy, and practical measures required to bring current practices in line with requirements arising out of international and domestic law. 

Audience at the launch event

For more details of the research and report, you can find the press release here and the full report here. 

From Judgment to Justice: Discussing the Implementation of International Judgments on Socio-Economic Rights in Johannesburg

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Dr. Casla’s visit to the South African Constitutional Court

By Dr Koldo Casla, Senior Lecturer in Law and Director of the Human Rights Centre Clinic

In the first week of November, I participated in a workshop on advancing the implementation of positive rulings on economic, social, cultural and environmental rights. The event took place in Johannesburg, South Africa, and it was jointly convened by Amnesty International and the International Network for Economic, Social and Cultural Rights (ESCR-Net). Taking stock of the discussion, some of us also held a meeting of the steering committee of the working group on strategic litigation of ESCR-Net.

The event gave us the opportunity to talk about specific examples of what is working and what not in strategic litigation around the world, with a particular focus on cases from Africa (South Africa, Kenya, Gambia and Malawi), but also from India (workers’ rights and the right to food), Canada (right to health of undocumented migrants), Ecuador (land rights of Sarayaku indigenous people) and Spain (evictions in the private rental sector).

The team deliberated on strategic approaches to address the challenges posed by the uncertainties associated with litigation and its enduring consequences. Emphasis was placed on the critical role of civil society in spearheading the identification of concerns and the implementation of judicial decisions.

We had the privilege of visiting the South African Constitutional Court, possibly the most important national court as regards the justiciability of socio-economic rights globally. The building is full of symbolism appealing to values of transparency, culture and accessibility of justice. It is built on top of the remains of a brutal prison of the apartheid regime. Gandhi and Mandela spent time there. The location is a powerful message about learning from the past to build a more promising future founded on the principles of the rule of law and human rights.

From the cells in the prison on Constitution Hill, where the Constitutional Court is located.

The occasion was also an opportunity to express solidarity with the Ogiek indigenous people in Kenya. Some of the community leaders were present at the workshop. Despite several rulings from the African Commission on Human and Peoples’ Rights, the Ogiek have suffered repeatedly violations of their human rights, including further evictions from their ancestral land.

An action in solidarity with the Ogiek people of Kenya, who have suffered multiple evictions and other human rights violations, as documented by the African Commission and Court of Human and Peoples’ Rights.

At the event, I talked about the UN Committee on Economic, Social and Cultural Rights (CESCR) as a venue for strategic litigation on housing rights in Spain. The Optional Protocol on Economic, Social and Cultural Rights was adopted in 2008 and entered into force in 2013. It allows individuals to lodge complaints in front of the CESCR against States Parties for violations of socio-economic rights. To this day, 26 countries have ratified this treaty. Spain was the third country to do so, the first one in Europe.

More than 90% of CESCR decisions concern Spain, and the vast majority of them are about the right to adequate housing. One of the most significant cases is Ben Djazia and Bellili v Spain (2017), where the CESCR made two big contributions to international human rights law: firstly, it established that the proportionality test applies to the private rental sector as well as the public one; and secondly, it ruled that the State had breached the principle of non-retrogression because in the background of the eviction there had been a large-scale sale of some 4,000 social housing units by regional authorities in Madrid to transnational real estate investment trusts.

Dr. Casla presented the Ben Djazia case at the workshop

Since 2019, Spain’s legislation has been amended several times, and some of those amendments have brought to life some of the recommendations of the CESCR. Not all recommendations have been taken onboard yet; in particular, the issues of progressive realisation and the adoption of a national plan have not been given due consideration.

However, judges are now given the opportunity to look at personal circumstances (while not obliged to do so), and there is an expectation of coordination between the judiciary and social services before an eviction is executed (but not a specific timeframe or duties on public authorities). Housing laws at regional as well as central/national levels have created additional duties for large landlords over small landlords, which the CESCR considers part of the proportionality test (López Albán v Spain, 2019).

The experience of strategic litigation on housing rights in Spain has taught us some valuable lessons.

Firstly, sometimes human rights progress comes from non-human rights litigation. In the case of Spain, the first major court victory was the Aziz case (2013), where the Court of Justice of the European Union ruled that foreclosure procedures must give judges the chance to look for potential unfair terms in the contract, opening the door to a kind of proportionality test. This ruling was based on consumer law (EU 1993 Directive), not human rights law.

