Dive into a riveting conversation with Víctor Cázares as he unravels the intricate dance between history and law, exploring how constitutions are more than just texts—they’re powerful, sometimes violent, catalysts for societal change.
Discover the untold stories behind constitutional evolution as Víctor highlights the surprising connections between peacemaking and conflict and why history’s lessons are crucial for shaping the laws of tomorrow.
Be captivated by Víctor’s innovative approach of using music and film to illustrate the dynamic and often tumultuous world of legal history, showing how artistic mediums can bring new insights into academic research.
The podcast is hosted by Bernardo Carvalho De Mello, co-convenor of the Constitutionalism & Governance Research Group and PGR student at Newcastle Law School.
On December 29, 2023, the Republic of South Africa sued the International Court of Justice, bringing the State of Israel to the Hague Court over allegations of violations of the 1948 Convention for the Prevention and Suppression of the Crime of Genocide (hereinafter “Convention against Genocide” or “convention”). In short, South Africa initiates judicial proceedings to (a) verify that the actions committed by Israel in Gaza constitute violations of different obligations present in the convention and (b) obtain a decision in precautionary proceedings and immediately suspend Israel’s military actions in and against Gaza.
Knowing that proceedings before the Hague Court can take years, a request during the course of the conflict also aims to obtain a precautionary order to influence current events. This even seems to be a trend in recent years in terms of human rights. In this sense, it is possible to verify that the court was recently approached in two cases involving the same convention: the case of Ukraine v. Russia (2022) [1] and the case of Gambia v. Myanmar (2019) [2]. In both cases, the International Court issued precautionary orders demanding specific actions from the requested States to protect the rights present in the convention.
This text technically analyses the case filed by South Africa before the Hague Court in light of existing international rules and the court’s jurisprudence on the matter to clarify the meaning of this legal action for the conflict. Initially (1), it focuses on South Africa’s allegations, thus examining its initial petition. To this end, I will analyse the court’s jurisprudence on matters of genocide and precautionary measures (2) Seeking parallels with the current situation, I will speculate on the possible directions the court might pursue regarding the case.
(1) South Africa’s allegations and the court’s procedural requirements
In its application [3], South Africa argues that Israel is violating the Genocide Convention, among other allegations, by failing to act to prevent the carrying out of genocide, for conspiring to carry out a genocide and for preventing the investigation and punishment of genocide, in accordance with articles I, II, III, IV, V and VI of the convention [4]. According to the South African document, “The acts and omissions by Israel complained of by South Africa are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group, that being the part of the Palestinian group in the Gaza Strip (‘Palestinians in Gaza’).” Among the different sources it uses to support its arguments, South Africa uses statements from various countries and heads of state (including Brazil) to define genocide as noted in paragraph 12 of the petition [5]. However, if the case proceeds, each act will need to be analysed separately under the terms of the Genocide Convention to verify a violation, demanding a high evidentiary burden from both parties.
One might question the rationale behind South Africa’s decision to initiate the lawsuit and the procedural basis for its legitimacy in doing so. It could appear more straightforward for the State of Palestine to sue Israel, allowing both to directly address and counter each other’s claims.
Despite these considerations, the legal obligations present in the Genocide Convention are obligations of a unique nature in international law: obligations of an erga omnes parte nature. In other words, they are obligations owed to all other parties to the convention and, which it is the legal interests of all convention members to safeguard. As the court itself noted in 2022: “(…) such a common interest implies that the obligations in question are owed by any State application of the genocide convention (judgment) party to all the other States parties to the relevant convention; they are obligations erga omnes partes, in the sense that each State partyhas an interest in compliance with them in any given case”. In this way, if alleged convention violations are verified, any State that is a party to the convention — including the United Kingdom — would have the legitimacy to sue another State or even intervene in the procedure because it is a party to it and has interests in its interpretation.
South Africa’s request not only aims to discuss the convention’s obligations but also requires as a precautionary measure, that Israel carry out a series of acts. These include (1) that Israel suspends its military activities in and against Gaza (paragraph 144 n. 1); (2) that Israel guarantees that any military action or irregular military groups cease their activities (paragraph 144 n. 2); (3) that all measures available to the State of Israel to prevent genocide are taken (paragraph 144 n. 4 and 5) [6]. In other words, there is a clear intention on the part of South Africa to end the Israeli offensive without damaging the rights protected in the convention, therefore confirming the dual purpose of the action.
(2) The jurisprudence of the International Court on genocide and precautionary measures
Under Article IX of the Genocide Convention, the International Court of Justice is the judicial body responsible for resolving disputes involving its application and interpretation of the convention. The court has already issued a crucial advisory opinion detailing the importance of the convention and made several pronouncements on the nature of the obligations contained therein. Furthermore, two contentious cases have already reached the merits stage and obtained final decisions: the case of Bosnia v. Serbia (2007) [7], in which the court found that Serbia failed to prevent genocide carried out by militias on its territory, and the case Croatia v. Serbia (2015), in which the Court understood [8] that a genocide did not occur, despite the crucial dissenting vote by judge Antônio Augusto Cançado Trindade.
The lessons from previous cases demonstrate that one cannot lose sight of the fact that the times of international justice are as slow as those of domestic justice, and a case like this can even lead to a division within the court (composed of 15 judges from different nationalities, origins, and perceptions of international law). The South African petition is the beginning of a long process. In the two cases in which it finished judging allegations of violation of the convention, the International Court of Justice took more than ten years to issue a final decision, with several procedural incidents throughout the process.
This is because the legal configuration occurs when a particularly high evidentiary standard is reached. In addition to committing specific acts of violence against a national, ethnic, racial, or religious group, genocide as a legal figure requires a special will to eliminate, in whole or in part, the group in question, in accordance with Article II of the convention. As the court itself has established in the past, the intention to destroy a national, ethnic, racial, or religious group as such “is the essential characteristic of genocide, which distinguishes it from other serious crimes. It is regarded as a dolus specialis, that is to say a specific intent, which, in order for genocide to be established, must be present in addition to the intent required for each of the individual acts involved” [9].
In the Croatia v. Serbia decision in 2015, the International Court was particularly demanding when it came to verifying special intent. Consequently, the Court concluded that Croatia had failed to demonstrate and prove special intent, despite the acts committed being provided for in the convention, the volitional element of destruction of the group was missing, which could not be merely inferred from the acts. The case of Gambia v. Myanmar (2019), still without trial before the court, seems to contribute to the South Africa v Israel case; the fact that there are reports from a special fact-finding mission of the UN Human Rights Council that have already attested to the genocidal intent may be particularly relevant [10].
The South African strategy, however, appears to be in line with other recent cases before the court in which the convention was invoked that sought an interim order to cease violations of the convention on an urgent basis. In such situations, the Court is only required to demonstrate its initial jurisdiction (prima facie jurisdiction), the potential for harm, the urgency of the matter, and the plausibility of the violated rights. With these criteria met, the International Court can issue an order that demands less rigorous procedural standards than what would be needed to prove genocide. Specifically, it can mandate a party to refrain from actions that might breach the Genocide Convention, without the stringent requirement to prove genocide has occurred. In this sense, a relevant precedent also appears to be the case of Ukraine v. Russia (2022), wherein the provisional measures focus less on the need for genocidal intent but instead on the risk of violation of rights protected by the convention [11].
