Reimagining the Court of Protection: Access to Justice in Mental Capacity Law

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Dr Jaime Lindsey of Essex Law School has recently published a book titled Reimagining the Court of Protection: Access to Justice in Mental Capacity Law with Cambridge University Press. Dr Lindsey provides an original account of the workings of the Court of Protection as one of the first researchers authorized to observe hearings and access the court’s files. Using original empirical data, the book takes a socio-legal approach to understanding how the Mental Capacity Act operates in practice to achieve access to justice.

Dr Lindsey contributes to the call for the reform of this important court from a procedural justice perspective, to ensure a better experience for those who use it, and to meet the requirements of access to justice.

A piece detailing further information about this book was published on Cambridge Blog and can be found here.

Competition Law in Context: Workshop Retracing the Work of Professor Steve Anderman

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In collaboration with the Oxford Centre for Competition Law and Policy & Journal of Antitrust Enforcement, the Swedish Network for European Legal Studies (SNELS) invites the public to a workshop in honour of emeritus Professor Steven Anderman at Essex Law School.

Björn Lundqvist (SNELS/Stockholm University) and Hedvig Schmidt (Southampton Law School) will host the workshop which seeks to capture the common theme oriented towards the “big ideas” which kept Professor Steven Anderman’s attention throughout his academic career: ‘competition’ as a means to secure the very basis of the EU’s legal order. Steven has an outstanding talent to place legal problems into a broader context and framework. This is what the workshop would like to retrace in his work, and what the workshop will seek to portray.

The workshop will be held on 26 January 2023 in the Harold Lee Room at Pembroke College, Oxford from 1.20pm-7pm GMT.

For registration and any further questions regarding this invitation, please email the network coordinator Palle Söderberg at palle.soderberg@juridicum.su.se.

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

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

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

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

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

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

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

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

The ELR Blog Takes A Short Break

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Christmas is just around the corner. With all the hustle and bustle of academic life, we all need a little time off to refresh, recover and reflect.

As of this week (Monday 19 Dec. 2022), we’ll be taking a winter break.

We hope that you can look back on another positive year with us. In 2022, we had 70 posts and thousands of visitors from 112 countries around the world.

The ELR Blog will be back in January 2023 with more exciting research news from the Essex Law School.

We wish you and your family all the warmth this holiday season has to offer.

We hope you have a wonderful Christmas and a New Year filled with peace and joy!

The Research Visibility Team

Hijab Law in Iran Over the Decades: the Continuing Battle for Reform

Iranian woman standing in the middle of Iranian protests for equal rights for women; image via Shutterstock

By Dr. Sahar Maranlou, Essex Law School

Protests have quickly spread across Iran calling for a change in the law after the death of a 22-year-old woman, Mahsa Amini, in the custody of the morality police.

The young woman was accused of violating rules on wearing hijab in public. The term hijab is an Arabic word meaning cover. However, it has been used to refer to different types of covering since 1970, from a long-sleeved coat, pants and scarf to the Islamic government’s preferred form of dress, chador, which is a loose-fitting black cloth covering the entire body.

Two quite different forms of law, from opposite ideologies, have been used to try to control women and the covering of their hair and body in the last 90 years.

The first attempt to use hijab as the subject of legislation was in 1936 by a new monarch, Reza Shah (1925-1941), who wanted to force women to remove the veil in public under his “unveiling” order. The shah’s vision of modernity, influenced by Turkish leader Mustafa Kemal Ataturk, included changing what Iranian women wore.

From 1941 to 1979 there was no law that instructed women what to wear, but many women still wore headscarves either as a statement against the monarchy or because their choices were restricted by patriarchal values such as namus (honour) and the strict control of male members of the family.

The 1979 Islamic revolution introduced the idea of hijab law. On March 8 1979, thousands of Iranian women marched in the street, protesting the idea of imposing hijab with slogans such as “freedom of choice in clothes”. Wearing hijab became obligatory for all Iranian women from April 1983. Since then, all women have been legally obliged to wear hijab in public, even non-Muslims and foreigners visiting Iran.

