Professor Clara Sandoval, from the School of Law at the University of Essex (and Co-Director of the Essex Transitional Justice Network), is a part of the Human Rights Law Implementation project and contributed a post on The Power of Hearings: Unleashing Compliance with Judgments at the Inter-American Court of Human Rights.
In this, Professor Sandoval argues that while the dynamics of implementation are multi-factored and multi-actored, human rights bodies like the Inter-American Court of Human Rights do more than mere monitoring of orders; rather, they trigger and cajole implementation in different ways.
From Wikimedia Commons, the free media repository
The online page where all posts, and more on the project, can be accessed here. All posts are available in various languages (English, French and Spanish and, in some cases, also Russian). The following is a list of current posts – to read these please visit the project website here.
Introduction Christian De Vos and Rachel Murray
The Power of Hearings: Unleashing Compliance with Judgments at the Inter-American Court of Human Rights Clara Sandoval
Taking Rights Seriously: Canada’s Disappointing Human Rights Implementation Record Paola Limon
Reflections on the Role of Civil Society Organizations in Implementing Cases from the African Commission and Court Felix Agbor Nkongho
Addressing Cote d’Ivoire’s Statelessness Problem: Utilizing Multiple Tools to Support Implementation of Judgments Amon Dongo and Alpha Sesay
Litigating Torture in Central Asia: Lessons Learned from Kyrgyzstan and Kazakhstan Masha Lisitsyna and Anastassiya Miller
Some Justice out of Repression and Reprisals: On the Plight of Human Rights Defenders in Azerbaijan Philip Leach
The Power of Persistence: How NGOs can Ensure that Judgments Lead to Justice Alice Donald
How Can NGOs Push for Implementation—and What’s Stopping Them? A Conversation with NGO Leaders in the Americas, Africa and Europe A conversation with Viviana Krsticevic, Gaye Sowe, and George Stafford facilitated by Anne-Katrin Speck
A New Court for Human Rights Cases: The Court of Justice of the European Union Márta Pardavi and Kersty McCourt
More than the Sum of our Parts: Reflections on Collective Implementation of Economic, Social and Cultural Rights Decisions Susie Talbot
Earlier this year, Dr Meagan Wong and Dr Emily Jones from the School of Law at the University of Essex, co-founded and co-convened a new lecture series on public international law: The Essex Public International Law Lecture Series. This is a weekly series which builds upon two important intellectual traditions of Public International Law: legal formalism and international legal practice; and international theory including postcolonial and feminist perspectives.
Co-chaired by Dr Wong and Dr Jones, the series features judges of international courts and tribunals, leading academics, and practitioners of international law from governmental service, international organizations, and private practice from across the globe.
The inspiration behind the series stems from the scholarly profiles and research interests of both co-founders.
Dr Meagan Wong is a formalist generalist international lawyer who has advised States on a broad set of issues of international law including the law of treaties, jurisdiction, the law of international organizations, international courts and tribunals, and the relationship between international law and domestic law. She has also spoken to senior navy officials on matters concerning provisional arrangements pending maritime delimitation.
Dr Emily Jones is a generalist international lawyer who is a critical legal scholar that specializes in gender and conflict, science and technology and international environmental law, and is the author of two books: The Law of War and Peace: A Gender Analysis (Volume One) (Zed Publishing 2021)and Feminist Theory and International Law: Posthuman Perspectives (forthcoming with Routledge’s GlassHouse series)
The lecture series was inaugurated on 25 January 2021 on the occasion of the 75th anniversary of the first Security Council resolution by Professor Niels Blokker, who holds the Schermers Chair of International Institutional Law at the University of Leiden and is the former deputy legal advisor of the Ministry of Foreign Affairs of the Netherlands.
As the leading authority in international institutional law, Professor Blokker delivered the inaugural lecture, entitled ‘the UN Security Council at 75’. The inaugural lecture, which was in the format of a Zoom webinar, was attended by over 400 attendees, with an audience comprising judges of international courts and tribunals, members of the UN International Law Commission, legal advisors to governments and International Organizations, diplomats, private practitioners, academics, scholars, colleagues and students within and outside of Essex.
The strength of the series continued across the Spring Term, featuring:
Ms Lucía Solano, legal advisor of the Colombian Permanent Mission to the United Nations and former head of the Treaty Office – International Law Directorate at the Colombian Ministry of Foreign Affair: A fireside chat ‘Negotiating Maritime Delimitation Agreements’.
Professor Campbell McLachlan QC, Victoria University of Wellington, member of the Institut de droit international on: Systemic Integration, Revisited.