(3) What to expect from the proceedings before the International Court of Justice?
The South African action can also be read as an attempt to quickly obtain from the Hague Court an order to cease belligerent acts on the part of Israel. This judicial action has the potential to amplify international pressure, which is not only political but also legal in nature, to halt hostilities and bring the parties to the negotiation table.
Obviously, many procedural requirements need to be met, and the urgency of the case will lead to a series of complex legal arguments in the coming weeks in the Hague in an attempt to make the South African request successful. Suppose the court finds that it has jurisdiction over the dispute (something that is not always obvious in the court’s jurisprudence). In that case, it will begin a long process of discussing the existence or not of genocide and other violations of the convention.
Court proceedings can take several paths, and accurately predicting judicial behaviour in highly complex cases is not always fruitful. However, given the recent jurisprudence on the matter, some questions have emerged, and other situations can be conjectured.
The first question that arises involves Israel’s participation or not in the procedures, which tends to make all the difference in terms of defences and justifications. Israel would have the opportunity to present its procedural and substantial defences, such as contesting the court’s own jurisdiction and contesting the existence of a “controversy” between South Africa and Israel involving the convention. Another more complex issue involving the limits of self-defence in international law could also arise.
A second procedural question would be whether, in the present case, there will also be a tendency for intervention by third States, as happened in the cases of Ukraine v. Russia (2022) and Gambia v. Myanmar (2019). It is unclear which States will be willing to participate procedurally in the debate. Although one can imagine at least Palestinian participation in the procedures, it will be interesting to see which States will actually participate in the procedure and what arguments will be invoked, both in terms of alleging the existence of violations and maintaining the high evidentiary standard for configuring genocide.
While the seriousness of the situation in Gaza calls for international action, due legal process must be respected due to the severity of the accusations made. As mentioned, in the jurisprudence of the International Court, a State has never been effectively condemned for actively conducting a genocide.
The court is guided by the adversarial principle, and it can be assumed that a judicial institution, guided by praetorian impartiality and independence, does not wish to be perceived as endowed with predictions. This means that Israel’s participation and hearing of its arguments constitutes a fundamental point for the process before the court. Perhaps we can expect from the court something similar to previous cases: an order as a precautionary measure, that is, temporary for the duration of the process and seeking to safeguard the rights of pendent lite, ordering the abstention from acts that may harm the rights protected in the Convention against Genocide.
Although there are criticisms of the mobilisation of the International Court merely for precautionary purposes in cases involving human rights violations, this tendency to consolidate itself in the jurisprudence of the Hague — and the case of South Africa does not seem to be an exception. Furthermore, it is vital to have a judicial body that can decide or not on the existence of genocide, avoiding the appropriation of the expression by political speeches. If, in any way, it contributes to preventing the worsening of conflicts and ensuring that the rights of the parties are preserved, the International Court of Justice will be exercising its essential role as the main judicial body of the United Nations and, therefore, of the very protection of rights recognised by the United Nations and the international community.
1 International Court of Justice, 2024. Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening). Available at: https://www.icj-cij.org/case/182 [Accessed 25 January 2024].
2 International Court of Justice, 2019. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) [2019] ICJ Gen List No. 178. Available at: https://www.icj-cij.org/sites/default/files/case-related/178/178-20220722-jud-01-00-en.pdf [Accessed 22 February 2024].
3 International Court of Justice, 2023. Application Instituting Proceedings, Filed in the Registry of the Court on 28 December 2023. [online] Available at: https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf [Accessed 25 January 2024].
4 United Nations, n.d. Convention on the Prevention and Punishment of the Crime of Genocide. [pdf] Available at: https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf [Accessed 22 January 2024].
5 International Court of Justice, 2023. Application Instituting Proceedings, Filed in the Registry of the Court on 28 December 2023. [online] Available at: https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf [Accessed 25 January 2024].
6 International Court of Justice, 2023. Application Instituting Proceedings, Filed in the Registry of the Court on 28 December 2023. [online] Available at: https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf [Accessed 25 January 2024].
7 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) [1996] Available at: https://www.icj-cij.org/case/91 [Accessed 25 January 2024].
8 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) [2015] Available at: https://www.icj-cij.org/case/118 [Accessed 25 January 2024].
9 Ibid.
10 Human Rights Council, 2018. Report of the independent international fact-finding mission on Myanmar. A/HRC/39/64, 12 September. p.19
11 International Court of Justice, 2024. Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening). Available at: https://www.icj-cij.org/case/182 [Accessed 25 January 2024]
Bernardo Carvalho de Mello is a law PHD student at Newcastle University
Student editor-in-chief (NELR BLOG) – Thea Nord Berget
This text is interested in discussing Artificial Intelligence, not as a subject of policy and legislation, but as an active participant in legislative processes or political lobbying. Ultimately concluding that if AI fully ascends into politics, it needs to be heavily supervised with awareness and caution.
What could the future of AI within politics look like?
Bruce Schneier and Nathan E. Sanders outline six possible political milestones for AI. One of these milestones is the possibility of AI drafting legislation, and it being submitted under its name. One of the other milestones they predict is that AI could achieve a coordinated policy outcome across multiple jurisdictions. Some minor, inconsequential drafts for legislature have already been introduced in some US states, but these have been heavily edited by humans. An interesting milestone could be the potential acceptance of testimony on legislation, or a comment submitted to an agency entirely drafted by Artificial Intelligence. In other words, AI could become able to submit a draft for legislation that is considered to be legitimate. The second milestone was based on how even if AI does not have human desires or needs, it could be programmed to have a goal such as altering taxes or something of the sort, and actively participate in political lobbying. AI has many of the same tools that we do to achieve policy outcomes. It could for example advocate through promoting ideas through digital channels, it could lobby and direct ideas to policymakers, or it could write and propose legislation. There have also been attempts to create political actors powered by AI, such as the Danish Synthetic party – a party with AI as the lead policymaker, which was programmed on materials from several previous Danish ‘micro-‘parties to create proposals for the party’s policy proposals. It for example proposed that Denmark should, based on ancient Greek Democracy, hold a poll that would make it so that ministers are replaced by random citizens every month. The rationale behind this was most likely that the AI knows that many previous Danish micro-parties have sought direct democracy and are tired of representative democracy. Regardless, the synthetic party did not get enough votes to get a seat in parliament, but the idea behind the party inspired many worldwide. It was arguably a fascinating experiment, nonetheless. Ultimately, it is not unlikely that AI will be more significantly more present in politics, aiding at the very least in drafting policies or being used for advocating such policies through digital channels.
What are the potential issues with AI in politics?