Over the years, the Islamic government has introduced even more legal measures and social restrictions to enforce mandatory hijab laws. Criminal punishment for those violating the law was introduced in the 1990s and ranged from imprisonment to fines.

However, there was a different shift in policing the way women in Tehran dressed, starting in January 2018. According to this new decree, women who did not observe the Islamic dress code no longer faced fines or imprisonment but rather had to attend Islam educational classes. “Women will no longer be taken to detention centres, nor will judicial cases be filed against them,” said local media reports citing Tehran police chief General Hossein Rahimi.

In such cases the morality police, Gasht-e Ershad, usually escort women to a police van and then to a class. The women are then required to sign a form saying they will not commit the “bad hijabi” offence again, and forced to take part in police-organised “guidance” to learn how they should observe Islamic values. This new order only applies in the capital Tehran – but even there, women who broke the dress code repeatedly could still be subject to legal action.

Beyond the discriminatory aspects of the mandatory dress code, one important legal issue is that the crime of “bad hijabi” or “improper hijab” is not defined by the law. Because the law is very loosely drawn, enforcers such as the morality police can choose to interpret it differently and crack down on women in various ways.

Path to law reform

Iran’s existing laws and legal practices draw from different sources, ranging from constitutional law, legislation and government bylaws to customs and Islamic principles.

Article 146 of the constitution binds the judge who “endeavours to judge each case on the basis of the written law. In case of the absence of any such law, s/he has to deliver his judgment on the basis of authoritative Islamic sources”.

The way Iranian women dress differs across different parts of the country and according to cultures, socioeconomic backgrounds, political views and religious beliefs. The mandatory hijab law is not only about taking away women’s control of their bodies in public. It affects every aspect of everyday life in Iran. For example, it forces the segregation of the sexes and promotes censorship (women are not allowed to appear without hijab on TV or in movies).

During the last few decades, Iranian women’s groups have fought to change this law. Every day, they have fought the state’s notion of “proper dress” by choosing what they wear, their fashion, their make-up, the way they walk out of their houses. In every step they take in public, they have challenged the discriminatory law that can stop and tell them that their personal choices are “improper”. In doing so, they put themselves at risk of criminal punishment ranging from imprisonment to fines.

Even though compulsory hijab has been instituted, criminalised and promoted as the main Islamic state gender policy, women’s efforts to negotiate their rights have been brave and remarkable. This continuing quest for justice, gender equality and freedom of choice has been embodied in the “women, life, freedom” slogan.

In these protests, both in the streets and on social media, Iranian women (and men) are calling for the obligatory hijab law to be abolished. Surveys suggest public opinion is widely behind a change in the law. Opposition has grown over the last few weeks, driven by social media and hashtag activism. There is hope that public demands to reform the obligatory dress code in Iran will create change.


This article was first published on The Conversation and is reproduced on the ELR Blog under a Creative Commons Licence. View the original article here.

Report urges Home Secretary to Reform Police Accountability

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Police accountability is paralysed by “ineffective and impotent” Police and Crime Panels (PCPs) that are powerless to hold Police and Crime Commissioners (PCCs) to account, new research reveals.

The findings, reported exclusively in The Times, come as six of the nation’s forces have been hit with special measures by regulators, the Met has been rocked by a series of controversies, and when the Home Office conducts Part 2 of the Police and Crime Commissioner Review.

Dr Simon Cooper of Essex Law School, has found that PCPs, introduced as part of flagship Conservative reforms in 2011 are “toothless”, leaving police accountability, for the first time in history, largely dependent on the one-to-one relationships between Chief Constables and elected Police and Crime Commissioners (PCCs).

As part of the study, Dr Cooper gained unprecedented access to senior policing figures including someone directly involved in introducing the current accountability model.

In his report, which will be published in Policing: A Journal of Policy and Practice, Dr Cooper urges Home Secretary Suella Braverman to launch an urgent review to “safeguard the accountability and governance of policing.”