The Peace Palace, the Hague, seat of the International Court of Justice, and the Permanent Court of Arbitration | Photo by Vladyslav Lanovoy
With between 150-350 attendees per event, the far-reaching and varied audience enjoyed hearing about cutting edge research, scholarship and practice in these lectures.
Professor Malksoo’s lecture was based on the recent amendments to Russia’s constitution featured his 2021 publication with the American Journal of International Law, ‘International Law and the 2020 Amendments to the Russian Constitution’. His lecture was attended by legal advisors to the European Parliament, Council of Europe, constitutional law advisors and practitioners, government and cabinet advisors, academics and students.
Dr Ntina Tzouvala’s lecture featured her recently published monograph with Cambridge University Press entitled Civilisation as Capitalism and was the first legal theory lecture of the series. Her lecture was attended by academics of both international legal theory and formalism, legal advisors to governments, diplomats, practitioners, and students from various parts of the world, including Australia, Latin America and Asia.
H.E. Judge Kriangsak Kittichaisaree’s lecture was the first public discussion of his new bookThe International Tribunal for the Law of the Sea with Elements of International Law, Oxford University Press – of which the Editors of the Series from the Press House had attended. Other members of ITLOS had attended his lecture, along with diplomats, government advisors, practitioners, academics and students.
Lucía Solano’s fireside chat on the negotiation of maritime delimitation agreements featuring a very important practice of international law had been attended by judges from the International Tribunal for the Law of the Sea, members of the UN International Law Commission, legal advisors, government lawyers, navy officials, academics, and students.
Of note, was Judge Liesbeth Lijnzaad from ITLOS making a nod to women in international law of the sea during the Q&A session.
Professor Campbell McLachlan’s lecture featured his ongoing research for his forthcoming book entitled The Principle of Systemic Integration in International Law with Oxford University Press. His lecture was attended by judges of international courts and tribunals, members of the UN International Law Commission, legal advisors to government, diplomats, practitioners, academics, and students.
We will publish in due course a follow-up piece about the Summer Term lectures.
On 18 March 2021, the Advertising Standards Authority (ASA), the UK’s regulator of advertising across all media, published its research on whether influencer ads are appropriately disclosed on social media. The regulator’s report revealed a “disappointing overall rate of compliance” with its rules requiring ads on social media to be clearly signposted as such.
The UK Code of Non-broadcast Advertising and Direct and Promotional Marketing (CAP Code), which applies to ads in all non-broadcast media, including digital platforms, requires that marketing communications must be “obviously identifiable” as such (Rule 2.1). There are equivalent rules in the Code for broadcast media. Marketers must leave consumers in no doubt over when they read, “like” or otherwise engage with advertising content. This is underpinned by the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). If influencers fail to make it sufficiently clear that they are being paid to promote a product or service, they are in breach of the CAP Code. The brands with which non-compliant influencers are working are held equally responsible for failing to adequately disclose advertising content.
The prominent use of #ad is recommended by the ASA as the clearest way of communicating the nature of advertising content. Alternatively, transparency can also be promoted by using a platform’s own branded content tools, e.g., Instagram’s Paid Partnership tool which can help communicate the existence of a commercial relationship between a creator and a business.
In 2020, the number of complaints received by the regulator about influencers increased by 55% from the previous year. This is despite the advisory information that has been made available by the ASA on “making clear that ads are ads” and a series of rulings on inadequately labelled influencer advertising. As the regulator’s 2021 Influencer Monitoring Report notes, the ASA continues to see “far too many incidences of non-disclosure”.
Although the Authority’s rules on appropriate ad disclosure apply to all types of media where influencers choose to advertise, the ASA’s assessment focused on Instagram content because the majority of complaints tended to be raised in relation to this platform and its features. For the purposes of its monitoring exercise, approximately 24 000 individual Instagram “Stories” across 122 UK-based influencers were assessed over a three-week period in September 2020. The regulator identified nearly one in four of these Stories as marketing (as opposed to editorial content). Compliance rates were “far below” what was anticipated. The ASA considered that 65% of these ads were insufficiently labelled as advertising. Ads in the beauty, food and fitness, clothing and leisure sectors were found to have particularly low rates of compliance.
More specifically, the following shortcomings emerged:
first, inconsistent disclosure of ad content spanning a number of consecutive Stories;
second, instances where posts, IGTV or Reels content were accurately disclosed as an ad but their corresponding Story was not;
third, poor visibility of labelling (e.g., small fonts) which made it difficult to spot an ad; fourth, lack of clarity in disclosing affiliate content (i.e. a marketing model whereby an affiliate generates traffic to a brand’s website in exchange for a commission, usually a percentage of sales) which still counts as advertising; and
finally, instances where influencers relied on bios or previous posts to communicate to consumers their connection to a product.
