Tag Archives: fundamental rights

New Special Issue of Communications Law: Information control in an ominous global environment

Communications Law JournalThe Information Law and Policy Centre is pleased to announce the publication of a special issue of the Communications Law journal based on papers submitted for our annual workshop last November. The journal articles are available via direct subscription, through the Lexis Library (IALS member link) and (coming soon) Westlaw.

In the following editorial for the special issue, Dr Judith Townend, Lecturer in Media and Information Law, University of Sussex, (the outgoing Director of the ILPC, Institute of Advanced Legal Studies) and Dr Paul Wragg, Associate Professor of Law, University of Leeds discuss the challenges of information control in an ominous global environment.

This special issue of Communications Law celebrates the first anniversary of the Information Law and Policy Centre (ILPC) at the Institute of Advanced Legal Studies. It features three contributions from leading commentators who participated in the ILPC’s annual conference ‘Restricted and redacted: where now for human rights and digital information control?‘, which was held on 9 November 2016 and sponsored by Bloomsbury Professional.

The workshop considered the myriad ways in which data protection laws touch upon fundamental rights, from internet intermediary liability, investigatory and surveillance powers, media regulation, whistle-blower protection, to ‘anti-extremism’ policy. We were delighted with the response to our call for papers. The conference benefited from a number of provocative and insightful papers, from academics including Professor Gavin Phillipson, Professor Ellen P Goodman, Professor Perry Keller and Professor David Rolph as well as Rosemary Jay, Mélanie Dulong de Rosnay, Federica Giovanella and Allison Holmes, whose papers are published in this edition.

The date of the conference, by happenstance, gave extra piquancy to the significance of our theme. News of Donald J Trump’s election triumph spoke to (and continues to speak to) an ominous and radically changed global environment in which fundamental rights protection takes centre stage. But as Trump’s presidency already shows, those rights have become impoverished in the rush to promote nationalism in all its ugly forms.

In the UK, the popularism that threatens to rise above all other domestic values marks a similar threat, in which executive decision-making is not only championed but also provokes popular dissent when threatened by judicial oversight. The Daily Mail’s claim that High Court justices were ‘enemies of the people’ when they sought to restrict the exercise of unvarnished executive power reminds us that fundamental rights are seriously undervalued.

Perhaps we should not be surprised at these events and their potential impact on communication law. In February 2015, at the ILPC’s inaugural conference Dr Daithí Mac Síthigh delivered a powerful paper in which he noted the rise of this phenomena in the government’s thinking on information law and policy under the Coalition Government 2010-15. In his view, following an ‘initial urgency’ of libertarianism, the mood changed to one of internet regulation or re-regulation. Such a response to perceived disorder, though not unusual, was ‘remarkable’ given how the measures in this field adopted during these final stages of the last government had been ‘characterised by the extension of State power in a whole range of areas.’ We should also note the demise of liberalism in popular thought. That much criticised notion which underpins all fundamental rights seems universally disclaimed as something weak and sinister. All of this speaks to a worrisome future in which the fate of the Human Rights Act remains undecided.

Concerns like these animate the papers in this special issue. The contribution from leading data protection practitioner Rosemary Jay, Senior Consultant Attorney at Hunton & Williams and author of Sweet & Maxwell’s Data Protection Law & Practice, is entitled ‘Heads and shoulders, knees and toes (and eyes and ears and mouth and nose…)’. Her paper discusses the rise of biometric data and restrictions on its use generated by the General Data Protection Regulation. As she notes, sensitive personal data arising from biometric data might be more easily shared, leading to loss of individual autonomy. It is not hard to imagine the impact unrestricted data access would have – the prospective employer who offers the job to someone else because of concerns about an applicant’s cholesterol levels; the partner who leaves after discovering a family history of mental ill heath; the bank that refuses a mortgage because of drinking habits. As Jay concludes, consent will play a major role in regulating this area.

In their paper, Federica Giovanella and Mélanie Dulong de Rosnay discuss community networks, a grassroots alternative to commercial internet service providers. They discuss the liability issues arising from open wireless local access networks after the landmark Court of Justice of the EU decision in McFadden v Sony Music Entertainment Germany GmbH. As they conclude, the decision could prompt greater regulation of, and political involvement in, the distribution of materials through these networks which may well represent another threat to fundamental rights.