It is argued here that the advancements of AI being more present in politics is not entirely unproblematic. In terms of politics, it is here believed that we should be extra cautious about using AI without constraint, to make sure we are holding our legislators to the standards they should be held to. Most of politics is about governing human citizens, and so human citizens should be responsible for it and AI should not assume a politician’s or legislator’s job. Being a politician is arguably a job that is supposed to be challenging. Perhaps AI can help bureaucratic processes and streamline administrative tasks that normally take a substantial amount of time and resources, but this does not mean AI should have a hand in drafting legislation or policy or be accepted as a legitimate source of such drafts. It is argued here that politics require a certain humanity, and this should be maintained. Currently, there are legislative and policy endeavours undertaken to regulate AI. Such as the first legislation regulating AI that is being proposed in the European Union. According to the AI Act, unacceptable risk AI systems that can be considered a threat would be banned. This would include any model that has to do with cognitive behavioural manipulation of people or specific vulnerable groups, such for example voice-activated children’s toys that encourage dangerous behaviors or social scoring models that classify people based on behaviours, socio-economic status, or personal characteristics. Other ‘high risk’ models that are not completely unacceptable must be registered in an EU database. Such as education and vocational training; management of critical infrastructure; law enforcement; migration, asylum, and border control management; or assistance in legal interpretation and application of the law. As well as this, general purpose models, such as ChatGPT would have to comply with transparency requirements disclosing that everything created by it is created by AI. This Act has been accepted by Parliament and the European Council in a provisional agreement and will very likely become official legislation in the near future.
Some worry that AI is a negative influence on politics, whilst others argue that it can only improve human existence on all levels, including within politics. In my opinion, both could be true, and it is a nuanced issue. Zoltan Istvan, a previous US presidential candidate, is a huge advocate for the advancements of AI and talks about how AI is currently only useful for very basic tasks, but that it advances rapidly, doubling its capacity every two years or so. It is argued by Verdict, that if AI lead our governments, we would be able to trust them to do the right thing. However, there are ethical issues with the notion that AI is an objective, unbiased tool for streamlining political tasks. Purely philosophically, who determines what is the ‘right thing to do?’ Judging by whose morality would the AI be programmed? Considering moral relativism and the notion that humans are incapable of being unbiased, AI could potentially not be able to determine a universal morality to act according to in policy decision-making. In terms of processes that require machinery and algorithms, it is probably entirely fair to say that AI can be better or more efficient than us, but it could be considered unrealistic to comment that AI can create objective truth or be unbiased, because it will always be programmed by humans who cannot be. In my opinion, AI is a tool that can be used to make tasks that require organisation, planning, or distribution of political materials, etc., more efficient. However, it should not replace the human politicians behind the foundational ideas for political campaigns, policies, legislation, lobbying, etc.
Further issues with AI taking a significant role in politics could be that it is becoming entirely too easy to falsify information. Some commentators, such as Robert Chesney, argues that the decline of trust in traditional media and the increase of communications and information delivered across social media platforms along with the increasing believability of AI such as deepfakes, can create an increase of misinformation in terms of politics. For example, technologies that alter images or spread misinformation can be used disproportionately to harm vulnerable populations such as women, LGBTQI+, or POC that are running for office. According to the Council of Foreign Affairs, a report from the Centre for Democracy and Technology found that these groups are more likely to be targeted negatively by misinformation campaigns. Furthermore, the increase of AI in politics could provide politicians with a method of refuting accountability for lies or scandals. As the use of fake images increase, any problematic soundbite or video a political person is involved could be claimed to be AI and misconstrued, thereby denying blame. ‘A get-out-of-jail freecard.’
Conclusion
AI continues to fascinate many of us but let us keep in mind that at the end of the day, humans are involved in programming and supervising AI – ethical considerations arguably need to always be at the forefront of any developments within AI. AI is significantly interesting as an immensely fascinating development in evolution and the history of humankind. However, in terms of politics, a lot of people might prefer policies and politicians to reflect humanity and human interests. Though AI can help with minor administrative tasks and ‘busy work’, it should not replace or render less important, the humanity it takes to govern humanity. It is not unwise to be wary of how AI may be misused, for instance by misinformation – this is not AI’s fault, but people potentially seeking to profit or fulfil ulterior motives using AI. Overall, it will continue to be exciting to follow AI’s development in politics, and the most important argument here is that AI must continue to be regulated according to strict ethical considerations.
Thea Nord Berget is an undergraduate student studying law at Newcastle University.
The 2021 Chilean Constitutional Convention was created after a wave of protests in 2019, where thousands of people took to the streets, resulting in 23 deaths. The popular mobilisation for better living conditions only ended when then-president Sebastián Piñera reached an agreement that allowed the 2020 plebiscite to be held on a new constitutional process. At the time, 80% of Chileans voted for a new Constitution. The new Charter would substitute the current 1980 Constitution, drafted and enacted during the harsh military dictatorship headed by Augusto Pinochet.
Among the constituents were many leaders who did not participate in conventional political debate. One of the most famous examples is that of Giovanna Jazmín Grandón Caro, known as Tía Pikachu. She gained popularity during the 2019 protests for wearing a famous Pokémon cartoon character costume. A big surprise in the formation of the constituent convention was the 48 out of 155 parliamentarians elected to draft the new constitution who presented themselves independent of political parties, Tía Pikachu being one of them. This wing of constituents channelled popular desires for more social rights during in the text. The inclusivity factor was further exemplified by having had 17 reserved seats for indigenous peoples (elected in a parallel ballot) and six constituents who were members of the LGTBI+ community.
Innovations
One of the significant changes in the new text is that Chile was defined as a social democratic state governed by the rule of law. It may seem like subtle wordplay, but it demonstrated that the State would not have a subsidiary role, instead being responsible for reducing inequalities and promoting social rights.
The Constitution also stated that Chile would be a parity state and that 50% of positions in government bodies and public companies must therefore be held by women. Furthermore, it defined the Chilean State as plurinational — which recognises indigenous populations with land demarcation, political representation and administrative autonomy —intercultural and regional.
Another impactful change proposed by the new constitutional text was the creation of a public health, education, and social security system. It also establishes the guarantee of rights such as decent work and housing, in addition to “equitable, fair and efficient remuneration“.
Environment
The new Constitution paid particular attention to the environment. The plebiscite was held amid a heavy water crisis, and the current Constitution and the Water Code of 1981 created conditions for a kind of environmental market. The proposed Constitution included words that did not exist previously, such as guaranteeing and promoting rights. In environmental matters, there were also determinations for conserving the environment. Animals also become holders of rights as they are sentient beings. Water use becomes a fundamental human right, and its priority use becomes human consumption. Had it been approved; the new Constitution would break the private monopoly on water use in Chile.
A ‘Public defender of nature’ would also be created, whose mission was to preserve the environment in cases where action or omission by public or private bodies occurs to the detriment of the environment. The Justice system and its jurisdictional bodies would also have the duty to protect human and natural rights. It would be a move from an anthropocentric, market-based vision of the environment to one more aligned with human rights, elevating nature itself to an entity that holds rights.
Indigenous rights
In contrast to the current Constitution, the new text recognised 11 ethnicities and indigenous nations: Mapuche, Aymara, Rapa Nui, Lickanantay, Quechua, Colla, Diaguita, Chango, Kawashkar, Yaghan and Selk’nam.