The ASA put on notice all the influencers monitored (including the brands that featured in undisclosed ads) and requested assurances of future compliance. Enforcement action is likely to be taken if follow-up monitoring spot checks indicate further instances of non-compliance. This might include promoting their non-compliance not only through the regulator’s website but also through its own targeted paid search ads.
This piece was first published on the IRIS Merlin legal database and is reproduced here with premission and thanks.
Vigil for Sarah Everard in Sheffield | Photo by: Tim Dennell onFlickr
When Sarah Everard was reported missing on March 4, the police launched an investigation and arrested a suspect, Wayne Couzens, a 48-year-old Metropolitan police officer. Then when human remains, later identified as Everard’s body, were found in Ashford, Kent, the suspect was charged with kidnap and murder.
This led to a social media frenzy, as explicit details of Wayne Couzens’ background were brought to the surface. Many posts, tweets, and comments accused Couzens of his connection to serial killing, rape cases, and public indecency. These allegations spiralled the public feed of Facebook, Twitter, and Reddit, reaching millions of eyeballs collectively. This had potential to threaten the course of justice.
The Attorney General, Rt Hon Michael Ellis QC MP, released a statement after the online disorder. He reminded anyone writing about the case to not publish material that asserts or assumes the guilt of anyone who has been arrested. The statement reads:
“[…] it can amount to contempt of court to publish information relating to untested and unconnected allegations against the suspect and matters adverse to his character, the admissibility of which a Judge in due course may need to determine.”
Under Article 6 of the European Convention on Human Rights, the right to a fair and public trial or hearing, a defendant has the right to be presumed innocent until proven guilty. If a potential juror reads adverse stories of a defendant, then they cannot be guaranteed a fair trial.
In his statement, the Attorney General referred to ‘contempt of court’. This is the consequence of publishing material which creates a substantial risk of serious prejudice to the outcome of a case. If a juror has a polluted knowledge of the case, because of external publications, they cannot be an impartial member of the jury.
The law of contempt applies as soon as a case becomes active. Under Schedule 1 of the Contempt of Court Act 1981, a criminal proceeding becomes active when: a suspect is arrested with or without a warrant; a summons or indictment is issued; or a suspect is orally charged. In this case, the suspect was arrested, then charged.
If a contempt case is brought by the court, a judge will assess: the likelihood of the publication coming to the attention of a potential juror; the impact of the publication on the ordinary reader; and the outstanding impact on a juror at the time of the trial.
The implications of being found in contempt of court can be catastrophic, causing a trial to be held outside the area where the crime was committed, with all the extra costs that involves, or, worse, halting a trial. There is no limit on the financial penalty either and, in serious cases, there may be a sentence of up to two years imprisonment.
The Contempt of Court Act 1981 also applies to posts that are published on social media. Even though fewer cases of contempt arise from social media, it does not decrease the severity of the prejudice and, in some cases, can be a catalyst in perpetuating it. All it takes is one tweet.
In R v Akhtar (2019), the founder of the English Defence League, Tommy Robinson, was found in contempt of court after his reckless misconduct. The anti-Islam activist confronted defendants aggressively as they walked into court, describing the accused group as ‘Muslim child-rapists’.
He also broadcast a Facebook live stream outside of court, which was viewed by 10,000 people in real time and 1.2 million people afterwards. This case involved a series of sexual offences, which led Judge Geoffrey Marson to impose a reporting restriction, postponing reports of proceedings until the end of the last trial. By breaching this, and recording in the precincts of court, Robinson was sentenced to 10-months in prison.
Despite the editorial restrictions that come with all criminal cases, they can still be reported. There is a huge public interest in the criminal justice system and section 5 of the Contempt of Court Act is the exception of public affairs. Information that is published in good faith, and is a matter of public interest, cannot be treated as contempt of court.
A similar case occurred ten years ago in AG v Mirror Group Newspapers (2011). The Daily Mirror and The Sun faced being in contempt of court over the reporting of Joanna Yeates, whose body was found on Christmas Day 2010. The coverage focussed on the arrest of Chris Jefferies, who was the victim’s landlord, and presented him as a suspicious character who behaved mysteriously. In some publications, he was even exposed for being previously affiliated with someone, later found he only vaguely knew, that had been charged with child abuse.
Some of the headlines read ‘Jo Suspect is Peeping Tom’ and ‘Jo Suspect “Scared Kids”.’ As the investigation progressed, the police released Jefferies without charge and someone else was later convicted of the murder.
