On 11 November 2020, Dr. Emily Jones, Lecturer in Law at the University of Essex, spoke in the Ghandi Research Seminar Series at the University of Reading Global Law at Reading (GLAR) group. The topic of Dr Jones’ talk was ‘Posthuman International Law and the Rights of Nature.’
The paper began by outlining what ‘the environment’ of international environmental law is, looking at both general public international environmental law regimes as well as developments within the field of human rights and the environment. Overall, the paper argued, by drawing on critical environmental law scholarship, that ‘the environment’ of environmental law largely remains anthropocentric in its conceptualisation, separating human, non-human and environmental interests into separate legal spheres and promoting human interests above all others. A more integrated approach to environmental law was highlighted as being necessary.
The paper then moved on to consider the usefulness of applying a posthuman theoretical framework to re-imagine international environmental law. Noting the links between posthuman theory and emerging rights of nature approaches to legal environmental protections, the paper went on to argue for the need to situate posthuman theory at the centre of the rights of nature project, it being noted that this will prove especially key as global standards are developed and begin to emerge.
The paper drew on examples of where nature has been granted rights in various contexts, including in Ecuador, New Zealand and the US. The examples were used to analyse best practice and emerging standards. Seeking to re-think the law in the posthuman, the paper concluded by outlining the potentials in the rights of nature project as well as the limitations, highlighting the barriers faced with working within, albeit seeking to change, the liberal humanist frame that is international law.
The paper given will make up part of a journal article on the same topic that Dr Jones is currently drafting. To listen to recording of this talk, please go to the GLAR website here.
Epigenetic methods are state-of-the-art scientific methods that reveal features of genetic material (DNA), named epigenetic marks, which change in response to environmental factors, without affecting the genetic information carried by DNA. Epigenetic changes, however, affect gene activity, making genes more active or less active.
This paper reviews scientific evidence indicating that traumatic experiences are associated with changes in epigenetic marks and argues that, given that torture is an extremely traumatic event, it is likely to be associated with epigenetic changes as well. The article contends that it is worth testing whether epigenetic methods can be used to provide evidence consistent with torture because, if this potential were realised, it would contribute to preventing, documenting and prosecuting torture, and bringing justice and reparations to torture survivors. Perhaps it could even help to refine the definition of torture. The paper also discusses the importance of taking into account the limitations and ethical implications of epigenetic methods.
You can read the article in the Torture Journal (volume 30, issue 2, pp. 19-34), by clicking on this link.
On November 2 2020, London’s High Court handed down its hotly anticipated judgment in the high-profile libel case brought by Hollywood actor Johnny Depp over a newspaper article which labelled him a “wife-beater”. In his 585-paragraph ruling the presiding judge, Mr Justice Nicol, dismissed the actor’s claim, holding in essence that the words used in The Sun’s report were legally acceptable.
Depp brought a libel action against The Sun’s publisher (and the newspaper’s executive editor Dan Wootton) in respect of an 2018 article which was first published online under the headline: “GONE POTTY: How can JK Rowling be ‘genuinely happy’ casting wife beater Johnny Depp in the new Fantastic Beasts film?” The story asserted that Depp was violent towards his ex-wife Amber Heard during their relationship.
Depp’s case was that the article made seriously defamatory allegations which bore the meaning that he was guilty of serious domestic violence against his former wife. The defence maintained that the evidence showed the claimant “was violent towards Ms Heard on multiple occasions” during their relationship, and thus the “wife-beater” claim was justified. They relied on 14 alleged incidents of serious physical assault against Heard which had occurred between 2013 and 2016. However, Depp consistently denied the “reputation-destroying and career-ending” allegations.
The case was heard over the course of 16 days at London’s Royal Courts of Justice in July 2020. Importantly, neither Depp nor Heard was on trial. And this wasn’t a criminal trial either. In this libel dispute, there were two central issues: the meaning of the articles complained of; and whether the imputation conveyed by them (that the Hollywood actor engaged in unprovoked attacks and violent conduct against his ex-wife) was true in substance and fact. Mr Justice Nicol held that the meaning of the words complained of was as contended for by The Sun, namely that Depp was violent to Heard, “causing her to suffer significant injury and on occasion leading to her fearing for her life”.
The judge also expressly acknowledged that Depp proved the necessary elements of his cause of action, that his reputation had been damaged. But, under UK defamation law, if a defendant proves that the published words are “substantially true”, they will have a complete defence: they cannot be successfully sued regardless of the gravity of the allegations. In this case, the judge found that the great majority of alleged incidents of violent physical assault against his ex-wife were proved to be substantially true and dismissed Depp’s claim.
