Alexandros K. Antoniou, Lecturer in Media Law, University of Essex*

On 19 December 2018, Mr. Justice Nicklin handed down the judgment in Monir v Wood, ordering the defendant, the chairman of a local branch of a political party, to pay GBP 40 000 in damages for a defamatory message sent by a branch member through the branch’s Twitter account. The judgment highlights the potential liability of those who set up social media accounts and then delegate responsibility to others to post on their behalf.

The claimant in this action was Zahir Monir, a businessman and Labour activist from Rotherham. He brought libel proceedings against Stephen Wood, the former chairman of the Bristol branch of the UK Independence Party (UKIP), over a tweet published on the branch’s Twitter account on 4 May 2015, shortly before that year’s General Election. Although it did not directly identify the claimant, the tweet comprised a photograph of him alongside the Labour MP for Rotherham, Sarah Champion, and another man. The text of the tweet, which evidently referred to the photograph, stated that the Labour candidate “stood with 2 suspended child grooming taxi drivers. DO NOT VOTE LABOUR.” The allegation against the claimant was false. Mr. Monir sued the chairman of the branch, Stephen Wood, contending that he had been defamed by the tweet and that Mr. Wood was legally responsible for it. However, the tweet had actually been written and posted by the vice chairman of the UKIP Bristol branch, John Langley, to whom responsibility for the operation and control of the account had been delegated by Mr. Wood.

On the facts, the Court found that “ultimate control” of the Twitter account remained vested in Mr. Wood “at all times”, as it was registered using his email address. The claimant complained to the defendant about the tweet on 8 May, but the defendant had not focused on the offending tweet’s precise terms until after the police intervened on 1 June. The defendant had also become aware of earlier racist postings by the vice chair, but nevertheless decided not to remove him from the account for reasons “clearly born of political expediency” given the forthcoming election.

As regards the issue of meaning, Nicklin J. took the view that the ordinary reasonable reader would understand the offending tweet to mean that “the two men were involved in the sexual abuse of children.” This was a “very seriously defamatory allegation” of conduct amounting to a serious criminal offence that would result in a substantial term of imprisonment following conviction. As such, the tweet was also deemed to have met the “serious harm” threshold under the Defamation Act 2013. Moreover, the judge was satisfied that Mr. Monir successfully established that the tweet at issue had been published to a number of people who understood the words in it to refer to him. Also, the republication of the tweet via WhatsApp was likely to have led to “a significant, but unquantifiable number of people” identifying the claimant from the photograph.

The defendant, who had not posted the tweet on the Bristol UKIP Twitter account himself, denied responsibility for its publication. After reviewing the relevant authorities, Nicklin J. concluded, however, that the defendant was liable for the tweet on the basis of agency: Mr. Wood had created the Bristol UKIP account and retained control over it both practically and by means of his authority as chairman of the Bristol branch. The libellous tweet was posted by Mr. Langley, not on his own account, but in his capacity as campaign manager in the course of executing the task delegated to him by the defendant, i.e. campaigning for Mr. Wood and Bristol UKIP. In Nicklin J.’s judgment, the evidence of Mr. Wood’s knowledge of the tweet in question was also sufficient to infer that “he acquiesced in and thereby authorised its continued publication.”

On the issue of remedies, Nicklin J. concluded that the gravity of the defamatory allegation put it “towards the top end of seriousness” for calculating damages. Although the scale of the publication was fairly limited, the Court assessed the significance of the publishees as well as the extent to which publication to them had tarnished the claimant’s reputation and increased his hurt and embarrassment. Further, the evidence of serious and significant reputational harm was compounded by the defendant’s “mean-spirited stance” and refusal to publicly apologise and withdraw the allegation. Nicklin J. found that the appropriate award was GBP 40 000. If this libel had been published in a national newspaper, a figure of GBP 250 000 or more would have been “easily justified.” Finally, there was no evidence of the defendant threatening to republish the offending tweet or anything similar and thus an injunction was unnecessary in the circumstances.