Even though there was no trial and, therefore, no jury to influence, the court argued that the stories had potential to seriously impede or prejudice the case. The material in the papers were openly biased and might have prevented witnesses who could have helped in Jefferies’ defence from coming forward. The Daily Mirror and The Sun were fined £50,000 and £18,000 respectively.
The UK mourned Sarah Everard’s death, with vibrant flowers swallowing the space around a bandstand in Clapham Common. Many have taken to the internet to demand change and prioritise women’s safety once the lockdown eases. Anger, fury, disappointment, and disbelief are emotions that flow from the cruel circumstances of Sarah Everard’s death. In expressing this, care should be taken to avoid inadvertently delaying the course of justice, by being found in contempt of court. Ultimately, Wayne Couzens is innocent until proven guilty, and not guilty until proven innocent.
Thank you to Tom Sancassani for sharing this piece with the Essex Law Research Blog. Tom is a training journalist at the Department of Literature, Film, and Theatre Studies with a special interest in Media Law and Court Reporting.
In the run-up to May’s elections, new research has found stark differences in the calibre of Police and Crime Commissioners, with some “ill equipped”, leaving police accountability “hinging on luck”.
New research, based on exclusive interviews with high-ranking figures from across UK policing, suggests a postcode lottery in police accountability. The calibre of individual Police and Crime Commissioners (PCCs) is seen as the key factor in ensuring adequate oversight, with stark differences exposed between forces.
Dr Simon Cooper, from our School of Law, gained unprecedented access to key figures from all sides, on condition of their anonymity. He interviewed PCCs, Chief Constables and members of Police and Crime Panels [PCPs] in five police forces, as well as one of the persons directly involved with introducing the current system and one of the most senior figures in policing at a national level.
While Dr Cooper’s findings, published in Policing: A Journal of Policy and Practice, support the argument that the current system can work, he identifies a “significant anomaly”, with accountability dependent on the relative strengths of PCCs and Chief Constables and the relationship between the two. Success, in this respect, can be seen to “hinge on luck”.
Dr Cooper said: “These findings suggest a significant variation in how police accountability is administered around the country. While one Chief Constable described being regularly ‘grilled’ by their PCC, some Commissioners are seen as ill-equipped, ill-prepared and potentially ego-driven. The importance placed by the system on these single individuals suggests there is a real possibility that some Chief Constables are being held to account more effectively than others.”
One Chief Constable, identified as Chief Constable D, outlined the issues that exist when dealing with their elected PCC, contrasting it with the previous ‘tripartite’ structure, where Chief Constables would report to the Home Secretary and their local Police Authority: “…there is a significant risk that the relationship (between PCC and CC) either becomes excessively hostile, excessively friendly or… there isn’t the balance, additional questioning or informing of the debate that a wider group would give. (…) Because of poor safeguards and governance arrangements it too quickly descends into personalities and subjectivity in which accountability becomes likeability, becomes re-electability. Accountability becomes all of those things it shouldn’t.”
Another Chief Constable, Chief Constable C, underlined the importance of the PCC-CC relationship, noting the impact of individual experience and characters: “I have seen evidence of PCCs who are ill equipped and ill prepared and actually don’t have the skills to understand big organisations making sweeping statements and making assumptions about individuals without any basis what so ever. I have also seen Chief Constables that do not want to adapt to a new way of working and will be very obstructive towards PCCs.”
Summarising the impact on oversight, Police and Crime Commissioner D asked: “The question is can a PCC be played by a Chief Constable? They clearly could be and some I suspect are. I am quite sure that there are some Chief Constables who just play lip service to their PCC.”
The current system was seen by some as placing an impractical burden on one individual. The lack of a ‘pool of different views’ limits opportunities for the PCC to moderate their thoughts and has the potential to leave the PCC either exposed or guided by advice from others, with no formal oversight role. PCC A commented: “Presumably if it’s something they (the PCC) didn’t know a lot about they talk to a lot of people about it but you don’t see any of those conversations played out.”
In reality, one senior figure, Person Z, was left questioning the original design of the PCC system: “For one person, even though they are elected, to replace the wisdom and contribution of 19 [Police Authority members] is a tall ask. There’s only one person [the PCC] providing scrutiny [of Chief Constables] and that’s a heavy responsibility, so in terms of scrutiny of course it’s a lot less. Palpably has it worked? No… I suspect PCCs might, in hindsight, be regarded as a blunder.”
Dr Cooper says his findings suggest a need for the Home Secretary to review the Policing Protocol and for an Accountability Code of Practice to be issued.
Dr Cooper said: “This research encourages the Home Secretary to exercise their power and urgently review The Policing Protocol Order. In its current form, the PPO is overly broad, presumption-based, loosely-worded and generic, with a resulting impact on accountability.”