It also recognised indigenous peoples as autonomous communities, with the validation of their languages, symbols, and educational institutions. The limit of autonomy, however, was the non-violation of the “unique and indivisible” character of the State of Chile and Chilean laws.
The new Charter validated the right of indigenous people to maintain their health practices and use their traditional medicines.
Work and Retirement pensions
Concerning labour legislation, the new text established the freedom of union organisation and the worker’s freedom of choice to join a union. As well as this, the very definition of ‘work’ would change, through defining what a fair wage should be, as well as validating the right to work remotely where applicable, and the right to strike for every worker. Another revolutionary aspect was salary parity, which determined that all professionals, men and women of any sexual orientation or gender identity, must be paid equally for equal work.
Furthermore, the proposed constitution would create a public pension system, improving the financial situations of retirees.
Significantly, the new text would have been the first constitution to enshrine access to abortion as a right. Beyond this, article 61 would guarantee the free exercise of sexual and reproductive rights without discrimination.
Article 61 of the Proposed Constitution, brought about by a grassroots feminist movement that obtained 15 thousand signatures, stated that the State would guarantee the exercise of sexual and reproductive rights without discrimination. It would be “with a focus on gender, inclusion and cultural relevance, as well as access to information, education, health and the services and benefits necessary for this, ensuring for all women and people capable of generating conditions for a pregnancy, a voluntary interruption of pregnancy voluntary and protected pregnancy, childbirth and motherhood”.
In 1990 Chile was a country far behind in civil rights. Ultraconservative groups such as Opus Dei had a strong influence on the Catholic population. When in 2017, the discredit in institutions was already felt, and the Church seemed weakened after the paedophilia scandals, Chile approved the decriminalisation of abortion in cases of danger to the mother’s life, foetal malformation, and rape.
Where did it all go wrong?
We must ask ourselves, why was this progressive text rejected by the population in the 2022 plebiscite? How come the same population that one year prior approved the writing of a new constitution with a 78.27% majority could now reject it by a margin of 62% to 38%?
While it is almost impossible to identify one single factor in such a major political event, some lessons can be drawn from the process. The “rechazo” (rejection) was a winner in all regions of Chile. Only in eight of 346 municipalities was a majority in favour of the constitutional proposal. The main message of the result is that the text prepared by the Constituent Assembly was not able to convince voters from the centre and part of the centre left.
Errors in the constituency process can be cited as negligence among independent constituents, which made the Assembly look bad among the population. Among the most striking cases is that of a member who pretended to have cancer or another who voted on a proposal while in the shower. Furthermore, the number and scope of fake news disseminated were abhorrent (something that, unfortunately, seems like the rule in all democratic processes in the world).
The discussion of such impactful and complex issues ended up being polarised and contaminated by a series of false news disseminated by groups contrary to the new constitutional text and its supporters. Resistance to change came from a portion of society concerned about the economic impact of the new provisions and from Catholic and evangelical groups who disagreed on the moral aspects.
One of the biggest pieces of misinformation was that it was necessary to reject this constitutional text so that another one could be formulated. Fake news disseminators alleged that it would be necessary to elect a new constituent. However, a new constituent process was not provided anywhere.
Another lie is that the Mapuche people would be able to sell part of Chilean territory to Argentina. This patriotic component in the debate on the new Constitution is not necessarily linked to the country’s economic elite, gaining much reach among ordinary citizens.
Another much-debated argument is that the new Magna Carta represented a copy of the Bolivian Constitution. In a xenophobic, racist and classicist fashion, part of Chile’s population identified Bolivia as an undeveloped country, linking this negative stereotype to how they observed the new Constitution.
Conclusion – hopeful remarks
In summary, while the drafting process marked a historic innovation for the Chilean government, the primary factor contributing to the failure of the proposed constitution was the pervasive presence of fake news and misinformation.
All this does not necessarily mean a glum future for this innovative and progressive Constitution to be approved by the Chilean population.
The process itself was innovative: it featured equal gender composition, mass participation of independent representatives, seats reserved for indigenous people, popular participation mechanisms and sessions outside the capital – to name just a few.
Nevertheless, as recognised by several experts in the field, the most revolutionary point of the process was gender parity, which led 77 women from the most varied professions to debate in the same spaces historically occupied by men. For comparison purposes, Chile’s Chamber of Deputies (lower legislative house) in 2022 had the highest number of women in its history, with just 55 of the 155 representatives, or 35% of the total.
It was the first draft of a new Constitution in which women participated on par in the history of the world. That, in itself, is a gigantic victory and signals progress in the future for Chile and the region.
BERNARDO CARVALHO DE MELLO IS A LAW PHD STUDENT AT NEWCASTLE UNIVERSITY.
Student Editor-in-Chief (NELR Blog) – Thea Nord Berget
‘New EU & UK Rules for Regulating Competition in Digital Markets’
The North East Law Review is a law journal edited by students and members of staff at the Newcastle Law School. We publish contributions of the UK and EU undergraduate and postgraduate students.
The 2023/24 Special Issue of the Journal is dedicated to legal analysis of EU Digital Markets Act and/or UK Digital Markets, Competition and Consumers Bill/Act. Papers scrutinising any aspect of these emerging legal regimes separately – or preferably comparing them – are welcome.
Articles are expected to be up to 10,000 words (including footnotes) and essays up to 5,000 words (including footnotes).
Students are encouraged to consult their lecturers in case they intend to propose for publication a paper which was also submitted for assessment within their relevant undergraduate or postgraduate UK/EU University modules or are part of their dissertations or theses.
All submissions should be sent as Word Document to nelr@newcastle.ac.uk. The papers will be reviewed by the members of the Editorial Board and academic editors. Those selected for publication will be provided with the necessary feedback, comments and the North East Law Review Style Guide.
The closing date for submitting the papers is 3rd February 2024.
Please send all your queries and submissions to nelr@newcastle.ac.uk
Student Editor in Chief Eleanor Clayton
Academic Guest Editor of the Special Issue Prof. Oles Andriychuk
Women’s reproductive rights have always been a disputed and controversial theme. However, recent developments have shown that the issue is more contested than before in our highly politically and legally polarised world. Two critical cases demonstrate how this human rights subject is currently a hot topic and exemplify a trend in an erosion of women’s rights.
The overturn of Roe v. Wade reignited the debate on abortion in the world, anticipating a possible moralist and conservative trend that, similarly to what happened in the 1970s when it was first brought before the US Supreme Court but in the opposite direction, will reverberate in other countries, now implying a broader restriction of women’s human rights.
The Beatriz v. El Salvador case showcases how the issue surrounding the legal prohibition of abortion leads it to be practised clandestinely and in an unsafe manner or at high costs. Therefore, the core of the problem lies in the fact that prohibition mainly affects and controls the bodies of poor, black, Latino women with less education and more unfavourable living conditions, further increasing social inequality.
An intersectional view of the controversy appears to be the way to analyse these factors in a way that recognises abortion not as a crime but as part of the universal human right to health and life and by affirming the complexities that arise when multiple factors of marginalisation impact on women’s access to healthcare and reproductive rights.