Secondly, recent legal developments in Spain are a reminder that parliaments can play a central role in the implementation of international human rights rulings. After all, hardly anything can beat securing a majority in parliament for human rights-friendly legislation.

Thirdly, recent developments also show that in federal or quasi-federal countries, regions can indeed learn from each other in a sort of laboratory for democracy. As I show in Chapter 5 of Spain and Its Achilles Heels, I would argue that this is precisely what happened between several of Spain’s regional legislative chambers between 2013 and 2017.

Finally, we must not make perfect the enemy of the good. Not all of the CESCR recommendations have been implemented in Spain. The situation is far from perfect. Even those that have been implemented have been implemented only to some extent. However, in the spirit of joyful advocacy, it is important to celebrate victories when they occur, including partial victories, even if we do not achieve everything we may hope for.

Essex Law School Expert Praised in House of Lords for Work on Online Safety Legislation

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Photo by Marcin Nowak on Unsplash

Essex legal expert Lorna Woods has earned special recognition in the House of Lords thanks to her research and work supporting the landmark Online Safety Bill. The Bill successfully passed through Parliament and is now enshrined into law, having received Royal Assent on Wednesday 26 October 2023. The Act makes social media companies keep the internet safe for children and give adults more choice over what they see online.

Professor Woods has helped influence the bill after famously writing some of its founding principles on the back of a sandwich packet with the help of William Perrin, of the charity Carnegie UK, several years ago.

Professor Woods has continued to work with Carnegie throughout the last few years and provided expert advice to backbenchers and members of the House of Lords.

She was personally thanked following the final debate in the Lords by Lord Stevenson for her work on the bill.

Lord Clement-Jones added: “I pay my own tribute to Carnegie UK, especially Will Perrin, Maeve Walsh and Professor Lorna Woods, for having the vision five years ago as to what was possible around the construction of a duty of care and for being by our side throughout the creation of this bill.”

Professor Woods has become a high-profile commentator on the bill throughout its passage on Parliament, and recently recounted the “surreal moment “it was approved by the Lords in an interview with the BBC Online.

In a separate interview with Wired, Professor Woods responded to criticisms of the bill by insisting it would help protect the human rights of children being exploited and abused online.

She was also quoted in the New York Times’ own coverage of the Bill, and has also appeared on BBC Radio Five Live.

Professor Woods said: “The Bill is significant as it marks a move from self-regulation – where service providers decide what is safe design and whether to enforce their community standards – to regulation under which services are accountable for those choices.”

This story was first published on the University of Essex’s news webpages and is reproduced on the ELR Blog with permission and thanks. The story was edited to reflect the fact that the Bill received Royal Assent.

Igniting Impact: Essex Law School’s “Dragon’s Den” Event Fuels Research Innovation

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Photo by Diego PH on Unsplash

By Professor Carla Ferstman, Essex Law School

On 27-28 March 2023, we organized a “Dragon’s Den” themed event to highlight the incredibly impactful work being done at Essex Law School and to solicit feedback, encouragement, and ideas about how to take colleagues’ work to the next level.

Our “Dragons” included leading external experts from different policy domains relevant to colleagues’ research, including David Ciliberti (EU Commission, DG Just – Consumer Policy),  Ben Hayes (AWO agency), Fiona Rutherford (JUSTICE), Nick Wortley (Competition and Markets Authority); and Steven Malby (Foreign, Commonwealth and Development Office) and Mark Fuller (Showrunner Comms).

They, as well as members of Essex’s Research Impact team, were tasked with reviewing colleagues’ impact pitches and providing strategic, constructive advice about new angles, synergies, and other tactics to enhance ongoing impact and the potential for future impact.

Our “Dragons” included leading external experts from different policy domains.

The “Dragon’s Den” event coincides with the growing recognition of the importance of impactful research outside of academia, which is now fully incorporated into the Research Excellence Framework. The Research Excellence Framework (REF) has defined impact as ‘an effect on, change or benefit to the economy, society, culture, public policy or services, health, the environment or quality of life, beyond academia’. The Essex Law School had a very strong result on impact at the last REF assessment exercise in 2021, with 71.4% of its impact case studies achieving a 4* (top) ranking. We are looking forward to an even stronger result for 2028.