He also recommends the introduction of binding contracts between PCCs and Chief Constables after finding the current structure is “unbalanced, untested and risky.”

‘Police Relational Accountabilities: The Paralysis of Police Accountability?’ is the result of a qualitative study based on 17 interviews with Chief Constables, PCCs and Chairs of PCPs across five police force areas as well as one person directly involved in introducing the current system and one of the most senior figures in policing at a national level.

Anonymous 90-minute interviews reveal an overwhelming view that PCPs, which are meant to support, scrutinise and maintain a regular ‘check and balance’ on PCCs, are “entirely impotent and ineffective” according to the report.

One PCC stated that “PCCs aren’t concerned or fearful of their PCP” with another saying “my mandate is from the people who elected me so sod the PCP.” Even PCP Chairs, whose only sanctioning power is to publicly shame a PCC, said “we are toothless” and “PCPs can’t do anything, there are no checks and balances at all.”

“The result is that for the first time in the history of modern policing, the accountability and governance of policing is rendered subject to the one-to-one relationship between a PCC and their Chief Constable. A relationship that could be fractious, dysfunctional, volatile or overly cosy,” explained Dr Cooper.

That risk is backed up by the interviews with one Chief Constable saying “I know some of my colleagues have awful relationships with their PCCs”. One of the most senior people in policing at a national level said that accountability rests “not just on the relationship but also on the calibre, experience and wisdom of the person elected as PCC and believe you me that varies enormously.”

Dr Cooper said: “The case of Cressida Dick, who one report has found was ‘constructively dismissed’ by her PCC, London Mayor Sadiq Khan, demonstrates what can happen when the relationship between a Chief Constable and their PCC breaks down, and reported wider problems in The Met Police show why an effective structure of police accountability is so vital.

“As laid out by one of the Chief Constables I interviewed, the current model for police accountability rests too heavily on a series of ‘ifs’: if the PCP is effective, if the PCC has principles and experience, if the Chief Constable is of the right character then it can be effective but this is not an effective or sustainable model for holding a modern police force to account.”

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

This story was first published on the University of Essex’s news webpages and is reproduced on the ELR Blog with permission and thanks.

Local Public Entities in Distress: An English Perspective

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By Prof Yseult Marique, University of Essex (ELS, UK), FöV Speyer (DE), UC Louvain (BE) and Dr. Eugenio Vaccari, Royal Holloway, University of London (UK)

Introduction

This is arguably one of the most difficult times in history for local authorities around the world. Authorities in developed countries like the UK are no exception. Councils in the UK face issues that are common to all types of local entities, such as inflationary costs for the provision of essential services (particularly social care) and reduced transfers and tax collection abilities due to the current global economic recession. In addition, they face unique challenges. These include increasing costs to service the commercial debt they had been encouraged to take in previous years, a dwindling and aging population, and increased demands of essential services from a more vulnerable population.

Building on a study funded by INSOL International and recently published in the INSOL International Technical Library, we discuss the treatment of financially distressed English authorities. The purpose of this short Inside Story is to uncover the causes of municipal failures, assess the remedies available under the law and discuss whether regulatory changes are needed to improve the status quo.

Why Do Councils Fail?

The short answer is: for a lot of reasons, and quite frequently for more than one reason. However, the recent experience of financially distressed local entities suggests that at least three triggering factors are recurring.

The first one is malpractice, and it is exemplified by the case of Liverpool. In November 2022, Rt. Hon. Michael Gove, Secretary of State for Levelling Up, Housing and Communities and Minister for Intergovernmental Relations, appointed a financial commissioner at Liverpool to oversee the council’s dire financial situation. This appointment follows a second critical commissioners’ report. These commissioners were appointed in 2021 after an emergency inspection found a “serious breakdown of governance” and multiple failures to provide best value to taxpayers in the city. The inspection was triggered by the arrest of the city mayor and other top civil officers (December 2020) as part of a police investigation into allegations of fraud, bribery, corruption and misconduct in public office. Unfortunately, it does not seem that the changes introduced since 2021 have resulted in a marked improvement of the financial situation of the council. In October 2021, shortly after appointment, the commissioners reported that Liverpool faced a £33m shortfall for the 2022-23 budget. By the time of the second report in June 2022, this figure had increased to £98.5m to 2025-26, thus justifying the urgent appointment of a financial commissioner.