The Overturning of Roe V. Wade
On the 24th of June of 2022, The United States overturned the landmark 1973 case of Roe v. Wade, which legalised abortion in the US, raising significant concerns and warranting a critical examination of its potential consequences. Such a reversal has far-reaching implications for women’s reproductive rights and bodily autonomy.
The overturning of Roe v. Wade effectively hands the power to regulate abortion back to individual states, leading to a patchwork of varying laws and restrictions across the country. This disproportionately impacts marginalised communities, who may face limited access to reproductive healthcare services due to geographic, economic, or social barriers. In addition, women’s autonomy is undermined as their ability to make decisions about their own bodies and futures is eroded.
Additionally, the overturning of Roe v. Wade does not eliminate the demand for abortion; rather, it pushes many women towards unsafe and illegal procedures, risking their health and lives. History has shown that restricting access to abortion does not reduce the occurrence of abortions but instead drives them underground, perpetuating a cycle of unsafe practices.
Moreover, it reflects a broader erosion of the principles of gender equality and bodily autonomy. It sends a troubling message that women’s rights to make choices about their own reproductive health are not considered fundamental and deserving of protection.
Beatriz V. El Salvador
The Beatriz vs El Salvador case presents a significant challenge to the Inter-American Court of Human Rights, exposing the complex dynamics at the intersection of human rights and reproductive justice.
In summary, Beatriz (an alias used to protect her real name) became pregnant for the first time in July 2011. However, her pregnancy was high-risk due to a series of diseases she had: systemic lupus erythematosus, lupus nephropathy, and rheumatoid arthritis.
She was hospitalised several times and experienced anaemia, exacerbation of lupus symptoms, and pre-eclampsia. She almost died during labour, and her child had to stay in the hospital for over 30 days until being discharged.
Beatriz became pregnant a second time in February 2013, again a high-risk pregnancy. Except for one thing: on the 7th of March, 2013, she received the news that the foetus had anencephaly, a condition incompatible with life outside the womb. At the same time, she was also warned that continuing the pregnancy posed a risk to her own life.
Even though abortion is illegal without any exception in El Salvador, she filed a request for an abortion due to severe risk to her life, initially recognised by the Constitutional Chamber but later reversed by the same Court because they considered that there was no “omissive conduct” on the part of the authorities that would endanger Beatriz’s rights to life and health. On the 3rd of June, she gave birth to the baby, who died 5 hours later. In 2017, after a car accident, she died partly due to the ongoing deterioration of her health conditions exacerbated by her pregnancies.
Faced with the denial that Beatriz’s request for an abortion was a clear violation of her human rights, civil society groups decided to bring the case to the IACHR. They call for justice for Beatriz’s memory and compensatory damages for her family. Additionally, they demand non-repetition measures such as a change in El Salvador’s Penal Code.
While it is pending judgment, the Inter-American Court of Human Rights has a unique opportunity to affirm the principle of reproductive autonomy and recognise the right to access safe and legal abortion when a woman’s life is at risk. By failing to do so, the Court would miss a chance to set a precedent for safeguarding women’s rights in cases where pregnancy endangers their lives, ultimately perpetuating gender-based discrimination and infringing upon individual autonomy in a region where these issues are everyday occurrences.
The Beatriz case highlights the detrimental consequences of restrictive abortion laws on reproductive justice. El Salvador’s absolute criminalisation of abortion denies women the right to make decisions about their own bodies and endangers their health and lives. The court’s decision is an excellent opportunity to address the systemic injustices and social inequalities perpetuated by such laws, further marginalising vulnerable women and perpetuating a cycle of discrimination.
Moreover, the Beatriz case underscores the importance of international human rights standards in shaping domestic laws and policies. International bodies such as the IACHR must play a proactive role in upholding human rights and pressuring governments to reform laws restricting women’s access to safe and legal abortion, ensuring the protection of their fundamental rights.
The Beatriz case also sheds light on the importance of ensuring access to comprehensive healthcare services, including safe and legal abortion. Denying women access to the complete range of reproductive healthcare options compromises their overall well-being and autonomy. El Salvador’s Constitutional Chamber’s decision to deny Beatriz an abortion perpetuates unequal access to healthcare services and exacerbates existing disparities in health outcomes, particularly for marginalised communities.
It should be stressed that the Beatriz case prompts reflection on the role of legal frameworks and the potential for judicial activism in advancing reproductive justice. The court has the opportunity to interpret existing laws in a way that aligns with evolving societal values and international human rights standards. In addition, the Inter-American Court of Human Rights has a chance to proactively shape legal frameworks to better protect women’s rights and promote social progress.
Intersectionality and the cases
What do both these cases have in common? First, they highlight how, even in 2023, we are still debating the recognition of a fundamental human right. More than the abortion issue itself, Roe v. Wade and Beatriz v. El Salvador show that reproductive rights emphasise the intersection of multiple factors of marginalisation.
The struggle for reproductive rights has been a longstanding battle for women worldwide. However, when examining this issue through the lens of intersectionality,[1] it becomes evident that the fight for reproductive autonomy is far from uniform.
What’s more, intersectionality introduces the reproductive justice concept, expanding the traditional reproductive rights framework. Reproductive justice stresses the need to consider not only the right to access contraception and safe abortions but also the broader socio-economic, cultural, and environmental conditions necessary for individuals to make reproductive decisions free from coercion and discrimination. It acknowledges that marginalised communities encounter intersecting oppressions that limit their agency in reproductive matters. By adopting a reproductive justice framework, we can address the intersecting concerns of poverty, racism, ableism, and other forms of discrimination that disproportionately impact marginalised individuals.
The impact of intersectionality on reproductive rights is most palpable when examining access to reproductive healthcare. Privileged individuals often enjoy greater access to comprehensive reproductive healthcare, while marginalised groups face significant barriers. For example, women from low-income backgrounds often struggle to access affordable contraception, prenatal care, and adequate maternal healthcare. This inequality is compounded when considering the experiences of transgender and gender-nonconforming individuals, who face additional challenges such as discrimination, limited healthcare providers, and inadequate reproductive healthcare options. Intersectionality illuminates these disparities, underlining the need for inclusive policies that address the unique needs of marginalised communities.
Intersectionality also plays a crucial role in legal battles surrounding reproductive rights. Court cases and legislation focusing solely on gender-based discrimination may inadvertently ignore the specific challenges individuals face at the intersections of multiple identities. For instance, laws restricting reproductive autonomy may disproportionately affect low-income women of colour or individuals with disabilities. In addition, intersectional perspectives provide a more comprehensive understanding of the diverse barriers faced by different communities, urging lawmakers and activists to adopt an inclusive approach that upholds the rights of all individuals.
Conclusion
In sum, the fight for reproductive justice and fundamental human rights regarding abortion and comprehensive women’s healthcare is controversial in the political, legal and, more broadly, social arenas.
Scepticism regarding the substantial effects of international human rights court judgments stems from concerns about the ability to enforce and effectively implement these judgments consistently and meaningfully across different countries and legal systems due to factors such as non-compliance by states, political resistance, resource constraints, and cultural relativism.