A snapshot of the brilliant minds that converged at Essex Law School’s “Dragon’s Den” event: impactful research, insightful advice, and future collaborations in one frame.

Twenty-seven colleagues with research already generating impact, or with strong impact plans, presenting their work to the “Dragons” and fellow colleagues during the two-day event. These colleagues, some with many decades’ experience and others much mewer in their research careers, “pitched” research in a vast array of subject areas including, food and alcohol labeling, legal aid cuts, business and human rights, consumer law, corporate social responsibility, migration, refugees and trafficking in persons, environmental law, the law of armed conflict, anti-racist approaches to end-of-life, cyber law and cybersecurity, transitional justice, detention and hostage-taking, abortion rights, adoption and family law, social rights and more.

The “Dragons” selected two case studies, one from each day, as showing the most promise: Dr Francis Rees’ work on Exploitative Practices of Child Digital Labour on Social Media Platforms and Professor Noam Lubell’s work on Cumulative Civilian Harm in War. Well done to both!

Connections were forged, knowledge was shared, and ideas ignited during our “Dragon’s Den” event. Together, we shape the future of impactful research.

We are excited to see how all colleagues take their work forward and continue to innovate both in the United Kingdom, regionally, and globally. Watch this space!

Front-of-Pack Nutrition Labelling: Time for the EU to Adopt a Harmonized Scheme 

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By Dr Nikhil Gokani (Essex Law School) and Prof Amandine Garde (School of Law and Social Justice, University of Liverpool)

Nutri-Score label as published by Santé Publique France

In its Farm to Fork Strategy, published nearly 3 years ago in May 2020, the European Commission committed to ‘propose harmonised mandatory front-of-pack nutrition labelling’ (‘FoPNL’) to ‘empower consumers to make informed, healthy and sustainable food choices’ by the fourth quarter of 2022. This commitment was repeated in Europe’s Beating Cancer Plan in February 2021. The deadline has now passed and the promised proposals do not seem forthcoming. This is all the more disappointing considering there is strong support for the implementation of an EU-wide harmonized FoPNL scheme, as demonstrated by the results of the EU consultation on ‘Food labelling—revision of rules on information provided to consumers’ published in December 2021.

Such support is not surprising considering the significant advantages that the adoption of a harmonised FoPNL scheme has for consumers, traders, Member States and the EU alike.

  • From the perspective of consumers, an effectively designed FoPNL scheme helps inform them of the nutritional composition of food. Informing consumers lies at the heart of the EU’s consumer protection strategies and reflects its long-held view that regulating food labelling empowers consumers to make healthier choices whilst promoting the objectives of market integration. At present, the EU only mandates a small table of nutrition information on the back of food packaging. This is often hard to see and difficult to understand, whereas effectively designed FoPNL can provide easy-to-see and easy-to-understand information on the front of food packaging thus supporting healthier food choices.
  • From the perspective of traders, harmonized FoPNL will create a level playing field by reducing regulatory fragmentation, which will also increase legal certainty and lower labelling costs. There are currently 7 national FoPNL schemes recommended across 15 EU Member States. Further industry-led schemes are used, although they have not been officially endorsed by any Member State. While some manufacturers have adopted FoPNL, many have not, and others are using multiple different schemes.
  • From the perspective of Member States, a mandatory, EU-wide FoPNL scheme will contribute to improving diets and health outcomes. Current EU rules prohibit the adoption of FoPNL schemes which are interpretive, and do not facilitate the adoption of FoPNL schemes which are easy to use. They also prevent Member States from making FoPNL mandatory.
  • From the perspective of the EU itself, a harmonized FoPNL scheme will promote the proper functioning of the internal market in line with the EU’s mandate to ensure a high level of health and consumer protection in all its policies. Moreover, it will facilitate the compliance of all its Member States with the commitments that they have made at international level to promote healthier food environments.

The choice of any single scheme must be guided by evidence. The Commission’s Joint Research Centre reviews, published in 2020 and 2022, identify what makes FoPNL effective:

  • colour-coded labels draw consumer attention through increased salience, are preferred by consumers, are associated with increased understanding and encourage healthier food purchases;
  • simple labels require less attention to process and are preferred and more easily understood by consumers; and
  • consumers prefer and better understand consistent and simple reference quantities.

