‘Notice and staydown’ and social media: amending Article 13 of the Proposed Directive on Copyright

ABSTRACT

This paper critically assesses the compatibility of content recognition and filtering technology or so-called notice and staydown approach with the right of social network platforms and users to a fair trial, privacy and freedom of expression under Articles 6, 8 and 10 of the European Convention on Human Rights (1950) (ECHR). The analysis draws on Article 13 of the European Commission’s proposal for a Directive on Copyright, the case-law of the Strasbourg and Luxembourg Court and academic literature. It argues that the adoption of content recognition and filtering technology could pose a threat to social network platforms and user human rights. It considers the compliance of ‘notice and staydown’ with the European Court of Human Rights’ (ECtHR) three-part, non-cumulative test, to determine whether a ‘notice and staydown’ approach is, firstly, ‘in accordance with the law’, secondly, pursues one or more legitimate aims included in Article 8(2) and 10(2) ECHR and thirdly, is ‘necessary’ and ‘proportionate’. It concludes that ‘notice and staydown’ could infringe part one and part three of the ECtHR test as well as the ECtHR principle of equality of arms, thereby violating the rights of social network platforms and users under Articles 6, 8 and 10 of the Convention.     

Reform from within: the Grendon example

In Salduz v Turkey (27 November 2008, No. 36391/02), the Grand Chamber of the European Court of Human Rights (ECtHR) stated:

...in order for the right to a fair trial to remain sufficiently ‘practical and effective’… Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right…The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.     

The Reasonable Expectation of Privacy and the Criminal Suspect

In In re JR38, the Supreme Court unanimously dismissed an appeal from a 14 year‐old boy who argued that the dissemination of his image, taken whilst he was participating in sectarian rioting, to local newspapers, violated his rights under Article 8 of the European Convention on Human Rights (ECHR). However, the Court was divided on whether or not the measures taken by the police engaged the applicant's Article 8(1) rights at all. This case raises fundamental questions as to the scope of private life in the context of criminal investigations, and the place of the European Court of Human Rights’ ‘reasonable expectation of privacy’ test in determining whether Article 8(1) of the ECHR is engaged. This case comment subjects the majority's interpretation of Article 8(1) to critical scrutiny, concluding that this interpretation may unduly restrict the scope of Article 8 protection for those subject to criminal investigations.     

Taking Care of Strasbourg: The Status of the European Convention on Human Rights and the Case-Law of the European Court of Human Rights in Kosovo’s Domestic Legal System

This paper addresses the position of the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR) case-law in Kosovo’s domestic legal order. To begin with, it reviews the background of the issue of human rights in Kosovo highlighting its distinct position and perspective. This article then analyses the position held by the European Convention on Human Rights and its protocols in Kosovo’s legal order while also addressing the ECHR’s constitutionalization, its direct effect and the constitutional review on basis of it. The paper then examines whether the case-law of the ECtHR is binding in Kosovo, whether it is directly effective, and whether Kosovo’s Constitutional Court can use it as a ground in the conduct of constitutional reviews. This paper argues that the ECHR and the case-law of the ECtHR both hold a privileged status under Kosovo’s constitutional law, despite Kosovo not being a party to the ECHR and, therefore, having no international liability to implement the ECHR. In addition, the paper offers certain arguments regarding the relative positions of the ECHR and the case-law of the ECtHR within the current practice of Kosovo’s judicial system. This paper concludes with the argument that the ECHR and the case-law of the ECtHR hold a privileged status in the context of Kosovo’s domestic legal order—one which could serve as a precedent in respecting human rights and freedoms.     

Inhuman and Degrading Punishment,Dignity, and the Limits of Retribution

The recent judgment of the Grand Chamber of the European Court of Human Rights (ECtHR) in Vinter and others v United Kingdom provides a much needed clarification of the parameters of the prohibition on inhuman and degrading punishment under Article 3 of the European Convention on Human Rights (ECHR) as it applies to whole life orders of imprisonment under mandatory life sentences – essentially, life imprisonment without parole. The Grand Chamber's judgment refines Strasbourg doctrine on life imprisonment and the prospect of release and illuminates key principles concerning inhuman and degrading punishment under Article 3 of the ECHR. This article considers the judgment's profound significance in relation to both human rights and penology.     