Nevertheless, Roe v. Wade and Beatriz v. El Salvador illustrate how the judicial system does have the power to make critical changes in society and how we, as legal scholars, can advance the human rights debate and contribute to societal change. And as both cases illustrate, the backlash against women’s rights is a current and dangerous trend that needs special attention from all sectors of society, especially the legal and social activism fields.
Footnotes
[1] Intersectionality is a concept that recognises and explores the interplay of social identities, such as race, gender, class, sexuality, disability, and others, and how they intersect to create situations of oppression or privilege. It understands that these social categories do not exist independently but interact and overlap, creating unique and complex experiences for individuals and groups with multiple marginalised identities. Its main goal is to create a comprehensive and inclusive approach to social justice.
Intersectionality was first coined by legal scholar Kimberlé Crenshaw in 1989 in her groundbreaking article “Demarginalising the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics.” Crenshaw underlined the shortcomings of mainstream feminist and civil rights frameworks, which did not adequately address the unique experiences of Black women who encountered discrimination at the intersection of multiple identities.
Since then, intersectionality has gained prominence across various academic disciplines, activism, and social justice movements. The ongoing scholarship and activism movement are also expanding the scope of intersectionality beyond the categories of gender and race, including other intersecting social identities and power dynamics that are current in social debate (such as LGBTQIA+ gender performance and identity, mental and physical disability, nationality and language). Moreover, it has been applied to various contexts, such as law, sociology, and political science, to assess the complex ways in which intersecting identities influence social, economic, and political outcomes.
Bernardo Carvalho De mello is a law phd student at newcastle university.
The UK market is among the dominant players in continental Europe, rivalled by Germany as an economic powerhouse. The high ranking is dependent on several factors, the most prevalent means of indication worldwide has been in terms of economic standing denoted by the Gross Domestic Product. These economic indicators are key to informing investors on the state of a market for analysis and discovery of opportunities. The UK market, with a GDP of 2.2 trillion British pounds, emerged as the world’s fifth largest economy and thus a key player too big for investors to ignore. The UK is also the second-largest centre for asset management and pioneers of sustainable and responsible investing.
The Walker Review and Creation of the Financial Reporting Council
Following the recommendations of the Walker Review on the effectiveness of corporate governance in the UK after the global financial crisis of 2008, among them was the formulation of a Stewardship Code aimed at making management more accountable to institutional investors and the formation of the Financial Reporting Council (FRC). Promoting transparency and integrity in business, the FRC’s mandate was to regulate auditors, accountants and actuaries, and set the UK’s Corporate Governance and Stewardship Codes. The FRC is responsible for the oversight, monitoring, and continued development of the Stewardship Code. The 2020 Stewardship Code (henceforth Code), a most recent publication of the Stewardship Code by the FRC, is seminal as it makes explicit reference to the environmental, social and governance factors (ESG). Furthermore, signatories are required to exercise stewardship in the exercise of their duties and report annually on their application of the Code.
Stewardship and the Code
The aftermath of the publication of the report’s findings and recommendations saw scathing remarks reflective of scepticism from the financial crisis which termed the report to be meagre suggestions or minor tweaks in the already existing sector and a knee-jerk reaction to the economic fallout. Amid this, the FRC took up the recommendations and the outcome was a Stewardship Code embodying the report’s findings. The 2010 Stewardship Code and its successors have set stewardship standards worldwide for those investing money on behalf of the UK populace, the Stewardship Code 2020 went further to include in the scope those that support the organisations investing money for the populace.
The FRC terms the Code as a ‘high standards’ guide for those investing on behalf of the populace and defines stewardship as the responsible allocation, management and oversight of capital to create long-term value for clients and beneficiaries leading to sustainable benefits for the economy, the environment and society. The FRC has been keen to produce reviews on the uptake of the Code’s provision over the two years since its publication. The reviews released have provided guidance on the FRC’s expectations on reporting by the organizations centred on: engagement, and exercising rights and responsibilities; setting expectations monitoring and holding to account third-party managers.
Apply-Explain and Becoming a Signatory
The Walker review had recommended the apply-explain reporting of the Code by signatories which was taken up by the FRC and has been a defining part of the Stewardship Code. The Code is principle-based where the intending signatories explain how they have applied it across any 12-month period prior to reporting. The process involves the signatory submitting a stewardship report to the FRC, subsequently, an assessment is done by the FRC to determine whether the report meets the stipulations of the Code. Once approved the reports are to be made public by the organisations in their own domains easily accessible to the public. However, the FRC has also published these reports in their website to ensure that they are far-reaching to a prospective audience. This ‘application’ process is to be done by the organizations in the consequent years once approved as a signatory in a form of renewing manner. The Stewardship reporting is ideally geared towards ensuring that assets entrusted to investors are managed responsibly and offer a demonstration on how they protect the assets throughout the year.
Since the Code’s first publication in 2020, there has been two reporting periods which has seen a considerable amount of uptake by industry players in the market. First signatories to the Code were published by the FRC in September 2021 where 189 apply-explain compliance reports were assessed with 125 reports being deemed satisfactory. These organizations spread across various asset classes and markets controlled an asset value of about £20 trillion. The year 2022 saw an uptake in the number of signatories and the asset value, the number increased to 235 organisations and doubling of asset value to £40.7 trillion respectively, where there was transparency as to the purpose and approach towards stewardship. The next deadline for an application to be a signatory is in April 2023 with a further date scheduled in October 2023 reserved only for renewal applications.
As per the increase in organisation compliance to the Code, the probability of there being more submissions than previous years is high even though there has been a period of economic turmoil since. Ideally, this would grant the FRC respite as it embarks on the review process of the Code. Unlike its predecessors, the Code has: seen information reach the wider public; made stewardship expectations clearer; applied to a wide range of asset classes; and places greater focus on stewardship activities and outcomes.
Inclusion of Environmental, Social and Governance Factors & Outcome Reporting: Setting the Standard?
Having an all-new definition of stewardship and the inclusion of ESG factors, this is a first across the various stewardship Codes proliferating the world since the UK published the 2010 Stewardship Code, which has been regarded as a measure of effectiveness. The Code is voluntary and sets a standard that is higher than the minimum UK regulatory requirements thus organisations and various industry stakeholders holding numerous discussions as to the validity of including ESG factors need to keep in mind that stewardship is key and affects a wider system of market regulation and supervision.
The Code is based on 12 principles for asset owners and asset managers ranging across key components of purpose and governance, investment approach, engagement, and exercising rights and responsibilities with six separate principles for service providers supporting them. These principles are to be applied concurrently with the UK Corporate Governance Code with a view of ensuring high quality reporting and accountability in investment and governance decisions are maintained. The Code makes recognition of the fact that signatories differ by size, type, business model and investment approach. Therefore, the reporting expectations do not require disclosure of stewardship activities on a fund-by-fund basis or for each investment strategy. This should not be construed to be some form of laxity by the code as it explicitly states that the information provided should be clear and offer a detailed outlook of their operations.