Dr Cooper’s research is published at a time of continuing debate on police accountability. The Police Foundation recently launched a Strategic Review, Her Majesty’s Inspector of Constabulary and Fire & Rescue Services recommended “profound and far reaching police reform” and there have been calls for a Royal Commission.
Dr Cooper’s research also found that in some instances the PCC model is viewed favourably when contrasted with its forerunner, with the previous bureaucracy and resulting backlog replaced by a “single point of decision-making” and a greater “visibility” of the decision-making process at a local level.
Other interviewees, however, suggested such appearances could be deceptive. PCC E commented: “We have gained in terms of visibility but lost in terms of detailed scrutiny that the Police Authority was capable of.”
The full text of the article is published is available in open access here.
This piece was originally uploaded as part of a University of Essex news story here.
The book examines the different ways non-state rules are applied in international commercial contracts with the aim to understand the legal authority of non-state rules. To do so, the book analyses:
The rule of non-state rules in international commercia law;
The role of non-state rules in international commercial contracts;
The application and interpretation of non-state rules.
Non-state rules can be defined as those rules which come from a source other than the state. This includes uncodified rules (trade usages and general principles of law) and codified rules (restatements of law, model laws, model contract clauses and guidelines). They are, in principle, not binding and they either need to be contracted into or can be contracted out of. The concept of non-state rules is wider than the lex mercatoria which consists of trade usages and practices by merchants and general principles of law, but would not include rules codified by international organisations and trade associations.
The contracting parties in an international contract might be faced with uncertainty and unpredictability as to the applicable law and its content. For at least one of the parties’ choice of law often means the application of a foreign law with sometimes unforeseen consequences. To escape the unpredictability of a foreign law, to create a level playing field between the contracting partners if they cannot agree on the applicable law, or because they prefer a neutral law, the parties might choose non-state rules as the governing law of the contract. Whilst such a choice is usually permitted in arbitration, it is only rarely permitted in litigation. Private international law in most jurisdictions allows the parties to include non-state rules as contractual terms or by reference, but limits choice of governing law to state laws.
Examining the role of non-state rules, beyond being the governing law of the contract, shows that they are frequently used by courts and arbitral tribunals to interpret either the contract or the applicable law. Interestingly, this is frequently done even when the parties have not included a reference to non-state rules in the contract. This can be done to either fill gaps in the contract, to show the compatibility of the applicable law with transnational commercial practice, or to interpret the contract in light of the principles of transnational commercial law. Courts and arbitral tribunals are thus taking a leading role in shaping how non-state rules are used.
This book examines these different ways in which non-state rules are applied in order to understand how this affects their legal authority. By studying the application of non-state rules, it can be understood what role they play in domestic law, what support they have from the international business community, and the position they have in courts and arbitral tribunals.
Published on 16 Mar. 2021 by Routledge
This book demonstrates how non-state rules have legal authority as the applicable law to the contract, as sources of (domestic) law, as legal doctrine/scholarship, and as terms of the contract. They can be considered as law, rules of law, contractual rules, and/or normative practices depending on the situation.
Dr. Hoekstra’s book thus gives a practical overview of different types of non-state rules and their role in international commercial law, and contributes to the theoretical discussion by analysing several key issues related to the legal authority of non-state rules.
Carla Ferstman and Noora Arajärvi, University of Essex, published a report which assesses the UK Overseas Operations (Service Personnel and Veterans) Bill, which makes provision about legal proceedings and consideration of derogation from the European Convention on Human Rights in connection with operations of the armed forces outside the British Islands.
The Bill was introduced in Parliament on 4 November 2020 by Mr Ben Wallace, Secretary of State for Defence of the United Kingdom, and sets out a series of measures intended to make it more difficult to prosecute current and former Service personnel for conduct occurring more than five years ago when operating overseas.
The Bill also restricts judicial discretion to allow civil claims for personal injury and/or death and claims under the Human Rights Act 1998 in respect of overseas operations by requiring the court to consider additional factors (on top of those that already exist in law) when deciding whether to allow a claim outside the set limitation periods.
The proposed legislation has provoked considerable debate in both Houses of Parliament, amongst former service personnel, lawyers, academics and civil society. Much of the discussion surrounding the Bill has also focused on the extent to which the proposed changes to how decisions about potential prosecutions are taken will negatively impact upon the capacity for the UK to implement its obligations under international human rights law and the International Criminal Court statute.
The focus of this report
The report focuses on civil claims for personal injury and/or death and claims under the Human Rights Act 1998 in respect of overseas operations.