Finally, Allison M Holmes reflects on the impact of fundamental rights caused by the status imposed on communication service providers. As Holmes argues, privacy and other human rights are threatened because CSPs are not treated as public actors when retaining communications data. As she says, this status ought to change and she argues convincingly on how that may be achieved.

Reflections on ‘Freedom of Information’ at 250

Freedom of Information Act Sweden and Finland 1766

In December 2016, the Information Law and Policy Centre co-organised an event celebrating the 250th anniversary of the world’s first law providing a right to information. It was hosted by free expression NGO, Article 19 at the Free Word Centre and supported by the Embassies of Sweden and Finland. A full programme of the event and the audio files are available on the Campaign for Freedom of Information website. In this post, Judith Townend and Daniel Bennett reflect on a few of the key themes discussed at the event. 

Accessing information may no longer feel like a pressing problem. We live in an age of global telecommunications, the internet and the smartphone with access to ubiquitous 24/7 media coverage on demand. Our data is collected, tracked, mapped and analysed by social media networks, search engines, commercial enterprises, governments and public authorities around the world. And yet, 250 years after the first law providing for a right to information was passed, the right for us – the public – to access information relating to the administration of state power remains a struggle.

Our ‘Freedom of Information at 250’ event sought to put this struggle into its historical context. The event celebrated and commemorated the signing into law of ‘His Majesty’s Gracious Ordinance Relating to Freedom of Writing and of the Press’ on 2nd December 1766.¹ Enacted by the Riksdag (parliament) of Sweden – which then also included Finland – this was the world’s first law to promise public access to governmental information. Continue reading

How the UK passed the most invasive surveillance law in democratic history

IPBill image

In this guest post, Paul Bernal, Lecturer in Information Technology, Intellectual Property and Media Law at the University of East Anglia, reflects on the passage of the Investigatory Powers Bill. The legislation was recently passed in Parliament and given Royal Assent on 29 November 2016.

You might not have noticed thanks to world events, but the UK parliament recently approved the government’s so-called Snooper’s Charter and it has now become law. This nickname for the Investigatory Powers Bill is well earned. It represents a new level and nature of surveillance that goes beyond anything previously set out in law in a democratic society. It is not a modernisation of existing law, but something qualitatively different, something that intrudes upon every UK citizen’s life in a way that would even a decade ago have been inconceivable. Continue reading

Full Programme: Annual Workshop and Evening Lecture

Restricted and Redacted: Where now for human rights and digital information control?

The full programme for the Information Law and Policy Centre’s annual workshop and lecture on Wednesday 9th November 2016 is now available (see below).

For both events, attendance will be free of charge thanks to the support of the IALS and our sponsor, Bloomsbury’s Communications Law journal.

To register for the afternoon workshop please visit this Eventbrite page.
To register for the evening lecture please visit this Eventbrite Page.

Please note that for administrative purposes you will need to book separate tickets for the afternoon and evening events if you would like to come to both events.

PROGRAMME

10.45am: REGISTRATION AND COFFEE 

11.15am: Welcome

  • Judith Townend, University of Sussex
  • Paul Wragg, University of Leeds
  • Julian Harris, Institute of Advanced Legal Studies, University of London

11.30am-1pm: PANEL 1 – choice between A and B

Panel A: Social media, online privacy and shaming

Chair: Asma Vranaki, Queen Mary University of London

  1. David Mangan, City, University of London, Dissecting Social Media: Audience and Authorship
  2. Marion Oswald, Helen James, Emma Nottingham, University of Winchester, The not-so-secret life of five year olds: Legal and ethical issues relating to disclosure of information and the depiction of children on broadcast and social media
  3. Maria Run Bjarnadottir, Ministry of the Interior in Iceland, University of Sussex, Does the internet limit human rights protection? The case of revenge porn
  4. Tara Beattie, University of Durham, Censoring online sexuality – A non-heteronormative, feminist perspective

Panel B: Access to Information and protecting the public interest

Chair: Judith Townend, University of Sussex

  1. Ellen P. Goodman, Rutgers University, Obstacles to Using Freedom of Information Laws to Unpack Public/Private Deployments of Algorithmic Reasoning in the Public Sphere
  2. Felipe Romero-Moreno, University of Hertfordshire, ‘Notice and staydown’, the use of content identification and filtering technology posing a fundamental threat to human rights
  3. Vigjilenca Abazi, Maastricht University, Mapping Whistleblowing Protection in Europe: Information Flows in the Public Interest