Steering from its predecessors where policy disclosures were at the forefront, outcome reporting is core to the Code as each principle is followed by an explicit indication for the need of disclosure of the outcome in its application by the signatories. The Code also not only focuses on listed equity and has encompassed a wider range of asset classes including but not limited to fixed income bonds, real estate and infrastructure. In 2022 the FRC saw an increase in reporting of asset classes outside of listed equity which is a show of organisational purpose and transparency.
Forging Ahead
The Kingman Review recommended the replacement of the FRC with a new independent regulator. Recent developments acted upon from the recommendation has seen the start of a transition process of the FRC to the Audit, Reporting and Governance Authority (ARGA) with the aim of maintaining both the Code and the corporate governance Code core as to how UK entities are run. Perhaps the review will be another publication of the code, as previous reviews have offered valuable insights towards the development of the code.
Historical trends have provided an outlook where market falls have tended to happen around every five to ten years, although there lacks a definitive manner of predicting when these falls may happen or when they’ll rebound. The UK has recently faced the cost-of-living crisis, tightening of financial conditions as Russia’s invasion on Ukraine had a ripple effect to the global economy and an energy crisis, amid the lingering covid-19 recovery and threat of resurgence, all these coupled have weighed heavily on its economic outlook. Considering these economic hardships and uncertainty, investor stewardship should be at the forefront towards the creation of a stable functioning market ensuring focus is directed towards the development of long-term sustainable organizational values in line with both economic and social needs. Organisations which embody the principles of the Code with an aim of demonstrating effective stewardship and governance foster trust key to the development of the economy.
It is well acknowledged that the digital age has transformed the way people express and connect, but it has also undeniably affected the dynamics of power. The so-called algorithmic society has affected how people exercise their liberties and at the same time has intensified the economic and political power of Big Tech companies. These have become actors that exercise public authority and private ordering, far beyond their façade of mere market participants. With this perspective in mind, Giovanni De Gregorio has introduced the first comprehensive study of the emerging yet highly relevant field of Digital Constitutionalism in his book Digital Constitutionalism in Europe, published by Cambridge University Press in 2022 and made available Open Access.
But what does it all mean? How is constitutional law relevant in the digital environment? De Gregorio stresses that, by imposing limitations and regulating their internal infrastructures, these companies compete with public authorities to determine, shape, and manage users’ rights and freedoms — and in some cases they may succeed in imposing their private values over the State’s constitutional mandate. While some may still find it hard to conceive private actors as entities exercising public authority, especially in the digital context, De Gregorio provides a detailed explanation of how constitutional law serves a remedy for the abuse of power from Big Tech corporations. De Gregorio does not only succeed in clearly presenting his research in terms of methodology, but also in introducing Digital Constitutionalism as the comprehensive framework for safeguarding rights in the digital age.
Digital Constitutionalism in Europe explains how digital platforms have amassed their power, transforming themselves into de facto authorities that delimit users’ rights and enforce public policies outside the apparatus of the State. On top of that, the book clearly allows the reader to make sense of how these platforms have also several functions unique to their architecture and dynamics, this is what De Gregorio refers to as “quasi-public powers online” (p. 95). When a user enters into an agreement with a digital platform, the Terms of Service (ToS) are far more than a simple instrument of contract law, these are factual instruments of vertical regulation that serve as a means for the exercising of authority over the users. This takes place, again, in the context of opacity, lack of participation and with no mechanisms that explain how and why they take these decisions. What can public law do? Is not this all governed by contract law?
In order to explain the role of constitutional law, in chapter 4 De Gregorio elaborates on the intersection between content and data in the algorithmic society. While these two regimes have been originally conceived of as separate tracks, De Gregorio proves that the two overlap more often than not. He provides solid examples that show how the two are intertwined, such as the case of search engines and social media. De Gregorio does not only demonstrate how the two legal regimes are connected with each other but also highlights how inconvenient it is for courts to apply a rigid separation between the two systems.
Then, in chapter 5, he explores in-depth Freedom of Expression in the context of European Digital Constitutionalism, a foundational right for any democratic society. This right, however, has been subject to major challenges in the context of digital technologies. This is mostly exemplified by the private enforcement of content moderation practices by digital platforms, and the imposing of corporate interests over public values. De Gregorio conveys that Digital Constitutionalism has found its way to counter the discretionary mechanisms of these companies. This is reflected across specific normative instruments in the European Union, such as the Directive of Copyright in the Digital Single Market, or the Regulation of Terrorist Content. But this regulatory framework is not focused on content regulation, it rather establishes procedural safeguards to foster more transparent and accountable mechanisms. This is a major example of how constitutional principles are of relevance in safeguarding digital spaces.
Then De Gregorio in chapter 6 provides an explanation of the evolution of privacy and how private data fuels the algorithmic society. In this regard, the role of European Digital Constitutionalism is not restricted to a traditional interpretation of the General Data Protection Regulation (GDPR). In fact, De Gregorio explains that it is necessary to look at this instrument with a new teleological perspective, not only focussing on the obligations it imposes but also looking at it as a catalyst of positive responsibility to intervene at the horizontal level towards the protection of human dignity.
In the last chapter, De Gregorio illustrates the possible futures of European Digital Constitutionalism. He first points out that, while not closing its doors to digital capitalism, Europe embraces digital humanism. In this regard, European Digital Constitutionalism serves as a means to balance market development concerns and the protection of human dignity and democratic values. He then analyses the contrast between public and private ordering. De Gregorio explains that, in the middle of the two poles represented by the Chinese and American models, Europe is fostering a co-regulatory approach, laying out the public values which set the framework within which the private sector operates. Lastly, he answers the question “how far could Digital European Constitutionalism extend its influence to protect fundamental rights?”. It is clear — De Gregorio maintains — that the Union does not have the intention to promote its industry, but rather it is concerned with rising as a global standard-maker. This is evident, for instance, in the influence that the GDPR has attained outside Europe.
Although it is not expressly mentioned in his book, De Gregorio’s findings resonate with the distinction that permeates until today between the continental and common law traditions: the role of the State. This is distinctly evident in the context of American Law, where commodification and market efficiency play a major role in the legal system, and therefore the role of the State is conceived of differently from the one in continental law. As Katharina Pistor explains (The Code of Capital, Princeton University Press, 2019), the institution of property that emerged in Britain was originally limited and restricted; it was not until the fall of the Middle Ages that property started to be regarded as a complete right with formal titles. This was the concept that arrived to Britain’s North American colonies. This explains why, for instance, the legal narrative of property and the lack of State intervention play out so strongly in the American legal system. In this regard, the American legal landscape privileges property, freedom, innovation, and wealth, whereas Europe leans towards the protection of human dignity and safeguarding of fundamental rights.
It is to be noted that De Gregorio’s Digital Constitutionalism in Europe is a work worthy of recognition and dissemination, precisely because it superbly presents Digital Constitutionalism as a comprehensive methodology to analyse rights in the algorithmic society. As opposed to presenting a stand-alone proposal for reform or a specific amendment to the EU legal system, De Gregorio introduces an innovative lens to protect and place human dignity at the centre of the legal discussion.
The complexity of the algorithmic society makes it a potential field of analysis from different legal optics, such as competition, consumer, contract law or privacy law. The problem is that those branches alone cannot fully grasp the problems related to the private ordering and authority that digital platforms impose over their users. In that regard, Digital Constitutionalism provides a holistic view to interpret and safeguard fundamental rights in the digital context.