The second “triggering factor” is poor governance. Poor governance and accountability are common elements in almost all the recent cases of distressed councils in the UK. However, they were probably the determining factors for some of the best-known municipal fallouts in recent times, such as Croydon and Nottingham.

The London Borough of Croydon – whose case was analysed in detail in a report from the Housing, Communities and Local Government Committee – issued a section 114 notice (more on this in the next section) in 2020-21 after it emerged the authority was unable to balance its budget, effectively declaring itself bankrupt. A public interest report from the council’s external auditors (October 2020) highlighted that the council reported significant overspend in areas such as children’s and adult social care. However, the same report questioned the use of the flexibility granted by the government to deal with these issues. Finally, the report argued that the main factor for the council’s financial demise was its excessive corporate borrowing, which led the council to invest in under-performing companies and exposed future generations of taxpayers to significant financial risk. As a result of its financial difficulties, following a complete overhaul of its corporate structure, Croydon has received two capitalisation directions of £75m in 2020-21 and £50m in 2021-22 allowing the use of capital resources for revenue spending to cover budget deficits. Despite this, Croydon has received minded approval for a third direction in 2022-23 worth £25m.

The case of Nottingham is somehow similar to that of Croydon. The issues in the city became public knowledge after the council’s external auditors issued a public interest report (August 2020). The report raised concerns on how a wholly-owned subsidiary of the council, Robin Hood Energy, was being run, and the lack of financial information shared with the external auditors and the council itself. This report was followed by the government’s appointment of an improvement and assurance panel (November 2020) and finally by the council being forced to issue a section 114 notice in December 2021 after it emerged that the authority unlawfully used funding earmarked for its housing on revenue spending.

Finally, the third triggering factor is failure in commercial investments. Several councils are struggling financially to either refinance or service their commercial debt, especially at a time of rising interest rates. Some of them, such as Slough and Thurrock, failed in their efforts to avert external intervention and “bankruptcy”.

The case of Slough hit the news in July 2021, when its CFO issued a section 114 notice after some failed attempts to recapitalise the borough with funds from the government and financial investors. This procedure has led to the sale of most of its properties and assets at a loss – some of them bought just a few years before in an attempt to diversify and increase the revenue capacity generation of the authority.

This case shares some similarities with the demise of Thurrock. In May 2020, a major investigation from the Financial Times unveiled that Thurrock, a local authority in Essex, borrowed almost £1bn from 150 other UK local authorities and pension schemes to fund its renewable energy assets. However, the case did not result in governmental actions until recently, partly due to the Covid-19 pandemic. Only in September 2022, the government exercised its powers under section 15(11) of the Local Government Act 1999 to nominate Essex County Council as a commissioner for Thurrock, due to the scale of the financial and commercial risks potentially facing the authority and the lack of proper, timely and radical intervention from the council. This intervention was shortly after followed by an authorisation to borrow almost £840m from the Public Works Loan Board (PWLB) – a body attached to the Treasury that funds councils’ infrastructure spending – to refinance some of the loans taken from other UK local authorities.

Slough and Thurrock are not isolated cases. Local authorities such as Spelthorne in Surrey have borrowed heavily from the PWLB to offset the cuts in direct transfers from the central government. The issue is that if and when these investments fail – a circumstance that is rendered more likely by the lack of commercial and financial expertise in the councillors running these entities – local and national taxpayers are left to deal with the huge financial consequences of these failed entrepreneurial activities.

What Are the Remedies Available to Financially Distressed Councils?