Was it all worth it?
Anyone following the case may have reasonably queried whether Depp’s action was ill-advised. Traumatic, intensely intimate and unflattering details of a tumultuous relationship apparently punctuated with blazing rows, a drug and alcohol-fuelled lifestyle and allegations of domestic abuse – strenuously denied – were uncovered in court and made front-page news worldwide.
A parade of witnesses, including A-list actors, strode into London’s High Court to support each side’s versions of events. The court heard details of a costly trail of destroyed property, a severed finger apparently caused by a thrown vodka bottle, profoundly acrimonious texts and “a large pile of faeces” left in a bed.
In addition to the revelation of unattractive details of his personal affairs, Depp had to shoulder a taxing evidential burden as a result of a recent Supreme Court ruling. The court’s decision in a 2019 defamation case involving two UK newspaper publishers established that the threshold test for “serious harm” in defamation actions has been significantly raised under the 2013 Defamation Act. This has made it more difficult for claimants to succeed in their actions.
Nevertheless, Depp must have considered that the trial was the lesser of two evils compared to unanswered reputational attacks of this magnitude. The conduct alleged was essentially criminal and highly defamatory, especially in the post-#MeToo landscape. The judge’s ruling suggests that the actor correctly assessed the potential reputational damage that the words “wife-beater” would cause to his future.
The heavy focus on Depp’s alleged criminal wrongdoing in The Sun’s article, the extent of its publication, the long-term effect of online libel and the undesired prospect of the actor’s removal from his role in a major film franchise provided a strong impetus for the claimant.
NGN took an equally bold, yet somewhat risky, decision. By relying on the defence of truth, the publisher was required to establish the essential truth of the “sting” of the libel. This means that it was not necessary for NGN to prove that every single aspect of the statement complained of was absolutely true, so long as, taken as a whole, it was accurate.
The standard of proof needed for a truth defence is that used in civil cases generally – the material must be proved true “on the balance of probabilities”. This is a lower bar to achieve than the usual criminal standard of being sure “beyond a reasonable doubt”.
Although one might think that NGN had a relatively easier task to achieve, it should not be forgotten that, when the truth defence is used, the burden rests on the publisher to prove that the allegations were true, rather than on the claimant (in this case, Depp) to show that they were false. This can give rise to further complications, as the success of a claim will regularly turn on the evidence in each individual case.
And when opposing accounts of what happened in private cannot be entirely ruled out, lawyers will struggle to persuade the court which version is more likely to be true. This is apparent in the position taken by Depp’s lawyers that “the claimant was not violent towards Ms Heard; it was she who was violent to him”.
Hence, media organisations may often be reluctant to defend libel actions and may opt for an out-of-court settlement to avoid the risk of high legal costs or damages. This was not the case with NGN, which nevertheless sought to prove true a very serious allegation. It succeeded, despite the challenges associated with this defence.
The case continues
The outcome was bitterly unfavourable to Depp, who arguably suffered a crushing defeat, with all that this might entail for his career. Moreover, his case has reportedly led to an estimated £5m in legal costs, and on top of that, he is likely to be made to cover a significant percentage of the winner’s legal costs.
The Sun, meanwhile, emerged victorious from a tense legal battle. The outcome may stiffen the resolve of the English press to report on matters of domestic violence, but it does not necessarily follow that the approach taken by the High Court in Depp’s trial is a uniform one in all cases.
The High Court’s decision doesn’t seem to spell the end of the legal battle. Depp’s representatives said they found the decision “as perverse as it is bewildering” and announced their intention to appeal. It will also be interesting to see whether the outcome in London can carry some weight and indirectly affect the libel rematch next May in the US against Heard herself over an opinion piece she wrote for Washington Post.
Dr Daragh Murray said: “Governments around the world are already using AI to help make important decisions that affect us all. This data-driven approach can offer key benefits, but it also relies on the ever-increasing collection of data on all aspects of our personal and public lives, representing both a step change in the information the state holds on us all, and a transformation in how that information is used.
“I want to look at the unintended consequences of this level of surveillance – the impact on how individuals develop their identity and how democratic society flourishes. Will a chilling effect emerge that changes individual behaviour? And what might the impact of this be? Will the knowledge that our activities are tracked and then translated into government decisions affect how we, for example, develop our sexual identity or our political opinions? Will we all be pushed towards the status quo in fear of the consequences of standing out?
“Ultimately what will the effect of this be on the well-being of our democracy?”
The Future Leaders Fellowships scheme is designed to establish the careers of world-class research and innovation leaders across the UK.