At several times, the rhetoric of freedom, liberties and innovation has been used to shield private corporations and their abuse of power. This attitude favours the status quo and diminishes the rights of citizens in the digital age. In that regard, De Gregorio’s research plainly sheds light on the factual nature of platforms and how we can protect human dignity from the abuse of power of technology giants.
This book refreshes the reflection on digital technologies and human rights, and must be regarded as a starting point for further discussion, not as a final stage of debate. This work reflects indeed a new moment in legal academia, where constitutional and legal technology scholars must both take part.
Mauricio Figueroa is a PhD Candidate at Newcastle Law School, affiliated to the research group “Law and Futures”.
The North East Law Review is a law journal edited by students and members of staff at the Newcastle Law School. We invite contributions of the UK undergraduate and postgraduate students exploring various aspects of law and emerging technologies.
We are particularly interested in articles (up to 8,000 words, including footnotes) and essays (up to 4,000 words, including footnotes) addressing the following issues: topics relating to the Online Safety Bill or Digital Services Act, competition and regulation in digital markets, online platforms and digital advertising, intersection of competition and privacy/data protection, Digital Regulation Cooperation Forum and other topics relevant to Law and Emerging Technologies.
As students of Law, you use emerging technologies in your daily lives more than any other generation. Many of you will manage to combine this advanced understanding of the latest technological trends with robust and original legal thinking. It is not often that you will have an opportunity to publish your exceptional pieces of work and share your well-researched analysis within the broader likeminded UK student legal community. We encourage students with exceptional pieces of work to submit to this Special Issue of the North East Law Review on ‘Law and Emerging Technologies’, and we invite academics noting such student papers to share this Call with the relevant students.
All submissions should be sent as Word Documents to nelr@newcastle.ac.uk. The papers will be reviewed by the editorial team. Those selected for publication will be provided with the necessary feedback, comments and the North East Law Review Style Guide.
The closing date for submitting the papers is 3rd February 2023. The outcomes of the selection process will be communicated to each author by 3rd March 2023. Successful submissions will then need to be finalised, edited and formatted in line with the North East Law Review’s Style Guide by 3rd April 2023.
With the development of the tort ‘misuse of private information’ the law has increased the protection available to public figures in protecting their privacy. However, due to an inadequate system of press regulation and the rise in social media, it has become harder for the law to properly protect and provide redress for these harms. Despite claims from the government that progress has been made, there is a clear need for a more effective regulator that will scrutinise and hold publications to account, as well as making changes to improve the protection injunctions provide.
Regulating the Press
The Leveson Inquiry was set up with the aim of a better regulated media. This resulted in the Independent Press Standards Organisation (IPSO) being established as a self-regulator. Support for this has been given by members of the government. Matt Hancock claims they have made progress and have taken steps to demonstrate their independence. Yet, looking at their source of funding, can they really be considered independent?
The Regulatory Funding Company, who funds the IPSO, is financed by its member publications. It has control over things such as the standards code, appointments, investigation fund and voting. Hence, with such a high level of influence, to deem it truly independent seems misleading. IPSO also has the power to hold publications to account by issuing fines of up to £1 million for serious breaches, nevertheless, so far sanctions have never been issued. With over 1,700 violations, it seems unlikely they have never faced a serious enough breach. This could be an effective way to deter other publications from ignoring a public figure’s right to privacy, but without serious consequences, it seems publications will continue using unethical practices.
IPSO had the potential to be a more accessible route than taking privacy claims to court, nevertheless, it has been unsuccessful. This leaves legal action as the only way to provide redress and protect privacy, but even this may be under threat from social media.
Social Media and Injunctions
Newspaper circulation has dropped by around two-thirds since 2000, with people now getting their news from social media. Online platforms are not generating the same revenue as print and social media platforms often don’t pay for the content appearing on their websites. This means stories are reaching more people without the financial benefit to the publisher. The real pressure now is to get original stories faster, with little regard for the public interest, leading to unethical reporting. This is evidently concerning because once a story has been published, it is very difficult to curb the online spread. Damages for breaching someone’s privacy may not be satisfactory and often the information can still be found with minimal effort.
Social media is also threatening to undermine the effectiveness of the remedies available through court. Injunctions are granted to prevent private information being disclosed, limiting what journalists can publish. However, as information has become easy to share and people have access to a wider range of sources, jigsaw identification has become easier. This is where people can piece together snippets of information to identify the individual who is being protected, which can often lead to misidentification or intrusive speculation. One high profile example is Ryan Giggs who was granted an injunction against The Sun newspaper. The newspaper had published the story leaving his name anonymous, however, twitter users soon identified the person in question since the same information had been repeated more than 75,000 times. This ultimately left the injunction ineffective which demonstrates that the capability of the law to protect this information and provide redress is threatened.
Contempt of court is one way to hold those who breach an injunction online accountable, but this can often be costly and increase the publicity of the injunction. However, it is unrealistic to hold 75,000 people accountable on twitter as it would be extremely difficult. This mechanism will only be useful in a few circumstances and often is ineffective with social media making it easy for information to be shared by so many. The most effective way to prevent this breach of privacy and to uphold the value of injunctions would be through the use of pre-notification requirements. This would mean publishers have to notify the individual whose information they’re writing about so they may have the opportunity to get an injunction or stop publication.
“Publishers have to notify the individual whose information they’re writing about so they may have the opportunity to get an injunction or stop publication.”
ELeanor Fox, LLB Graduate from Newcastle law school
Pre-notification requirements have faced heavy criticism over concerns of the chilling effects on journalism, where time is of the essence, such as investigative journalism. To overcome this problem, this requirement could be used for certain categories of journalism, such as tabloid newspapers, where there is no pressing need to publish a story. This is unlikely to be implemented, however, as it is thought to give too little weight to freedom of speech and there has been little discussion around categorising journalism.
Jurisdictional Problems
Interim injunctions, granted by the court prior to privacy trials, are limited in their protection due to jurisdictional issues. These injunctions granted in England are not enforceable elsewhere in the UK. The information can therefore be published online in other UK jurisdictions and shared to viewers in England, undermining the law. This was true of the PJScase, where the information was shared in the US, Canada and Scotland despite being granted an interim injunction in England and Wales.
A solution to this would be to enable interim injunctions to be enforceable in all UK jurisdictions. This has received opposition from those such as Dominic Grieve QC, arguing that separate legal systems are fundamental to the UK. However, final injunctions received after trial are enforceable in all three jurisdictions, giving little weight to this argument if other forms of injunctions are enforced in this way. Although this would not overcome the problem of sharing the information in jurisdictions outside the UK, this could significantly increase the protection afforded to people’s privacy.
It is therefore clear that further press regulation reform is needed along with relevant steps required in order to preserve the effectiveness of injunctions and overcome jurisdictional problems. Until such changes are made, the law cannot sufficiently protect a public figure’s privacy.
Eleanor Fox is a Newcastle Law School alumni. This post is part of the research topic in law module blog post series.