1-2pm: LUNCH 

2-3.30pm: PANEL 2 – choice between A and B

Panel A: Data protection and surveillance

Chair: Nora Ni Loideain, University of Cambridge

  1. Jiahong Chen, University of Edinburgh, How the Best Laid Plans Go Awry: The (Unsolved) Issues of Applicable Law in the General Data Protection Regulation
  2. Jessica Cruzatti-Flavius, University of Massachusetts, The Human Hard Drive: Name Erasure and the Rebranding of Human Beings
  3. Wenlong Li, University of Edinburgh, Right to Data Portability (RDP)
  4. Ewan Sutherland, Wits University, Wire-tapping in the regulatory state – changing times, changing mores

Panel B: Technology, power and governance

Chair: Chris Marsden, University of Sussex

  1. Monica Horten, London School of Economics, How Internet structures create closure for freedom of expression – an exploration of human rights online in the context of structural power theory
  2. Perry Keller, King’s College, London, Bringing algorithmic governance to the smart city
  3. Marion Oswald, University of Winchester and Jamie Grace, Sheffield Hallam University, Intelligence, policing and the use of algorithmic analysis – initial conclusions from a survey of UK police forces using freedom of information requests as a research methodology
  4. Allison Holmes, Kent University, Private Actor or Public Authority? How the Status of Communications Service Providers affects Human Rights

3.30-5pm: PANEL 3 – choice between A and B

Panel A: Intermediary Liability

Chair: Christina Angelopoulos, University of Cambridge

  1. Judit Bayer, Miskolc University, Freedom and Diversity on the Internet: Liability of Intermediaries for Third Party Content
  2. Mélanie Dulong de Rosnay, Félix Tréguer, CNRS-Sorbonne Institute for Communication Sciences and Federica Giovanella, University of Trento, Intermediary Liability and Community Wireless Networks Design Shaping
  3. David Rolph, University of Sydney, Liability of Search Engines for Publication of Defamatory Matter: An Australian Perspective

Panel B: Privacy and anonymity online

Chair: Paul Wragg, University of Leeds

  1. Gavin Phillipson, University of Durham, Threesome injuncted: has the Supreme Court turned the tide against the media in online privacy cases?
  2. Fiona Brimblecombe, University of Durham, European Privacy Law
  3. James Griffin, University of Exeter and Annika Jones, University of Durham, The future of privacy in a world of 3D printing

5-6pm: TEA BREAK / STRETCH YOUR LEGS

6-8pm: EVENING LECTURE AND DRINKS

Lecture Title: Heads and shoulders, knees and toes (and eyes and ears and mouth and nose…): The impact of the General Data Protection Regulation on use of biometrics.

Biometrics are touted as one of the next big things in the connected world. Specific reference to biometrics and genetic data has been included for the first time in the General Data Protection Regulation. How does this affect existing provisions? Will the impact of the Regulation be to encourage or to restrict the development of biometric technology?

  • Speaker: Rosemary Jay, Senior Consultant Attorney at Hunton & Williams and author of Sweet & Maxwell’s Data Protection Law & Practice.
  • Chair: Professor Lorna Woods, University of Essex
  • Respondents: Professor Andrea Matwyshyn, Northeastern University and Mr James Michael, IALS

Analysing the Advocate General’s opinion on data retention and EU law

7562831366_66f986c3ea_o (1)Last week, the Advocate General published an opinion on a case brought to the European Court of Justice concerning the compatibility of the UK and Sweden’s data retention laws with EU law.

In a detailed analysis, Lorna Woods, Professor of Internet Law at the University of Essex considers the potential implications of the opinion for national data retention regimes (including the UK’s Investigatory Powers Bill) and the legal tensions which arise from the Advocate General’s opinion. This post first appeared on Professor Steve Peer’s EU Law Analysis blog.     

The Advocate General’s opinion concerns two references from national courts which both arose in the aftermath of the invalidation of the Data Retention Directive (Directive 2006/24) in Digital Rights Ireland dealing with whether the retention of communications data en masse complies with EU law.