*Reblogged from IRIS Merlin blog

 

Dr Andrea Fejos, Lecturer in Law, University of Essex. Dr Fejos researches and teaches in the areas of consumer contract law and financial services law. She has published on a range of topics including on standard form contracts, unfair contract terms, consumer credit, consumer alternative dispute resolution and enforcement of consumer rights.

 

The 1993/13/EC Unfair Contract Terms Directive (hereinafter: the Directive) is among the oldest European consumer protection instruments, and recently became a catalyst for major legal reforms with social impact, improving the lives of millions of consumers.

The financial crisis hit many consumers hard, in particular making their mortgage loans more expensive than anticipated. Loan instalments could eat up most of the consumers’ income, posing a serious risk of poverty and homelessness. Since the contract terms regulate much of the relationship between consumers and financial firms, the detriment could often be traced back to one or more unfair contract terms. When consumers asked their national courts to remove these from their contracts, the national courts sought help from the EU’s Court of Justice (hereinafter: the Court) in interpreting their unfair contract terms provisions that are based on the Directive. In doing so, national courts came to ‘unexplored territory’.

In over a decade prior to the financial crisis there had been few chances for the Court to interpret the Directive. The Court was mostly asked to clarify the scope of the Directive’s Article 6, on the consequences of unfair terms. In doing so, it provided a valuable contribution to a high level of consumer protection e.g. obliging national courts to decide on the unfairness of a contract term also on their own motion, without an explicit request of the claimant and without establishing a time limit for asking national courts to rule on unfairness.

Unfortunately, despite the fact that the judgements of the Court are binding, many of these decisions and instructions by the Court were not respected in practice, meaning that these achievements had a limited real effect on consumer welfare.

A sleeping giant

In addition, some important aspects, such as the meaning of “transparency” of consumer contracts under Article 5 and 4(2) of the Directive, which affects the drafting and interpretation of contract terms, did not get sufficient attention. The Court also refrained from taking advantage of the presented opportunities in interpreting the general concepts of “good faith” and “significant imbalance” in the Directive’s test of fairness in Article 3(1). Apart from the first case when the Court declared a jurisdiction term unfair, the Court repeatedly reiterated its inability to rule on the fairness of particular contract terms, stressing that its powers were limited to providing general guidance on the concept of fairness, leaving the application of these general rules to the facts of the case to the national courts. In giving general guidance, the Court generally did no more than to repeat the text of the Directive. For more than a decade, the protective effect of this essential piece of EU consumer protection law depended on national courts’ interpretations, without a tangible overall effect on European consumer welfare.

This was changed by the financial crisis and its aftermath, which resulted in a virtual torrent of cases. The increased case-load pushed the Court to be more interventionist, and the effect of these judgments went way beyond individual cases.

A paradigm shift  

In 2013, the Court delivered its judgment in a landmark case known under the name of the consumer claimant “Aziz”. In this case the court considered the controversial Spanish mortgage enforcement procedure and ruled the national court’s inability to pause the mortgage enforcement procedure while the court rules on the fairness of a contract term is incompatible with European Union law. Importantly, the Court also gave general guidance on the understanding of the two limbs of the test of fairness in Article 3(1) of the Directive and for the very first time gave guidance in applying those general principles to specific contract terms: to payment acceleration terms (terms that allowed creditors to call in the entire debt upon default) and terms that fixed the interest payable upon default.

This judgment resulted in a major law reform in Spain. Incorporating the Aziz ruling, Law 1/2013 introduced important rules on making these loans cheaper and safer to use by capping the default interest and limiting the applicability of payment acceleration clauses (amending the Spanish Mortgage Act). It also strengthened the position of debtors in mortgage enforcement proceedings (amending the Civil Procedure Code).