Incompatibility of the Digital Economy Act 2010 subscriber appeal process provisions with Article 6 of the ECHR

Through case-law research, this paper critically assesses the compatibility of the Digital Economy Act 2010 (DEA) subscriber appeal process provisions (Section 13 of the DEA) with Article 6 of the European Convention on Human Rights (ECHR). Drawing on the European Court of Human Rights (ECtHR) case-law, Ofcom's Initial Obligations Code (the Code), and the DEA judicial review decision, namely, BT PLC and Talk Talk PLC v Secretary of State for Business Innovation and Skills and others, this paper focuses on the three Strasbourg Court principles of equality of arms, admissibility of evidence, and presumption of innocence, in an effort to determine whether Section 13 of the DEA infringes them, and whether this constitutes a breach of a subscriber's right to a fair trial under Article 6 of the ECHR. The paper examines these three ECtHR principles. It contrasts such principles with the Code's provisions, and considers the compatibility of Section 13 of the DEA with Article 6 of the ECHR. It concludes that the DEA subscriber appeal process provisions do indeed infringe these principles, thus constituting a violation of subscribers' right to a fair trial. It also recommends that the UK government start taking seriously human rights in general, and Article 6 of the ECHR in particular.     

The Child in European Human Rights Law

This article examines the category of ‘the child’ in European human rights law, based on an analysis of the child‐related jurisprudence of the European Court of Human Rights. It argues that a full account of legal selfhood is constructed through the notion of ‘the child’ in this jurisprudence. The two notions – of ‘the child’ and ‘the self’ – are, from the outset, mutually dependent. The conceptualisation of ‘the child’ in human rights law is underpinned by an account of the self as originating in another and childhood is cast as enabling self‐understanding by making possible the formation of a narrative about the self. The vision of ‘the self’ that emerges is one of ‘the narrative self’, and I assess the implications of this both for the idea of childhood in which this narrative originates and for the vision of the human condition that is expressed in European human rights law more broadly.     

In a World of Their Own: Security‐cleared Counsel,Best Practice,and Procedural Tradition

This article charts how security‐cleared counsel have been constructed as a mechanism for managing the tension between security and fairness in secret trials and transferred across national boundaries as an example of ‘best practice', before going on to evaluate recent cross‐cultural and transnational research on this ‘best practice'. Particular attention is paid to the central role played by the European Court of Human Rights (ECtHR) in promoting the role of ‘special advocates’ and a contrast is made between the methodologies deployed by the Court and those used in recent research to identify and problematize ‘best practice’ within the closed world of security‐cleared counsel. The article then goes on to explore the relationship between ‘best practice’ and procedural tradition and argues that normative solutions advancing ‘best practice’ need to pay careful attention to the procedural contexts and cultures in which they are embedded.     

Facial recognition technology,democracy and human rights

On 4 July 2023, the Third Section of the European Court of Human Rights (ECtHR) delivered the first judgment on the compatibility of facial recognition technology with human rights in Glukhin v. Russia. The case concerned the use of facial recognition technology (FRT) against Mr Glukhin following his solo demonstration in the Moscow underground. The Court unanimously found a violation of Article 8 (right to respect for private life) and Article 10 (freedom of expression) of the European Convention of Human Rights (ECHR). Regarding FRT, the Court concluded that the use of highly intrusive technology is incompatible with the ideals and values of a democratic society governed by the rule of law. This case note analyses the judgment and shows its relevance in the current regulatory debate on Artificial Intelligence (AI) systems in Europe. Notwithstanding the importance of this decision, we argue that the Court has left crucial questions unanswered.     

Homosexuality and the African Charter on Human and Peoples' Rights: What Can Be Learned from the History of the European Convention on Human Rights?

Despite differences between the European Convention on Human Rights (ECHR) and the African Charter on Human and Peoples' Rights (ACHPR) in terms of the substantive rights guaranteed and machineries to enforce them, both instruments have been foundational in the establishment of organizations that share a common history of rejecting human rights complaints from homosexuals. Although the contemporary jurisprudence of the European Court of Human Rights (ECtHR) on homosexuality may contrast sharply with that of the African Court on Human and Peoples' Rights (ACtHPR) and the African Commission on Human and Peoples' Rights (ACmHPR) – because the ACtHPR and ACmHPR have never upheld a complaint relating to sexual orientation – the early history of the ECtHR and the former European Commission on Human Rights (ECmHR) mirrors the current African stance. This article explores what those seeking to develop gay and lesbian rights in Africa might usefully learn from the historical evolution of similar rights under the ECHR.     