The question is important for the regimes that triggered the references, but in the background is a larger question: can mass retention of data ever be human rights compliant. While the Advocate General clearly states this is possible, things may not be that straightforward. Continue reading

Whistleblowers and journalists in the digital age

Snowden

Dr Aljosha Karim Schapals, research assistant at the Information Law and Policy Centre, reports on a research workshop hosted by the University of Cardiff on Digital Citizenship and the ‘Surveillance Society’.

A workshop led by researchers at the Cardiff School of Journalism, Media and Cultural Studies (JOMEC) on 27th June in London shared the findings of an 18 month ESRC funded research project examining the relationships between the state, the media and citizens in the wake of the Snowden revelations of 2013.

It was the concluding event of a number of conferences, seminars and workshops organised by the five principal researchers: Dr Arne Hintz (Cardiff), Dr Lina Dencik (Cardiff), Prof Karin Wahl-Jorgensen (Cardiff), Prof Ian Brown (Oxford) and Dr Michael Rogers (TU Delft).

Broadly speaking, the Digital Citizenship and the ‘Surveillance Society’ (DCSS) project has investigated the nature, opportunities and challenges of digital citizenship in light of US and UK governmental surveillance as revealed by whistleblower Edward Snowden.

Touching on more general themes such as freedom of expression, data privacy and civic transparency, the project aligns with the research activities of the Information Law and Policy Centre, which include developing work on journalism and whistleblower protection, and discussions and analysis of the Investigatory Powers Bill. Continue reading

Upcoming Event: 3D Printing in Law and Society

The Information Law and Policy Centre at IALS is pleased to announce the following lecture and book launch:

  • Date: Tuesday, 12 July 2016, from 18:00 to 19:00
  • Location: Institute for Advanced Legal Studies (IALS), University of London
  • Speaker: Dr Angela Daly, Vice-Chancellor’s Research Fellow, Queensland University of Technology Faculty of Law; Research Associate, Tilburg Institute of Law, Technology and Society
  • Discussant: Dr Dinusha Mendis, Co-Director, Centre for Intellectual Property Policy and Management (CIPPM), Bournemouth University
  • Please click here to book via the IALS Eventbrite page

Additive manufacturing or ‘3D printing’ has emerged into the mainstream in the last few years, with much hype about its revolutionary potential as the latest ‘disruptive technology’ after the Internet to destroy existing business models, empower individuals and evade any kind of government control. This lecture will examine some of these themes from a socio-legal perspective, looking at how various areas of law (including intellectual property, product liability, gun laws, data privacy and fundamental/constitutional rights) interact with 3D printing theoretically and in practice and comparing this interaction to that of the Internet before it. Despite rhetoric proclaiming that it is ushering in the end of government control and corporate-enforced scarcity, 3D printing, especially consumer-oriented printers, may not be as disruptive to law and society as commonly believed. This is because 3D printing is not just empowering ‘prosumers’, but government and corporate actors that have been investigating the potential of 3D printing for their own purposes, which may in the end just reinforce existing hierarchies and distributions of power.

This seminar will be followed by the book launch of ‘Socio-Legal Aspects of the 3D Printing Revolution’ by Angela Daly (Palgrave, 2016).

Biographies:

Angela Daly recently joined Queensland University of Technology’s Faculty of Law as Vice Chancellor’s Research Fellow and research associate at the Tilburg Institute for Law, Technology and Society. She is a socio-legal scholar of technology with expertise in intellectual property, human rights (privacy and free expression), and competition and regulation. She is the author of ‘Socio-Legal Aspects of the 3D Printing Revolution’ (Palgrave 2016), which was based on her postdoctoral research at the Swinburne Institute for Social Research, and ‘Private Power, Online Information Flows and EU Law’ (Hart 2017), which was based on her doctoral research at the European University Institute. She also has degrees from Oxford University and the Université de Paris 1 Pantheon-Sorbonne and has previously worked for Ofcom and the Electronic Frontier Foundation.