The Court delivered another landmark decision in 2016 on Spanish “floor clauses”, clauses that capped the minimum interest rate to ensure the banks do not suffer loss in case of negative interest rates. Although the Spanish Supreme Court had already established the unfairness of these clauses, it had limited the effect of its judgment to the future. When the cases were referred to the European Court of Justice, the Court found this approach incompatible with the Directive. It ruled that unfair terms must be regarded as never having existed, and thus the position of consumers must be accordingly restored. The judgment was followed by the adoption of another new Spanish Law 1/2017 based on which consumers that suffered losses must have been repaid affecting 2.5 million mortgage holders.

Finally, the case of Kásler involved a mortgage loan indexed in foreign currency, a type of a loan common to many Member States causing particularly significant detriment in Hungary where these loans amounted to 90 percent of the mortgage portfolio. In Kásler, the Court delivered a valuable interpretation of Article 4(2) of the Directive, establishing that contract terms transferring the exchange rate risk onto consumers (where the banks more expensive selling rate of exchange was applied to calculate loan instalments) can only be exempted from the test of fairness (as an excluded “price” term) if they provide for an essential obligation under the contract and if they are understandable to the extent that consumers are able to estimate the economic consequences of the terms. This judgment ultimately resulted in the adoption of the Hungarian Act XXXVIII of 2014 that declared contract terms transferring the exchange rate risk onto consumers null and void, retroactively replacing these with the official exchange rate of the Hungarian National Bank. In addition, based on Act XL of 2014 banks were ordered to compensate individually every consumer for the loss that they have suffered.

The financial crisis and the surge of cases raised interesting (and perhaps for many controversial) questions on the relationship of courts and the legislator, however, in practice, these judgments delivered significant social justice for consumers. This recent case-law transformed the EU directive on unfair contract terms from being a “toothless tiger” to a potentially very powerful instrument, producing social justice effects that were probably not anticipated and that somewhat remained hidden as when one stands behind frosty glass.

Photo credit: Nerdwallet.com

* Reblogged from the BEUC blog

 

Alexandros K. Antoniou, Lecturer in Media Law, University of Essex

On 13 July 2018, Ofcom, the UK communications regulator, published two qualitative research reports (here and here) on people’s attitudes towards online news consumption.

The purpose of the research was to acquire a more detailed understanding of the behaviours sitting behind the increase in the number of people accessing the news via online platforms in order to inform policy considerations. Respondents, who were selected to represent a cross-section of the United Kingdom, were asked to complete a combination of online pre-tasks as well as a set of activities on their media use. The data captured was followed by in-depth interviews and group discussions, exploring participants’ views on their own news intake and their engagement with such content.

Although news plays a significant role in people’s everyday lives in several ways, some respondents reported that they felt overwhelmed by the sheer volume of news in circulation and increasingly stretched across a wide range of sources and content. In some instances, a feeling of social pressure to keep up-to-date with the latest news was expressed. Feelings of negativity and fatigue featured strongly in the participants’ characterisation of the news, with some respondents claiming to have become ‘news avoiders.’ An important consequence of this overloaded news landscape appeared to be increased levels of faster and less critical processing of news, with participants often engaging with multiple sources only at a superficial level. Ubiquitous newsfeeds and features like push notifications were shown to drive further passive consumption.

The majority of the respondents’ news consumption occurred via news-aggregators or social media, which remain largely unregulated. The ‘blurred’ boundaries between news and other content (for instance, advertising and entertainment) on these platforms made it difficult for participants to discern what ‘counts’ as news and identify its original source. Most respondents had a general awareness of ‘buzzwords’ associated with current concerns around online news, for example ‘fake news’, but demonstrated varying levels of understanding of their meaning, whilst few of them adopted effective mechanisms to counteract these types of issues. In order to assess the accuracy, importance and reliability of online news, most individuals relied on shortcuts and their own heuristics, such as the number of times an article was shared, liked or retweeted. Some younger respondents used the rule of thumb that if an article had an embedded still or moving image, it was probably true.