The general approach followed by English law is to provide a series of mechanisms to local authorities to deal with financial difficulties before they become insolvent. These preventive restructuring measures include reducing costs, sharing services with other local authorities, and mergers between local authorities. It is also possible for councils to rely on loans from PWLB, bonds, and loans, as well as raising local taxes.[1] Should these measures fail, the framework for dealing with councils in financial distress is outlined by the Local Government Finance Act 1988 and the Local Government Act 1999. The key figures are the CFO of the local authority and the Secretary of State.

Uniquely across the public sector, CFOs have the power and legal responsibility to suspend a local authority’s spending for a period of time if they consider the council not to have a balanced budget or if there is an imminent prospect of default. In serious cases of financial distress, CFOs have a more general power to stop a local authority from entering into new transactions and performing some of the existing ones. This power is granted by section 114(3) of the Local Government Finance Act 1988 (“section 114 notice”).

CFOs will only issue such a notice if they have formed the view that future expenses are out of control, to the point that the local authority to which they are appointed is likely to end the financial year with a budget deficit and that it is impossible to broker a solution without issuing a section 114 notice.

It is quite likely that the procedure will result in the appointment of new independent commissioners for the local authority in debt. Newly-appointed independent commissioners will deal with a local authority’s financial distress without liquidating it as, under English law, local authorities cannot be liquidated. They can only be rescued. Local authorities cannot be subject to other debt resolution mechanisms (for example, state oversight, active supervision, or financial assistance from other authorities) apart from those outlined in this section.

What Else Can Be Done?

Section 114 notices are late warning signals. The consequences of issuing such notices are severe for the councils that issue them. All but essential expenses are frozen, and councils may be forced to merge with neighbouring ones; for instance, Northamptonshire councils were forced to merger in two unitary authorities in 2018.

The harshness of the consequences associated with section 114 notices have been designed to push councils to take timely decisions to avoid experiencing serious financial pressures. Yet, the changed policy and funding environment described in this paper coupled with a lack of expert auditors to supervise a council’s activities may lead to local authorities experiencing serious financial difficulties. If this happens, the consequences for councils, their workers, the services they provide and their existing procurement contracts are draconian.

This punitive approach towards failure has no equivalent in the English corporate or personal insolvency law framework, and it lacks proper theoretical justification. As mentioned in our paper submitted to INSOL International, reforms aimed at supporting local authorities experiencing financial difficulties, rather than punishing them for being indebted, are needed to realign the treatment of local public entities in distress with the rest of the English insolvency framework.

The UK’s legislative framework for dealing with local authorities in distress is inadequate. No day passes without news that other councils are likely to issue a section 114 notice – see, for instance, the recent warning about the Tory-run councils of Kent and Hampshire. These procedures have lasting impacts on local taxpayers and, especially, on vulnerable citizens. We believe that the time is ripe to discuss the implementation of a more mature, comprehensive framework aimed at addressing the causes of municipal failures. This framework should result in the implementation of an alert, modular system designed to take prudent fiscal measures at the first signs of crisis, without necessarily resulting in the displacement of the council’s existing management.


[1] For a clear outline of the preventive restructuring solutions, see Nick Gavin-Brown, “Restructuring Options for UK Local Authorities” (20 August 2018), available at: <https://www.pinsentmasons.com/out-law/analysis/restructuring-options-uk-local-authorities>.


This piece was first made available on the website of INSOL Europe and is reproduced on the ELR Blog with permission and thanks.

DCMS Report on Influencer Culture: Regulatory Gaps and Government Response to Calls for Reforms

Photo by Karsten Winegeart on Unsplash

By Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

On 9 May 2022, the House of Commons Digital, Culture, Media and Sport Committee (which is responsible for scrutinising the work of the Department for Digital, Culture, Media and Sport and its associated public bodies, including the BBC) published its report on influencer culture, following the conclusion of its inquiry into influencers’ power on social media. Whilst acknowledging the benefits and the significant returns that influencer culture brings to the UK economy, the Committee emphasised that the industry needs to be given more serious consideration by the government. In the words of the DCMS Committee Chair Julian Knight MP, “as is so often the case where social media is involved, if you dig below the shiny surface of what you see on screen you will discover an altogether murkier world where both the influencers and their followers are at risk of exploitation and harm online”.