In its Inception Impact Assessment of December 2020, the Commission put forward four types of labels as contenders for a harmonized, mandatory EU-wide scheme: graded indicators (e.g. Nutri-Score); endorsement logos (e.g. Keyhole); colour-coded (e.g. Multiple Traffic Lights); and numerical (e.g. NutrInform). It is clear that of the four schemes considered in the Inception Impact Assessment, Nutri-Score is the only one meeting the criteria above, and its effectiveness is strongly established. Not only does it attract consumers’ attention, it is favourably perceived and well understood. It also has a positive impact on the nutritional quality of purchases. Additionally, the nutrient profiling model underpinning Nutri-Score has been extensively validated and shown to be associated with improved health outcomes. Even if no scheme will ever be described as ‘perfect’ by all stakeholders, its developed evidence base and adoption by a growing number of Member States, makes Nutri-Score the only viable option for the timely implementation of a mandatory, harmonised FoPNL scheme in the EU.

Growing rates of obesity and other diet-related diseases increase the urgency for the EU to act. We, therefore, call on the Commission to propose legislation requiring food to be labelled with Nutri-Score on a mandatory basis across the EU, as it has committed to do.

This post was originally published as an invited editorial in the European Journal of Public Health in June 2023. It is available here.

Nikhil Gokani is an expert in the regulation of front-of-pack nutrition labelling in the EU and globally. Please click here for his profile and contact details.

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

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Image via Shutterstock

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).

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.

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Teaching the Right to Information without Chairs: Human Rights Education on a Kathmandu Dance Floor

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By Professor Lars Waldorf, Essex Law School

Once again, I was called on to be living proof that anyone can dance. I showed off my worst moves. I told how my wife recently abandoned me on the dance floor. The facilitator confirmed that I was the tensest person he had ever encountered in his inclusive (mixed-abled) dance workshops. Once again, we put my own embodied embarrassment to some use: to begin the process of breaking down barriers, reassuring workshop participants, encouraging inclusive dance aesthetics, and thereby co-creating a safe space for bringing dance, disability, and rights together. 

What was different this time is we were training Nepali dancers, lawyers, and, most importantly, war-disabled activists in a pioneering method of transformative human rights education developed by VisAbility in Sri Lanka (with support from the UK Arts and Humanities Research Council (AHRC), British Council, Goethe Institute, and Schmitz Stiftungen). What was also different is we were focusing specifically on the Right to Information (RTI) as a way for war-disabled people to demand more transparency and fairness in the provision of social protection and reparations. 

This South-South training and knowledge exchange was led by Mahesh Umagiliya, a Sri Lankan choreographer/dancer and a co-founder of VisAbility, alongside Vinothine Balasubramaniam, a Sri Lankan RTI activist. The Nepali participants came from the National Network of Disabled Conflict Victims (NNDCV), the human rights NGO Advocacy Forum, and the music school NAAD Sangeet Pathshala. I was there not only as an ice-breaker, but also to provide some (much less fun) training on project evaluation, ethics, and data management in my role as Principal Investigator on our Performing/Informing Rights project.

Background

Civil war inevitably maims and mutilates. After war, people with conflict-related, physical impairments are likely to experience extreme poverty, social exclusion, and illegal discrimination – notwithstanding the promise of the 2030 Agenda for Sustainable Development to “leave no one behind” and notwithstanding 184 states ratifying the UN Convention on the Rights of Persons with Disabilities. This is certainly the case in post-war Sri Lanka and Nepal where disabled people frequently lack the knowledge, confidence, resources, and access to claim their rights, benefits, and reparations. 

Our earlier AHRC-funded Performing Empowerment project (2016-18) brought together transformative human rights education, legal empowerment, and inclusive dance to enable war-disabled people in northern and eastern Sri Lanka to claim their rights and benefits. However, a few disabled participants became understandably frustrated and discouraged by a lack of government response to their applications for disability benefits. As a result, we saw a need to empower disabled people to chase up their claims-making to government officials using Sri Lanka’s strong RTI law. Hence, this new AHRC-funded Performing/Informing Rights project (2021-23) that not only adds RTI to VisAbility’s trainings in Sri Lanka but also tests whether VisAbility’s methods can be adapted and applied to Nepal’s post-war context.