The Overseas Operations (Service Personnel and Veterans) Bill sets out several rationales for the introduction of the reforms to civil and human rights claims, and the authors of the report saw value in scrutinising these justifications in some depth, given the significance of the proposed reforms and the limited attention they have received to date.
As the report explains, the civil claim longstop would have the effect of shielding the Ministry of Defence from public scrutiny and legal accountability and would take away crucial means by which to ensure transparency and to promote institutional lessons learned.
To make this assessment, Carla Ferstman and Noora Arajärvi carried out a review of civil and human rights judgments pertaining to overseas operations, issued within the last twenty years. These have mainly concerned claims against the Ministry of Defence, though their sample has also included claims involving overseas engagements by the security services and other parts of government to the extent relevant.
The report argues:
Considering the checks and balances within the UK legal system and how it operates as a whole, impeding access to civil and human rights claims ignores the vital role such claims play in ensuring that criminal investigations and prosecutions and related accountability processes are not shut down prematurely. A crucial means of oversight will be lost.
Victims’ access to reparation is an important value worthy of protection and a fundamental and obligatory aspect of UK human rights obligations. This is especially the case for claims involving wrongful death, torture, and ill-treatment; and
The introduction of limitation periods for civil and human rights claims without a possibility for judges to be able to use their discretion to extend them where the exigencies of the circumstances so require, is a significant and unjustifiable limitation of claimants’ access to reparation.
On 7 December 2020, Ofcom, the UK’s communications regulator, found that The Family Programme, a live radio broadcast, featured potentially harmful statements about the COVID-19 pandemic without adequate protection for listeners.
The regulator currently prioritises cases linked to the coronavirus where programmes may have helped spread misinformation or included misleading material about the illness and public policy in relation to it. The Family Programme is broadcast every Sunday on New Style Radio 98.7 FM, which is a community radio station providing a service for Afro-Caribbean communities in Birmingham. The licensee for this service is the Afro-Caribbean Millennium Centre (ACMC).
During the programme, a number of “highly contentious, unevidenced conspiracy theories about the coronavirus” were set out. In its ruling, Ofcom highlighted controversial allegations that wearing face masks can “cause serious neurological and respiratory damage”, as well as suggestions that Bill Gates intended to reduce the world population, and mark and control 7 billion humans through vaccination. At the time of the broadcast, human and clinical trials were ongoing around the world to develop and deploy an effective vaccine, which is recognised by the scientific and medical community (and endorsed by the World Health Organisation) as the key to controlling and potentially defeating the COVID-19 pandemic. Ofcom was particularly concerned that such unsubstantiated claims would cause harm to listeners by undermining confidence in any future roll-out of a vaccination programme.
The presenter, Simon Solomon, referred to the crisis as an orchestrated “plan-demic” linked to the roll-out of 5G, and repeated without challenge throughout the programme the suggestion that “government and WHO policies are deliberately aimed at killing people.” Much of the discussion centred around a document written and a video presented by conspiracy theorist Claire Edwards, both of which have been discredited by fact-checking initiatives or trustworthy media organisations. Ofcom expressed serious concerns that such allegations could lead listeners to disregard public authorities’ advice and the social distancing measures intended to protect public health (especially at a time when coronavirus cases were rising and the government had just announced a second national lockdown in England).
The regulator rejected the presenter’s arguments that he had not endorsed Claire Edwards’ claims. In its view, the presenter had increased the potential for harm by lending the contents of those claims further credibility and adding greater weight: “listeners would have been left in no doubt that the presenter supported the contents of Ms. Edwards’ documents.” ACMC accepted the regulator’s findings and mentioned in its response that, as Mr. Solomon was a “very experienced” presenter, they “could not have possibly envisaged” that he would present a programme containing potentially harmful material. The licensee also stated that The Family Programme broadcast at issue could be seen as an “aberration” and believed that it constituted an “exception” to their normal high standards of professionalism.
In considering whether ACMC had provided listeners with “adequate protection” from this potentially harmful material (as Rule 2.1 of the Ofcom Broadcasting Code requires), Ofcom ruled that the disclaimer given by the presenter at the beginning of the programme had the potential to compound the potential harm to members of the public: “Rather than provide a warning about the unsubstantiated and controversial nature of the conspiracy theories put forward in the programme, in our view [the disclaimer] denigrated listeners who did not subscribe to them and cast doubt on the veracity of mainstream and credible sources of information about the coronavirus pandemic.” Moreover, according to Ofcom, Mr. Solomon had presented highly contentious claims as unequivocal facts and uncritically guided listeners to use the programme as the basis for their research.