Devising a formal definition of the term ‘influencer’ is challenging, yet necessary in effectively enforcing rules and regulations. For the purposes of its report, the DCMS committee defined an influencer as “an individual content creator who builds trusting relationships with audiences and creates both commercial and non-commercial social media content across topics and genres” (para. no: 3). Influencer culture was taken to mean ‘the social phenomenon of individual internet users developing an online community over which they exert commercial and non-commercial influence’ (para. no: 1).

On the whole, the Committee found low rates of compliance with advertising regulation and concluded that employment protection has failed to keep up with the growth of online influencer culture, leaving those working in the industry unsupported and child influencers at risk of exploitation.

Four broad key issues pertaining to influencer culture emerged from the Committee’s inquiry, in particular.

Behind the camera

Despite the industry’s popularity, earning a living from social media influencing appears challenging. The report takes a look behind the scenes and goes beyond the superficial glamour and public perception, often involving paid-for holidays and free gifts. The report highlights that influencers face a range of challenges including hacking, impersonation, algorithmic unpredictability, mental health issues, online abuse, trolling and harassment. This appeared to be a bigger problem for women (compared to men) which is exacerbated by the “lack of developed support from the surrounding ecosystem of platforms, regulators, talent agencies and brands” (para. no: 15).

Transparency around pay standards and practice

Despite social media influencing being a rapidly expanding subsection of the UK’s creative industry, making a living in it remains difficult. Only few influencers appear to take the lion’s share of well-paid work, but many others struggle to make a living. Similar to other professions in the creative sector, many influencers classify as self-employed, which may mean that they experience uneven revenue streams and lack of employment protections (e.g., maternity or sick leave).

Moreover, the Committee points out the lack of payment transparency which has resulted in pay gaps between different demographic groups, affecting particularly influencers from ethic minority groups. Despite the fact that social media platforms understand the value that influencers bring to their business model, they do not always “appropriately and consistently” (para. no: 58) compensate influencers for the work that goes into producing content that attracts users.

The state of influencer compliance and gaps in advertising regulation

The scale of the sector and the volume of content generated across multiple platforms has outpaced the capabilities of UK advertising regulation. According to the UK’s Competition and Markets Authority, influencer compliance rates with UK advertising regulations remain “unacceptably low” (para. no: 74). Earlier in March 2021, the UK’s Advertising Standards Authority had reached similar conclusions in its research on influencer ad disclosure. The advertising watchdog’s report revealed a “disappointing overall rate of compliance” with its rules requiring ads on social media to be clearly signposted as such (see IRIS 2021-5/7 for more).

Despite platform-specific guidance on ad labelling and training for influencers, brands and agencies, the messaging around the rules on advertising transparency still lacks clarity and disclosure requirements are practiced with a high degree of variation. New entrants to the influencer marketplace, who may not receive adequate support, are still unaware of their obligations under the advertising rules.

Children as viewers and children as influencers

Influencer content on social media is becoming increasingly popular with children, but the close bond children develop with online figures leaves them at risk of exploitation. Evidence suggests that children are more vulnerable to native advertising as they find it challenging to distinguish and identify. Current advertising regulation does not appropriately consider their developing digital literacy and sufficiently address the need for enhanced advertising disclosure standards that meets children’s needs.

Furthermore, influencers may be financially incentivised to share “extreme content” (para. no: 104) that includes misinformation and disinformation which may affect children and other vulnerable groups susceptible to harms arising from this type of content. Influencer promotion of unattainable lifestyles and unrealistic beauty ideals was flagged as a particular issue, especially because its consistent message (i.e., ‘what you look like matters’) and the damaging pressure it generates are likely to contribute to mental health issues such as depression, anxiety, body dysmorphia and eating disorders. Currently, there is not enough regulation to protect children from this.

Concerns are expressed over the lack of protection for children participating in this new industry as successful influencers themselves (e.g., through gaming channels) and the impact this may have on their consent and privacy. Child influencers do not enjoy the same standard of protection around pay and conditions of work as traditional child performers in the entertainment industry. This is because child performance regulations do not currently apply to user-generated content.