Both projects develop a novel form of transformative human rights education for disabled and non-disabled people using dance. According to a 2011 UN Declaration, human rights education is all about “empowering persons to enjoy and exercise their rights and to respect and uphold the rights of others.” Transformative human rights education takes this further through experiential learning focused on how rights can address everyday forms of political, economic, and social exclusion. It also emphasizes playful, participatory, and embodied learning. Indeed, dance has been used to teach, perform, and campaign for human rights, perhaps most famously with the One Billion Rising Campaign.

Both of our projects also pioneer a more holistic form of legal empowerment. Legal empowerment is a form of rights-based development by which the poor are enabled to use law to make rights claims and improve their livelihoods. Despite the UN Sustainable Development Goals’ call to empower disabled persons and provide “equal access to justice for all,” there has been surprisingly little attention to how legal empowerment might help war-disabled people. VisAbility has started filling that gap while also using inclusive dance to combine somatic and psycho-social empowerment with legal empowerment.  

Mixing Rights and Dance 

It’s not easy to combine rights and dance. For one thing, law privileges words, whereas dance relies on embodied expression. For another, there is a risk of instrumentalizing dance and thus losing some of its creative potential. Furthermore, the most visible examples tend to be professional performances, such as William Forsythe’s “Human Writes” and Pichet Klunchun’s “7 Decades of Human Rights,” rather than grassroots, education projects.

VisAbility is still experimenting with how best to mix dance and rights – something that Mahesh has likened to “putting sweet buns with chilli sambal”. Initially, its workshops had separate sessions on each. With the Performing Empowerment project, VisAbility started explicating dance movements through rights language and teaching rights using those movements (partly as mnemonic devices or body memories). 

With this new project, VisAbility is aiming for a more ambitious synthesis of dance and rights. That first meant Vinothine training Mahesh on RTI and him leading an RTI training himself. It also meant Mahesh training Vinothine on dance and VisAbility’s methods. They then worked closely with Helena-Ulrike Marambio, the project’s Post-Doctoral Research Associate, to develop a draft training resource. However, Sri Lanka’s economic and political crisis meant Mahesh and Vinothine had to do this all online in the face of electricity outages. It wasn’t until they got to their Kathmandu guesthouse that they could actually start working through the resource together in the same physical space. 

For Mahesh, one of the biggest challenges is that RTI training involves “a lot of information you have to deliver” which is “really hard to put into a dance task” because it needs to be learned “as information, not as something else, not as something realized in a symbolic way.” Another challenge was to “create a methodology that was not only suitable for Sri Lanka but can be used in another country also.” 

Training and Knowledge Exchange

Even though the Nepali participants knew they would be learning dance and RTI, they were wrong-footed from the get-go. As Amisha Adhikari, one of Advocacy Forum’s lawyers, told us afterwards: “When they first entered the workshop venue, they were stunned because they did not see any chairs, any writing materials, projector, all that stuff. So, they kept coming to me asking … How are you going to talk about RTI [without that]?” What Mahesh and Vinothine quickly demonstrated is that moving bodies are a whole lot more fun than PowerPoints. As Vinothine put it, “without boring [them], we can deliver our knowledge and participants are engaged with the dance.”

Mahesh and Vinothine didn’t hesitate to deviate from the training resource as they read both the mood and bodies in the room. Still, some of the RTI exercises proved too complicated, which prompted me to suggest we “simplify and exaggerate” – simplify the RTI content and exaggerate the movements to make things more memorable. So, we focused on five key stages of the RTI process rather than trying to teach all 13 stages. Participants proposed movements to represent each RTI stage and we voted as a group for the ones we liked the best. Mahesh then helped us simplify and exaggerate the five chosen movements and had us rehearse the sequence over and over, so the RTI process became muscle memory. As Amisha later said: “The law is very complicated, right … but once they perform it by themselves through movements, through gestures, they will be able to remember those gestures and movements even if they don’t remember the legal provisions.” Earlier, though, she had had some doubts: “As a law student and as a lawyer, I always felt like law requires seriousness. … Dance is more like entertainment. So, I was confused how the two of them will work [together].”