Ofcom considered the steps ACMC had taken to mitigate the potential for harm following the broadcast of the programme; these were the suspension of the programme and its presenter, as well as the broadcast of “a special programme” about the coronavirus, which was aired on 15 November 2020 at the same time as the original programme and which “comprehensively refuted all the conspiracy theories” included in the initial broadcast.
The regulator emphasised that broadcasting views which question official authorities on public health information is not in principle prohibited and acknowledged the presenter’s right to discuss contentious viewpoints. However, in doing so, broadcasters must ensure compliance with the Code. Despite the actions taken by the licensee, the regulator was of the opinion that there were not sufficient measures in place to ensure that listeners were protected from the inclusion of “potentially extremely harmful material” in this programme, which was broadcast for two hours “without sufficient warnings, context or challenge during a public health crisis.”
As a result, Ofcom found that New Style Radio had committed a serious breach of the Broadcasting Code and directed the station to broadcast a summary of its ruling. The regulator has yet to give a final verdict regarding a suitable sanction, which could determine whether Solomon shall continue on the station as a presenter.
This article originally appeared on the IRIS Merlin legal database and is reproduced here with permission and thanks.
On the afternoon of 25 March 2021, we hosted an online workshop by Zoom exploring the voice of the child in the context of the treatment of sexual abuse allegations in private family law disputes in England and Wales. The workshop brought together a fascinating mix of over 50 attendees including members of the judiciary, practitioners, academics, policy makers, organisations supporting survivors, and people with lived experience of abuse and the family courts.
The assessment of harm to children in private law cases has recently been the focus of an expert report commissioned by the Ministry of Justice, which provided the impetus for this project. Following the review, the treatment of sexual abuse allegations has been identified as an under-researched but major threat to the safety of children.
A key aim of the workshop was to respond to the need arising from the review to build an evidence base with key stakeholders in the field, something we hope to take forward following the event. This complex and difficult area of legal practice needs to be dealt with sensitively and we were delighted with the mix of attendees who respectfully and passionately engaged with the serious issues raised by the family courts’ current approach to the challenges that exist in these cases. We hope that following the event we will have the opportunity to continue our work with stakeholders to enhance the voice of the child in private family law cases.
The workshop followed a panel presentation and discussion format, held under the Chatham House rule to ensure confidentiality for attendees, given the sensitive nature of these issues. There were 10 presentations in total, including from survivors of child abuse and the family courts, a member of the judiciary, academics and practitioners in the field. Following each panel, attendees had the opportunity to ask questions and provide comments on issues raised.
Panels covered themes including:
amplifying the voice of the child;
the role of ‘parental alienation’;
support and training for professionals;
supporting children through court;
legal aid and associated access to justice issues;
the role of the family court in responding to abuse allegations and the challenges and possibilities in doing so.
A rich variety of issues were considered, including specific legal changes as well as wider cultural factors that arguably influence this area of practice.
We are grateful to all who attended and spoke at the event for making it such a supportive and insightful discussion, as well as for the generous funding provided by the ESRC Impact Acceleration Account. Working collaboratively, we held an event that was constructive and reform-oriented with the aim of furthering the conversation in this important but challenging area.
We were delighted to receive positive feedback from attendees, including from a survivor who said, ‘I really feel empowered’ following the workshop. Another said, ‘We all thought it was a fantastic event. It was brilliantly brought together and managed with such diversity of thought and experience … this really brought home the extent and complexity of some of the issues that need addressing in the family justice system’.
A full report of the event will be available soon, which will identify core themes, recommendations and next steps that we intend to pursue. If you would like to find out more about any aspect of this project or would like to be sent a copy of the report once it is available, please contact one of the organisers at the details listed below:
What do energy and climate justice mean and why do they matter for Africa? According to Climate just, a simple way to understand climate justice is to ensure that collectively and individually we can prepare for, respond to and recover from climate change impacts. This conception includes understanding the policies to mitigate or adapt to them by considering existing vulnerabilities, resources, and capabilities. Energy justice, on the other hand, means ensuring affordable, reliable, and clean energy access mainly for economic development. Putting these two concepts together translates into the realization of the United NationsSustainable Development Goals 7 and 13. From a theoretical perspective, these Goals appear laudable but face very complex practical difficulties, especially for countries in the Global South. The truth is that from the perspective of countries in the Global South, there remains a contradiction in the quest to realize these two SDGs simultaneously through energy and climate justice.
Realizing the United Nations SDGs 7 and 13 in Africa
For African countries with significant energy access and security challenges, it is not clear how they are expected to pursue the realization of SDG 7 (energy justice) without compromising international obligations towards the realization of SDG 13 (climate justice). This blog post considers this conflict faced by African countries in the Global South and highlights the need to increase energy access through the development of fossil fuel-based energy sources that meet international obligations on climate change. The conclusions drawn are based on proposed strategies that could be utilized by African States in the Global South towards achieving energy and climate justice simultaneously.