The research also revealed a mis-match between the number of online stories participants said they looked at and those they actually saw, showing that people tend to underestimate how much news they consume online. This finding also suggests that the extent of online news consumption is essentially unknown. Unconscious processing of news, encouraged at times by smartphone user interfaces, might account, to some degree, for its under-reporting.

The studies also highlight that concerns about online news should be set against a backdrop of distrust in media, public figures, politicians and other institutions. Although some participants recognised the role of news media in exposing wrongdoing, others expressed uncertainty over what the news is actually telling them. Finally, the research acknowledges that the rapid and significant changes to the current news landscape have given rise to complex challenges in relation to how people understand and navigate news today, thereby strengthening the argument in favour of independent regulatory oversight of the activities of online companies.

Reblogged from the IRIS Merlin blog

Entre Coacción / Colaboración – a new book co-authored by Professor Sabine Michalowski of the University of Essex Law School – looks at the recent peace agreement reached in Colombia, in the framework of transitional justice.

The Final Peace Agreement between the Colombian government and the FARC-EP created a complex transitional justice system which includes the Special Jurisdiction for Peace (SJP) as its justice component. Under the SJP, only those who have the highest responsibility for the gravest crimes will face criminal sanctions, and these sanctions will be reduced, provided they accept full responsibility and contribute to truth, reparations and guarantees of non-recurrence. Those whose participation in conflict-related crimes does not reach this high level of responsibility will benefit from amnesties or waivers of prosecution if they engage in truth, reparation and guarantees of non-recurrence measures.

One innovative characteristic of the SJP is that its competence is not limited to state actors and members of armed groups, but also includes third party actors – terceros civiles: those persons who participated in the armed conflict without being members of the armed groups. Nevertheless, as a consequence of a decision of the Colombian Constitutional Court, the SJP only has competence over third-party actors if they voluntarily submit to its jurisdiction. In the absence of a voluntary adherence to the SJP, the ordinary Colombian criminal justice system will retain jurisdiction over them. The book focuses on one particular subset of third-party actors, economic actors – that is actors whose participation in conflict-related crimes was linked to their economic or commercial activities. To address the potential criminal responsibility of these actors for their role in the conflict requires determining the patterns of their collaboration with the armed actors and translating that into concepts of criminal liability.

Countless judicial documentation of the role of economic actors in the Colombian armed conflict already exists. The decisions of the Justice and Peace framework, the Colombian transitional justice process that exclusively deals with the criminal responsibility of demobilised members of armed groups, in their vast majority paramilitaries, contain many mentions of economic actor involvement with paramilitary groups. Decisions against politicians in the ordinary criminal jurisdiction in the context of the so-called parapolitics phenomenon, the close collaboration between politicians and paramilitary groups, also provide some information one economic actors. Lastly, the implementation of the Victims and Land Restitution Law sheds light on the involvement of these actors regarding irregular appropriation of land from victims of forced displacement and dispossession.

The first part of the book examines the available information on economic actors in order to reveal patterns of macro-criminality and networks of support that have fuelled the development and entrenchment of armed groups and have contributed to the perpetuation of the armed conflict in Colombia. This empirical analysis highlights, inter alia, the regions and municipalities in which economic actor involvement was concentrated, which economic sectors most prominently collaborated with armed groups, and the most emblematic cases of collaboration: providing financial and logistical support to paramilitary groups and involvement in land displacement and dispossession. Another important finding is that in many cases, economic actors were coerced into collaborating with armed groups.

The discussion then moves on to an analysis of the particular problems caused by the fact that the transitional justice tribunals only had competence over the demobilised members of armed groups and had to refer the cases of economic actors, whose collaboration with them came to light, to the ordinary jurisdiction, where very few cases against economic actors were followed up and large-scale impunity instead prevails.