Dr Murray’s project will be interdisciplinary, working across human rights law, sociology and philosophy.
Dr Murray said: “We will be looking at lived experience in the context of wider discussions about how individuals and societies flourish. The intention is to re-imagine the human rights framework to address this very 21st century problem.”
The Fellows appoint mentors. In addition to Essex mentors Professor Lorna McGregor and Professor Pete Fussey, Dr Murray will benefit from the involvement of a stellar group of global experts: Professor Yuval Shany, from the Hebrew University of Jerusalem, is Vice-Chair of the United Nations Human Rights Committee, and Deputy President of the Israel Democracy Institute; Professor Ashley Deeks is a Research Professor of Law at University of Virginia Law School, Director of the School’s National Security Law Center and a member of the State Department’s Advisory Committee on International Law; Professor Alexa Koenig is Executive Director of University of California Berkeley’s Human Rights Center and sits on a number of national and international bodies looking at the impact of technology, as well as the board of advisors for ARCHER, a UC Berkeley-established non-profit that “leverages technology to make data-driven investigations accessible, smarter and more scalable.”
Launching the latest round of Future Leaders Fellowships, UK Research and Innovation Chief Executive, Professor Dame Ottoline Leyser, said: “Future Leaders Fellowships provide researchers and innovators with freedom and support to drive forward transformative new ideas and the opportunity to learn from peers right across the country.
“The fellows announced today illustrate how the UK continues to support and attract talented researchers and innovators across every discipline to our universities and businesses, with the potential to deliver change that can be felt across society and the economy.”
This story originally appeared on the University of Essex news webpage and is reproduced here with permission and thanks.
On 2 September 2020, the Information Commissioner’s Office (ICO), the United Kingdom’s independent body established to uphold information rights, formally issued its Age Appropriate Design Code of Practice which should be followed by online services to protect children’s privacy.
The Age Appropriate Design Code of Practice, the first of its kind, is a statutory code required under Section 123 of the Data Protection Act 2018 and aims to address the increasing “datafication” of children. The Code was first published on 12 August 2020 and, following completion of its parliamentary stages, it came into force on 2 September 2020. The Information Commissioner, Elizabeth Denham CBE, stated: “For all the benefits the digital economy can offer children, we are not currently creating a safe space for them to learn, explore and play. This statutory Code of Practice looks to change that, not by seeking to protect children from the digital world, but by protecting them within it.”
The Code’s primary focus is to set a benchmark for the appropriate protection of children’s personal data and provide default settings which ensure that children have the best possible access to online services whilst minimising data collection and use, by default. It sets out 15 standards on data collection and protection, and reflects a risk-based approach. Section 123(7) of the DPA 2018 defines “standards of age-appropriate design” as “such standards of age-appropriate design of such services as appear to the Commissioner to be desirable having regard to the best interests of children.” The 15 points of the Age Appropriate Design Code include a duty to conduct data protection impact assessments; transparency; policy and community standards; data sharing and minimisation; geolocation; parental controls; nudge techniques; and online tools, among others. For a brief overview of the standards laid out in the Code, see here. Due to the fact that different services will need to implement various technical solutions, the ICO acknowledges that these are not intended as technical standards, but as a bundle of technology-neutral design principles and practical privacy features.
These principles apply to any online products or services (including, for instance, educational websites, social media platforms, apps, online games, and connected toys with or without a screen) that process personal data and are likely to be used by children under 18 in the UK; therefore, they are not limited to services specifically aimed at children. The Code covers entities based in the UK as well as entities based outside of the UK if their services are provided to (or monitor) users based in the UK. Services provided on an indirect charging basis (for example, funded by advertising) also fall within its remit.
The ICO and the courts will take the Code into account in determining whether the GDPR and PECR requirements have been met for the purposes of enforcement action. Although the Code is now in effect, the industry has been given a 12-month implementation period to get up to speed and introduce suitable changes. After a year in force, the ICO will undertake a review of the Code and its effectiveness.
Dr. Antonio Coco, Lecturer in Law at the University of Essex, has co-drafted The Oxford Statement on International Law Protections Against Foreign Electoral Interference through Digital Means, which has been signed by 139 international lawyers so far.
The Statement is the third in a series — informally known as the “Oxford Process” — aiming to clarify the rules of international law applicable to cyber operations which threaten areas of pressing global concern.
The first Statement (May 2020) concerned the protection of the healthcare sector. The second Statement (July 2020) focused on the protection of vaccine research. The third and most recent one (October 2020) tackles foreign electoral interference, and can be read at EJIL:Talk!, Opinio Juris and JustSecurity.