Committee recommendations

In response to the issues identified earlier, the Committee makes a range of recommendations that call on the government to strengthen both employment law and advertising regulation. Specifically, the Committee recommends that the government: (a) conducts an industry review into the influencer ecosystem to address knowledge gaps; (b) develops a code of conduct for the industry as an example of best practice for deals between influencers and brands or talent agencies; (c) gives the ASA statutory powers to the enforce advertising standards under its Code of Non-broadcast Advertising and Direct & Promotional Marketing; (d) updates the same Code to enhance the disclosure requirements for ads targeted to audiences composed predominantly of children; and (e) addresses gaps in UK labour legislation that leave child influencers vulnerable to exploitation (including working conditions and protections for earnings).

Image via Shutterstock

The government response: no indication of a change in mood

On 23 September 2022, the House of Commons Digital, Culture, Media and Sport (DCMS) Committee, which is responsible for scrutinising the work of the Department for Digital, Culture, Media and Sport and its associated public bodies (including the BBC), published the government response to its report Influencer Culture: Lights, camera, inaction? (previously reported on IRIS 2022-7/18).

The Committee had found low rates of compliance with advertising regulation and concluded that employment protection had failed to keep up with the growth of online influencer culture, leaving those working in the industry unsupported and child influencers at risk of exploitation. It made a range of recommendations that called on the government to strengthen both employment law and advertising regulation.

The Advertising Standards Authority (ASA), which monitors advertisements across the UK (including influencer marketing) for compliance with advertising rules, as well as the Competition and Markets Authority (CMA), which enforces competition and consumer laws and has powers to conduct investigations in suspected violations of these laws in the market, submitted separate responses to the Committee’s recommendations earlier in July 2022.

Recommendations concerning the ASA and the CMA

The government welcomed the Committee’s recommendations on strengthening the ASA’s regulatory tools (e.g., to be given statutory powers to enforce its rules) but pointed to the work currently undertaken as part of its Online Advertising Programme, which aims to improve transparency and accountability across the online advertising supply chain. The government also agreed that the CMA should have more powers to enforce consumer protection law and stated that it will bring forward its Digital Markets, Consumer and Competition Bill (announced in the 2022 Queen’s Speech) to provide for regulatory changes (including giving CMA the ability to decide for itself when consumer law has been broken and to impose monetary penalties when breaches are established).

Influencer careers and influencer harassment

The government agreed with the Committee that pursuing a career as an influencer often came with challenges, including a worrying rise in the amount of online abuse, harassment and intimidation directed towards them. Reference was made to Online Safety Bill (OSB), which will require technology companies to improve their users’ safety and take action against online abuse and threats on their services. The Bill places, in particular, a statutory duty on in-scope services to operate complaints procedures that provide for “appropriate” action to be taken by the provider in response to relevant complaints (clauses 18(2b) and 28(2b)). Services will be thus expected to consider the nuances of different types of harm and the appropriateness of their action in response to the complaints they receive. However, the progress of the Bill towards becoming law has been (at the time of writing) paused, with some of its most controversial elements being subject to government review.

Influencer code of conduct

In its response, the government expressed strong support for the Incorporated Society of British Advertisers’ (ISBA) Influencer Code of Conduct, noting that the ASA had already published guidance for influencers which existed alongside the Code of Conduct for the Influencer Marketing Trade Body. The government agreed with the Committee’s proposal to develop a code of conduct which would complement ISBA’s existing work by promoting good practice in the coordination between influencers, brands as well as talent agencies. It is unclear though how the different codes of conduct and guidelines will work together effectively.