Dinusha Mendis is an Associate Professor in Law at Bournemouth University and Co-Director of the Centre for Intellectual Property Policy and Management (CIPPM). Dinusha specialises in Intellectual Property Law, in particular copyright law, copyright licensing and digital copyright policy, and has published widely in this area. Her research also includes exploring the challenges to intellectual property law as a result of emerging technologies. In this context, she has conducted extensive funded and independent research on the intellectual property implications of 3D printing and emerging technologies. She has been invited to speak on the topic at the European Parliament; the Office for Harmonization in the Internal Market (OHIM); the UK House of Lords and at various academic organisations, as well as for blue-chip industry clients. During 2015, Dinusha was on research leave and held appointments as a Visiting Scholar at the University of Tasmania Australia and Stanford Law School, University of Stanford California. Dinusha holds qualifications from the Universities of Aberdeen (LLB (Hons)); Edinburgh (LLM, PhD); Nottingham Trent University (BVC), has been Called to the Bar of England and Wales and is a member of the Honourable Society of the Middle Temple Inn, London.

 

The challenge of obtaining DNA evidence: exchanges between EU member states and fundamental rights protection

This guest post by Joaquín Sarrión Esteve,  Assistant Professor, University of Valencia and IALS Visiting Fellow, discusses legal issues around biometric data, based on a seminar presentation in November 2014.

Biometric data represent particular challenges in the fight against globalized crime. New technologies help us to identify persons, using fingerprint/palm print identification, iris identification, face recognition or DNA technology, for example.

The exclusivity of DNA facilitates its use for both paternity investigation, and identifying persons in criminal investigation, by obtaining the DNA or genetic profile.

We can use what is called the non-coding DNA for criminal investigation, which provides a characteristic of each individual. It is an anonymous code distinguishing feature and it can be useful for identifying the identity but it does not provide information on the physical or phenotypic traits of the individual (called the coding DNA ), although we also use the sex characteristic provision. The problem is that science allows the conversion of non-coding DNA to coding DNA.

The exchange of DNA data between EU Member States can help a lot in the fight against globalized crime. In this sense, the EU Legal Framework is based on the assumption of Prüm Convention regime: Council Decision 2008/615/JHA of 23 June 2008 (known as Prüm decision), Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA; and Council Decision 2010/482/EU of 26 July 2010 on the conclusion of the Agreement between the European Union and Iceland and Norway on the application of certain provisions of Prüm decisions.

Anyway, the goal of using DNA data is to obtain valid evidence for a criminal process [in general, a national criminal process]. And to do it, the DNA evidence must be obtained with respect to fundamental rights and legal guarantees in the three stages: the sample collection, the extraction of DNA profile and its treatment in a criminal database (Cabezudo Bajo, 2011).

Really, the problems in relation to this goal arise at three levels: the technical conditions, the interpretation of the results, and finally the respect of fundamental rights in the realization of the DNA evidence.

The goal of my research is to identify the requirements for the respect of fundamental rights in the use of DNA technology in the third stage, because the exchange of DNA data between EU Member States is located at the third stage. Nevertheless, another problem is that to obtain valid DNA evidence using EU exchange data, we need to respect fundamental rights in the three stages. In other words, it is necessary to look at all three stages to identify the requirements of one in isolation.

Moreover, we live in the European legal space, in a context of legal systems with different levels which are increasingly interlinked (Gómez Sánchez, 2011: 20), and therefore we need to use a European multilevel constitutionalism approach to identify fundamental rights and standards that we need to respect (European Convention on Human Rights, EU Fundamental Rights, EU Member States Fundamental Rights) and in order to achieve the goal of obtaining valid DNA evidence.

More information:

  • Download a Powerpoint presentation of Joaquín Sarrión’s research at IALS at this link

References:

M. J. Cabezudo Bajo (2011): “Valoración del sistema de protección del dato de ADN en el ámbito europeo”, Revista General de Derecho Europeo, 25.

M. J. Cabezudo Bajo (ed) (2013): Las bases de datos policiales de ADN ¿son una herramienta realmente eficaz en la lucha contra la criminalidad grave nacional y transfronteriza, Dykinson.

Y. Gómez Sánchez (2011): Constitucionalismo multinivel. Derechos fundamentales, Sanz y Torres.

J. Sarrión Esteve (2014),  “Derechos fundamentales afectados en la toma de muestras biológicas para la obtención de una prueba de ADN válida y eficaz, desde el punto de vista del Derecho interno y del Derecho de la Unión Europea.”, Revista de Derecho y Genoma Humano / Law and the Human Genome Review, Extra 1.