Clarifying the legal criteria according to which the criminal responsibility of economic actors can be determined is of immense importance not only for bringing an end to high levels of impunity, but also for determining which cases deserve criminal prosecution under the SJP, and which might instead result in waivers of prosecution. In the second part, the book therefore analyses how to hold economic actors to account for their participation in conflict-related crimes committed by the members of armed groups, in particular, in relation to the emblematic cases of financing armed groups and of land displacement.

These actors will regularly not have committed grave international crimes through their own hands, but rather have contributed through their commission by collaborating with the armed groups. The book therefore suggests that complicity, a legal concept that has rarely been used in the Colombian context but plays a predominant role in international criminal law, will in many cases provide the most appropriate way to conceptualise the role of economic actors in the Colombian conflict. Through providing an overview of international criminal law standards, key decisions from various other countries, and how they apply to the particular features of economic actor involvement, the book aims to answer difficult questions such as “What type of collaboration with an armed group gives rise to criminal responsibility?” and “Under what circumstances can they be absolved from criminal responsibility based on coercion?”

 

Con la firma del Acuerdo Final de Paz entre el Gobierno de Colombia y las FARC-EP, se ha puesto en marcha un complejo sistema de justicia transicional para procesar a los perpetradores de los crímenes cometido en el contexto del conflicto armado, contribuir a la verdad y el reconocimiento de lo ocurrido, y satisfacer los derechos de las víctimas. Este sistema integral incluye la Jurisdicción Especial para la Paz (JEP) como su componente de justicia, diseñado para investigar, juzgar y sancionar las graves violaciones de los derechos humanos y los crímenes internacionales. Bajo la JEP, los actores que participen por medio de aceptar la plena responsabilidad y contribuir al registro de verdad beneficiarán de sentencias reducidas (ya sea multas de reparaciones, privación de libertad reducida, o la renuncia de penalidad).

Una característica novedosa de la JEP es su competencia sobre terceros civiles: aquellas personas que, sin hacer parte de ninguno de los bandos en confrontación, participaron en el conflicto armado interno. La Corte Constitucional ha fallado que la JEP tiene la competencia sobre estos terceros civiles solo si abordan voluntariamente su jurisdicción. En ausencia de someterse voluntariamente ante la JEP, la jurisdicción ordinaria retendría la jurisdicción sobre estos actores. Un subconjunto particular de terceros civiles, actores económicos, ha recibido poca atención con respecto a su implementación en el sistema transicional, así se deja una plétora de cuestiones sin resolver. En particular, los temas de fragmentación del tratamiento de los actores económicos (ya sea aborden voluntariamente ante la JEP o se juzguen bajo la jurisdicción ordinaria) se discuten robustamente.

En la primera parte del libro se presente un análisis transversal de la participación de los actores económicos en el conflicto armado, como se discute dentro de las sentencias del marco de Justicia y Paz, el escándalo parapolítica, y la implementación de la Ley de Víctimas y Restitución de las Tierras. A través de analizar los datos extraídos de las sentencias jurídicas, los autores de este libro exploran las metodologías que se utilizaron los jueces, fiscales y investigadores bajo cada de los marcos. En particular, el libro discutirá los efectos negativos de esta fragmentación y descentralización del proceso judicial y su efecto en la responsibilidad penal de los actores económicos, una problemática que deriva predomanente del los diseños estructurales institucionales de cada de los tres procesos.

La segunda parte discute los existentes estándares nacionales e internacionales del tratamiento de los actores económicos. Un asunto problemático que se elabora es la dificultad de determinar las varias formas de participación de los actores económicos. En particular, la complicidad como forma de responsabilidad penal, es un concepto jurídico cuya aplicación apenas se ha invocado en Colombia. Resaltando la jurisprudencia importante de derecho internacional así como decisiones clave desde otros países, los autores pretenden de contestar preguntas difíciles como ¿Qué tipo de colaboración con un grupo armado es necesaria para que un actor económico pueda ser considerado como responsable penalmente? y ¿Qué nivel y tipo de coacción puede servir para eximir el actor económico de responsabilidad penal?