Climate change has been described as the biggest threat to public health in this century. Some jurisdictions are more exposed to the direct impacts of climate change due to their locations. Within these jurisdictions, some people will be more vulnerable to the impacts, as they will be more sensitive to negative effects on their health or wellbeing or may have less capacity to respond. However, vulnerability is not inherent in particular groups – it is determined by a mix of social, economic, environmental, and cultural factors, as well as institutional practices. It is in light of the challenges posed by climate change that calls such as the ones from the Paris Agreement – COP15 have been made to limit global warming which is caused mainly by the release of greenhouse gas (GHGs) emissions into the atmosphere.
Notwithstanding the above, there remains a challenge for African countries in the Global South – one that places countries in this region in a difficult position in their quest to address energy access and security problems in accordance with the energy goal of SDG 7 on the one hand, whilst having to meet their international obligations on climate change mitigation in accordance with the climate goal of SDG 13 on the other. This observation implies that individual countries have a responsibility to ensure that the pursuit of energy justice through the development of energy access is compatible with the pursuit of climate justice. The challenge here is that energy access problems vary between countries, in the sense that countries in the Global North that are arguably the biggest emitters of GHGs into the atmosphere do not experience the same level of energy access problems as those in the Global South. More specifically, countries in the Global South, particularly those dependent on fossil fuels for economic development, have a bigger challenge of harnessing the resources in a way that is not incompatible with their climate justice obligations irrespective of their huge energy access and security problems.
The question, therefore, is what are the viable means through which the two concepts of energy and climate justice could be achieved simultaneously by African countries in the Global South? For countries that depend on fossil fuels for economic development in particular, recent events happening in the global oil industry, such as the intended ban on the financing of fossil fuel projects by international financial institutions as a way to combat climate change, may have a significant impact on the economies of African countries. This is because Africa (especially the sub-Saharan region) has one of the poorest energy access rates in the world, together with climate change impacts that are becoming prevalent. For this reason, this blog post suggests strategic tools that could be utilized by developing countries in the Global South to achieve SDGs 7 and 13.
Energy efficiency measures
In simple terms, energy efficiency means using less energy to perform an action – like switching on a light or heating a house. Interestingly, these actions have an impact on other energy end-users, as well as the environment. Energy efficiency remains an important strategy that could be utilized by African states to achieve energy and climate justice simultaneously. It is a potent tool that could be utilized to address inequalities at both ends by making energy bills more affordable, while also reducing the need for more energy production and consequently reducing associated pollution into the atmosphere. African states in the Global South can leverage the tangible benefits of energy efficiency measures toward achieving the energy and climate goals of the UN SDGs. An effective way to do this is to integrate energy efficiency measures into the sociological frames of energy and climate justice goals.
Diversification of energy options
At the heart of the energy access problems in Africa is also the failure of national governments to recognize the importance of diversification of energy options. The concept of diversification of energy options simply means among other things, dissolution of energy governance structure, multiplication of the means of energy production, increasing availability of affordable energy options. This concept could potentially address the contradiction between the realization of the energy goal with increased energy access irrespective of the nature of the energy sources as well as the realization of the climate goal.
Renewable energy development
Closely related to the diversification of energy options is investing in renewable energy by African states in the global south. Admittedly, there is clear evidence that the continent has abundant renewable energy sources ranging from solar to hydropower, biomass, and wind, among others. Renewable energy sources are now widely recognized as not only pivotal to addressing energy access and security challenges in developing countries but also seen as a viable means to address climate change. The truth remains that public and private investment in renewable energy and other low-carbon energy technologies in Africa, especially in the sub-Saharan region with massive renewable energy potentials is a viable way to achieve the energy and climate goals.
Regional cooperation in energy development and management
The role of regional cooperation by African countries in the area of energy development to address the challenges of energy access cannot be overemphasized. Particularly, the Economic Community of West African States (ECOWAS) and Southern African Development Community (SADC) play a significant role within each region in addressing energy access and security challenges. Already, there are notable gestures by African states in this regard, with the development of the West African Power Pool (WAPP) in the western region and the Southern African Power Pool (SAPP) in the southern region. In order to achieve energy and climate justice simultaneously, African states need to increase regional cooperation in the development of clean energy by way of rising to the challenge of energy access through a collective engagement with the trend of green growth.
This piece was first published on the African Legal Studies Blog of the University of Bayreuth and is reproduced here with permission and thanks.
Essex Law Research Blog 