O'Keeffe v Ireland: The Liability of States for Failure to Provide an Effective System for the Detection and Prevention of Child Sexual Abuse in Education

In O'Keeffe v Ireland, the Grand Chamber of the European Court of Human Rights found that Ireland failed to protect the applicant from sexual abuse suffered as a child in an Irish National School in 1973 and violated her rights under Article 3 (prohibition of inhuman and degrading treatment) and Article 13 (right to an effective remedy) of the European Convention on Human Rights. This note argues that the decision is important in expanding the Court's jurisprudence regarding positive obligations under Article 3 to child sexual abuse in a non‐state setting where there was no knowledge of a ‘real and immediate’ risk to the applicant. It also argues that the case raises concerns about the Court's methodology for the historical application of the Convention and about the interaction of Article 3 positive obligations with vicarious liability in common law tort regimes.     

Case Comment: The Legality of ‘Kettling’ after Austin

This case comment considers the European Court of Human Rights decision of Austin v United Kingdom (2012) 55 EHRR 14. Austin claimed, unsuccessfully, that police kettling at a public protest in London amounted to a violation of her right to liberty under Article 5 of the European Convention of Human Rights. This case comment suggests that the court took an unexpected and unorthodox approach to the issue of ‘deprivation’ within Article 5. This decision may come to undermine the protections afforded by Article 5 and extend the current exceptions to Article 5 to an indefinite range of situations.     

Assessing the best interests of the child in cases of cross-border surrogacy: inconsistency in the Strasbourg approach?

This article examines the approach of the European Court of Human Rights (ECtHR) to assessing the best interests of the child in three recent cases of cross-border surrogacy, namely Mennesson v France, Labassee v France and Paradiso and Campanelli v Italy. It is argued that these cases reveal inconsistency in the ECtHR’s assessment of the best interests of the child. In Mennesson and Labassee, the ECtHR found that the national authorities’ refusal to legally recognise the relationships between the children and the intended parents amounted to a violation of Article 8 ECHR, whereas no violation was found in Paradiso. A notable distinguishing feature of Paradiso was that there was no genetic relationship between the child and the intended parents, and it is this point that seemingly led the Court to assess the best interests of that child differently to the others.     

欧洲人权法院视野中的非法证据排除制度——以"格夫根诉德国案"为例

格夫根案的大审判庭裁决反映出欧洲人权法院在非法证据排除问题上的完整立场,即对通过酷刑获取的任何证据和以非法手段获取的言词证据实行自动排除,对以非人道待遇取得的实物证据根据比例原则决定是否排除,对非法证据的派生实物证据根据利益权衡原则决定是否排除,并以公正审判权作为适用排除规则的重要尺度.在刑事司法准则日益国际化的背景之下,该立场反映了排除规则发展的整体趋势,对我国排除规则的完善有较强的借鉴意义.立足本土法律实践,反思与国际人权基准之间的脱节与落差,将排除规则纳入公正审判权的保障体系,是排除规则发展的大势所趋.     

Out of Many,One? Strasbourg's Ibrahim Decision on Article 6

This case comment considers the European Court of Human Rights decision of Ibrahim v United Kingdom on 13 September 2016. Relying on Salduz v Turkey, the applicants claimed, largely unsuccessfully, that denial of access to a lawyer during police questioning, and subsequent admission into evidence of statements made in the course of that questioning, violated fair trial rights protected by Article 6 of the European Convention on Human Rights. The comment suggests that the decision's unusually emphatic statements about Article 6's ‘internal structure’ have consequences for assessing violations in future applications. Further, the decision creates greater room for public interest balancing in Article 6 cases. The decision may thus undermine the Article 6 guarantees.     

Harmonising national sanctioning administrative law: An alternative to a single capital‐markets supervisor

Since the disclosure in 2009 of the Larosière Report, legislative acts disciplining financial markets have established a set of rules called to form the foundations of a sanctioning administrative law to be enforced by the Member States. Furthermore, the ECtHR and the ECJ, are contributing to apply here the guarantees of the Rome Convention and the Charter of Fundamental Rights. This study, in addition to giving account of such legislation and case‐law, aims to outline the broad principles of this new law, whose purpose is levelling the ‘playing field’ amongst NCAs and fostering supervisory convergence without creating new institutions. Should this ‘experiment’ be successful, and a new way of ‘cooperative federalism’ could emerge at a global level in the Union. Otherwise, further centralisation—which is neither possible nor desirable at this stage—should be expected in future years, with a sort of single supervisory mechanism in securities markets.     