Media literacy and children influencers

Children are often unable to differentiate undisclosed advertising from other types of content they access on social media. The Committee had found in its report that both children and parents were not being adequately supported in developing media literacy skills to make informed choices online. Although the government appreciated the risk of children being exploited as consumers of influencer content, it referred to its ongoing work on the Online Media Literacy Strategy, which is designed to equip users with the knowledge and skills required to become more discerning consumers of information. The OSB is also intended to strengthen Ofcom’s (the UK’s communication regulator) media literacy functions by including media literacy within the new transparency reporting and information-gathering powers.

The government also recognised the regulatory gap in relation to safeguarding children acting as “brand ambassadors” themselves. Under existing law (i.e., section 37 of the Children and Young Persons Act 1963), a licence must be obtained before a child can legally participate in certain types of performance and activities in Great Britain (including for example any live broadcast performance or any performance recorded to be used in a broadcast or a film intended for public exhibition). However, this protection does not extend to user-generated content, e.g., where young people or a family record themselves and share it on social media. The government pointed out that the Department for Education is open to exploring legislative options that may provide more effective protection to children but there was no express commitment to this.

Overall, the government welcomed the Committee’s comprehensive inquiry into influencer culture and recognised that it shed much-needed light on the influencer ecosystem and its impact on both traditional and digital media. However, the government’s response provides little indication of what concrete frontline actions will be taken.


This post replicates articles published earlier on the IRIS Merlin legal database. The original pieces can be viewed in IRIS 2022-7:1/18 and IRIS 2022-10:1/17.

A Right Not to Be Trafficked

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What is ‘modern slavery’ and who is responsible for it?

What is the relevance of human rights law, which primarily regulates state conduct, for practices predominantly committed by private actors?

Where can victims seek justice and redress when national authorities fail to protect them?

In her new book State Responsibility for Modern Slavery in Human Rights Law: A Right Not to Be Trafficked, Dr. Marija Jovanovic analyses the role and responsibility of states for addressing ‘modern slavery’ – a diverse set of practices usually perpetrated by non-state actors – against the backdrop of international human rights law. Her work explores the dynamic between criminal law and human rights law and reveals the different ways these legal domains work to secure justice for victims.

In particular, the book considers the ‘absolute’ nature of the prohibition of modern slavery in human rights law, the range of practices covered by this umbrella term and their mutual relationships, the positive obligations of states established by international human rights tribunals owed to individuals subject to modern slavery, and the standards for assessing state responsibility in these situations.

By engaging with the concept of exploitation in human rights law, Dr. Jovanovic glues together diverse practices of modern slavery, including servitude, forced labour, and human trafficking, into a coherent concept.

State Responsibility for Modern Slavery in Human Rights Law: A Right Not to Be Trafficked elucidates the theoretical foundations of this fundamental human right and explains why human trafficking has an independent place within it.

In addition to providing a comprehensive critique of the existing human rights jurisprudence, the book offers a roadmap for the future development of law on this subject, emphasising the limits of human rights law as a tool for addressing modern slavery.

Dr. Jovanovic’s book will be published by Oxford University Press in January 2023.

Financial Assistance Conditionality and Effective Judicial Protection: Chrysostomides

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By Anastasia Karatzia, Essex Law School

Dr. Anastasia Karatzia and Dr. Menelaos Markakis (Erasmus University Rotterdam) jointly published an article in the Common Market Law Review titled ‘Financial assistance conditionality and effective judicial protection: Chrysostomides‘. 

The article is a commentary on the ECJ’s judgment in the case of Council v K. Chrysostomides & Co. and Ors. It analyses the reasoning behind the ECJ’s findings regarding the legal nature of the Eurogroup, explores the implications of these findings for the accountability of the Eurogroup, and looks at the justiciability of the actions of the Council, Commission, and ECB in the context of the financial assistance programme for Cyprus and the EMU more generally speaking. 

The authors argue that the ECJ could have concluded that the Eurogroup is an EU institution within the meaning of Article 340(2) TFEU and that the theoretical possibility to hold the other EU institutions involved in financial assistance programmes accountable for their actions does not always suffice to guarantee the effective judicial protection of aggrieved individuals. This is the culmination of years of research on the topic of judicial protection in financial assistance given to EU Member States.

The article can be accessed in full here.