Mandira Sharma, a prominent human rights lawyer and founder of Advocacy Forum, told me that she too had initially been “very puzzled” and “a little bit sceptical” about how dance and rights could be combined. But she explained that the training had “really opened our minds” as they saw how dance made it “easier for a non-legal person to really understand what the RTI process is about.” She added that dance is “really an empowering tool – even for us [as human rights activists].”

Moving from Dance Performances towards Street Theatre

On the last afternoon of the workshop, Mahesh choreographed a short work of “street theatre” (often a mix of theatre, dance, and music performed outdoors) that depicted a war-disabled woman using the RTI process to gain the government-issued disability card that entitles her to interim reparations. After just three, rather free-wheeling rehearsals, we performed for staff of the Taragaon Museum that had so generously hosted us. Afterwards, one audience member encouraged us to perform in more venues, including hospitals and rehabilitation centres.

VisAbility usually caps its workshops with dance performances at parks, outdoor markets, and street junctions. The performances serve three important purposes. First, they build cohesion and solidarity among the workshop participants. Second, they help empower participants: once they have danced in public spaces, they are less shy about performing their rights to government officials. Finally, they challenge the stigmatizing, shaming, and invisibilizing of disabled people in everyday life. As Gerda König, the German choreographer and VisAbility co-founder, has said: “Yeah, [people] are staring at them, or they look away, or they don’t even see them, but [for the workshop participants] to be as a crowd there [gives] so much power.”  

Until now, VisAbility’s dance performances have been mostly abstract or non-representational. There was some resistance to using dance didactically to tell stories about challenging discrimination and claiming rights. But with this new project, VisAbility is moving towards more representational movements (partly due to more co-creation with workshop participants) and then integrating that with verbal storytelling about RTI. This may prove more resonant for participants and audiences. After all, there is a rich tradition of using street theatre to challenge injustices in Nepal and Sri Lanka. And street theatre has been used to promote RTI awareness in places like Bangladesh, India, and Sri Lanka. 

While all of us were energized by our three days together, the real test comes when our Nepali colleagues start conducting their own dance and RTI workshops, as well as performances, with war-disabled and non-disabled people at the grassroots level. 

Policing Priorities: Essex Law School academic submits evidence to the Home Affairs Committee

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Policing in England and Wales is under more scrutiny than ever, following high-profile criminal and disciplinary cases involving police officers, low charging and detection rates (not least for rape and sexual offences cases), and lingering concerns about how forces deal with women and people from minority communities.

On 21 July 2022, the Home Affairs Committee launched an inquiry into the priorities of policing at a time when public confidence in the police is low and six of the nation’s forces have been hit with special measures. The Committee will publish its final report in early 2023. Dr. Simon Cooper responded to the Committee’s call for evidence.

Dr Cooper’s research, previously reported exclusively in The Times and published in Policing: A Journal of Policy and Practice, found that Police and Crime Panels (PCPs), introduced as part of flagship Conservative reforms in 2011 are ‘toothless’, leaving police accountability, for the first time in history, largely dependent on the one-to-one relationships between Chief Constables and elected Police and Crime Commissioners (PCCs).  

His submission to the Home Affairs Committee argues that the relational accountabilities of Chief Constables, PCCs and PCPs are unbalanced, untested, and risky. 

In addition to recommending that the role and powers of PCPs be strengthened, a key conclusion of his submission is that the Home Secretary must exercise their statutory power and consult with the parties bound by the Policing Protocol to examine if the Policing Protocol should be varied or possibly replaced.

Notably, Dr. Cooper’s submission also calls on the Home Secretary to introduce a Memorandum of Understanding to bind PCCs and Chief Constables to ensure ‘effective, constructive working relationships’ are not just a quixotic pursuit but a practical reality that helps safeguard the accountability and governance of policing.

Dr. Cooper’s previous work was cited by the House of Commons in its 2021 report on Police and Crime Commissioners and the House of Lords in its 2022 report on Police and Crime Commissioners: Powers and Functions. Previous recommendations made by him were also adopted by the Strategic Review of Policing in England and Wales in 2022.