Criminal law

The close temporal coincidence of International Human Rights Day 2010 (10 December 2010) and the tenth anniversary of the Human Rights Act 1998 (2 October 2010) stimulates some reflections on the progressive scope and influence of this domestic statute of towering importance. In addition, it seems especially appropriate to examine how Article 2 of the European Convention, which protects the individual’s right to life and is a cornerstone of this treaty, has featured in the jurisprudence of both the European Court and domestic courts. This article considers the celebrated Conjoined Twins case, together with other challenging issues which have confronted the courts – termination of pregnancy, medical prolongation of life, assisted suicide and so-called ‘mercy killing’.     

EU Accession to the ECHR: Between Autonomy and Adaptation

After the European Union's accession to the European Convention on Human Rights the EU will become subject to legally binding judicial decisions of the European Court of Human Rights (ECtHR) and participate in statutory bodies of the Council of Europe (Parliamentary Assembly; Committee of Ministers) when they act under the Convention. Convention rights and their interpretation by the ECtHR will be directly enforceable against the EU institutions and against Member States when acting within the scope of EU law. This will vest the ECHR with additional force in a number of Member States, including Germany and the UK. All Member States will further be subject to additional constraints when acting under the Convention system. The article considers the reasons for, and consequences of the EU's primus inter pares position under the Convention and within the Council of Europe, and the likely practical effect of the EU's accession for its Member States.     

Who controls the Naomi Campbell information flow? A practical analysis of the law of privacy

Legal context. The House of Lords held that the medical privacyof the glamorous supermodel Naomi Campbell was violated by publicationof details of her drug addiction treatment and a paparazzi picture.English law is developing under the influence of Article 8 (theright of privacy) and Article 10 (the right of freedom of expression)of the European Convention of Human Rights. The court explainedhow the action for breach of confidence protects privacy. So,who controls the Naomi Campbell information flow? Key points. Primarily, the courts control the flow of privateinformation. They do so through the cause of action of breachof confidence and remedies. In deciding liability, the courtsshould ask whether the benefit of publication is proportionateto the harm done by the invasion of privacy. To answer the question,they must balance the public interest in the right of privacyagainst the public interest in the right of freedom of expression.They may settle on a Reynolds type test by considering a numberof non-exhaustive factors. The article examines seven suggestedfactors and the remedies which can be deployed by the courts.Judgments from the English courts and the European Court ofHuman Rights are considered, including Campbell v MGN (HL),Douglas v Hello! (CA), McKennitt v Ash (HC), Peck v UK (ECtHR),Édition Plon v France (ECtHR), and Von Hannover v Germany(ECtHR). Practical significance. There are an increasing number of privacyclaims against the media. The article includes a checklist ofseven factors to help determine where the balance lies betweenprivacy and freedom of expression.     

"Braxton Hick's" or the birth of a new era? Tracing the development of Ireland's abortion laws in respect of European Court of Human Rights Jurisprudence

In Ireland, Article 40.3.3 degrees of Bunreacht na hEireann (the Irish Constitution) guarantees the right to life of the unborn child and the equal right to life of the mother. Abortion in Ireland is permissible only where there is a real and substantial risk to the mother's own life. Since Ireland became a signatory to the European Convention on Human Rights in 1950,2 there have been concerns that it could result in Ireland being compelled to introduce a right to abortion. This article commences with a review of the extant law on abortion in Ireland, tracing the Constitutional protection afforded to the unborn child. The article will discuss the impact of the European Court of Human Rights' jurisprudence in regard to access to abortion and to information on abortion services in Ireland in an effort to ascertain if it really has resulted in a radical change to Irish abortion laws. As such, it will also be necessary to examine the more recent decisions of the ECtHR such as Tysiac v. Poland, and A, B, and C v. Ireland, to determine both the approach of the ECtHR to access to abortion in general and also to consider if it has resulted in a liberalisation of abortion law in Ireland.