Clarificando cuales criterios se usan y en cual manera para determinar responsabilidad penal de actores económicos es de suma importancia no solo para poner fin a los niveles altos de impunidad sino también para poder construir un registro comprehensivo de los patrones de macrocriminalidad y las redes del apoyo que han persistido en el conflicto colombiano. Por ende, la contribución crítica de este libro a la aclaración de los papeles que desempeñan los actores económicos se erige como un indicador para la JEP de nuevo funcionamiento, así como los académicos, las organizaciones y gobiernos tanto a nivel nacional como globalmente. `

Photo credit: International Law Blog

Hilary Charlesworth (University of Melbourne), Gina Heathcote (SOAS), Emily Jones (University of Essex)

(Full text of the article)

The world of international relations and law is constantly changing. There is a risk of the systematic undermining of international organisations and law over the next years. Feminist approaches to international law will need to adapt accordingly, to ensure that they continue to challenge inequalities, and serve as an important and critical voice in international law. This article seeks to tell the story of feminist perspectives on international law from the early 1990s till today through a discussion between three generations of feminist international legal scholars: Hilary Charlesworth, who, with her colleagues, contributed to the area in the immediate post-Cold War years, Gina Heathcote, who over the past decade has published extensively on feminist perspectives on the use of force and collective security, and Emily Jones, an early career scholar working on feminist approaches to international law.

The conversation, which began as a Skype discussion, considers both the ways in which feminist approaches to international law have changed over the past two decades, as well as the ways in which they have been shaped by global politics, before turning to consider the future for feminist approaches to international law. The impact of feminist approaches to international law has been considerable. However, it seems that feminist approaches still lack legitimacy and credibility in many mainstream circles, remaining on the disciplinary periphery. Charlesworth, Heathcote and Jones discuss potential ways in which to manage some of these tensions, noting both the importance of ‘speaking to ourselves’ (Charlesworth in Feminist perspectives on contemporary International Law: Between resistance and compliance? Hart, Oxford, pp. 17–32, 2011) as a creative and nurturing space, as well as the need to be seen as a more credible voice in the mainstream. They note the need, too, for further feminist work beyond the realms of sexual violence and women’s representation. While the great amount of work in this area is, indeed, foundational, having achieved many important legal and political outcomes, feminist approaches should now develop beyond these areas.

Doing so will not only propel this area of scholarship in new and exciting directions, but it might help feminist scholarship gain further traction by avoiding categorisation only under the umbrella of “women’s issues” and thus ready dismissal as just another specialist area of international law in the era of fragmentation.

 

 

 

Extradition law researchers at the University of Essex include Professor Geoff Gilbert.

His most recent publication in the area is ‘Undesirable but Unreturnable – Extradition and other forms of Rendition‘, published in the Journal of International Criminal Justice in 2016. It concerns the fight against international crimes, considering how extradition and other forms of rendition might be utilized to rid a state of an undesirable alien, particularly one who is excluded from refugee status, whether that be to the International Criminal Court or, more likely, to another state with jurisdiction. The text is available here – for those who can log in to  the Essex Research Repository.

The issue of the rule of law within the EU is timely, given current disputes regarding Spain/Catalonia, Hungary and Poland. A new book by Theodore Konstandinides – a Senior Lecturer in the Law Department at the University of Essex – looks at the internal dimension of the concept of the rule of law within the EU.

The book argues that the preservation of the values underpinning the rule of law (such as legality, legal certainty, prohibition of arbitrariness, respect for fundamental rights) is essential to the success of EU integration. However, the idea of the EU rule of law often faces criticism: it is only window dressing for the EU to obtain new powers, and does little to constrain EU institutions or Member States in practice.

Does the EU rule of law deserve those criticisms? The book answers that question first of all by setting out an analytical guide to the EU rule of law. It also asks if the EU is based on the rule of law – taking account of the degree of compliance and the overall effectiveness of the EU enforcement acquis.