"For the Protection of the Reputation or Rights of Others ": The European Court of Human Rights' Interpretation of the Defamation Exception in Article 10(2)

Legal observers have praised the European Court of Human Rights' defamation case law as an example to be emulated in international law. Yet scholars who have studied the court's defamation jurisprudence have focused primarily on a handful of the court's noteworthy cases. A broader examination of the court's entire body of defamation case law provides a complete picture of the court's defamation jurisprudence. The ECHR's defamation case law has come increasingly to mirror principles of common law and United States First Amendment law. Although the ECHR has produced some commendable judgments protecting speech critical of governments and politicians, it has developed a hierarchy of protected expression that leaves other expression vulnerable to restriction. Further, even though the court has condemned several specific criminal defamation prosecutions, it has failed to strike down, and has expressly condoned, criminal defamation in general.     

Penal and Prison Policy on the “Sunny Side of the Alps”: The Swan Song of Slovenian Exceptionalism?

The article considers penal and prison policy in Slovenia by illustrating and confronting the roots, development and main features of Slovenian vis-à-vis Scandinavian penal “exceptionalism”. It first explores economic, social and political developments that made both Scandinavian and Slovenian penal regimes, in terms of stability and leniency of penal policy, low imprisonment rates and quality of prisoner treatment, to some degree exceptional if confronted with regimes of the vast majority of western countries. Further, the authors explore what consequences and implications the recent punitive tendencies have for Slovenian exceptionalism and whether they jeopardize or perhaps even threaten mild penal order, which the country on the “sunny side of the Alps” has been building since the 1970s. Finally, the authors try to find out whether, in spite of the declining welfarism and rising punitiveness, Slovenian-style penal exceptionalism has a chance to revive and endure.     

EARLY LIFE RISKS,ANTISOCIAL TENDENCIES,AND PRETEEN DELINQUENCY

Early age‐of‐onset delinquency and substance use confer a major risk for continued criminality, alcohol and drug abuse, and other serious difficulties throughout the life course. Our objective is to examine the developmental roots of preteen delinquency and substance use. By using nationally representative longitudinal data from the UK Millennium Cohort Study (N= 13,221), we examine the influence of early childhood developmental and family risks on latent pathways of antisocial tendencies from 3 to 7 years of age, and the influence of those pathways on property crime and substance use by 11 years of age. We identified a normative, nonantisocial pathway; a pathway marked by oppositional behavior and fighting; a pathway marked by impulsivity and inattention; and a rare pathway characterized by a wide range of antisocial tendencies. Children with developmental and family risks that emerged by 3 years of age—specifically difficult infant temperament, low cognitive ability, weak parental closeness, and disadvantaged family background—face increased odds of antisocial tendencies. Minimal overlap is found between the risk factors for early antisocial tendencies and those for preteen delinquency. Children on an antisocial pathway are more likely to engage in preteen delinquency and substance use by 11 years of age even after accounting for early life risk factors.     

Technological Change,Globalization and the Europeanization of Rights

In contrast to civil and political rights, and to economic and social rights, which have been constructed and guaranteed within the framework of the nation-state, the new rights that aim to respond to opportunities and risks arising from new information and communication technologies, biotechnologies or, more generally, technology-based industrial development, are emerging in a context characterized by the strengthening of trans-national forces and dynamics (so-called 'globalization') and the erosion of state sovereignty. The state's loss of power and autonomy to regulate economic and social activity, as well as to protect individual rights, has been accentuated in the European Community (EC) as a result of a process that to a certain degree anticipated contemporary global tendencies. The EC appears, therefore, as a privileged observatory of the possible impact of globalization on the contents of rights, whether 'classical' rights or new rights, such as the rights of access to information, new forms of intellectual property or rights to be consulted or to participate in decision-making about environmental risk. My main objective in this article is to analyze recent developments in the EC's legal framework of informational and environmental policies with a view to evaluate how opportunities for individual and collective action and welfare, made possible by new information and communication technologies or claimed by environmentally alert citizens, are being defined in the form of rights recognized to individuals or social groups.     

The Anonymous Matrix: Human Rights Violations by 'Private' Transnational Actors

Do fundamental rights obligate not only States, but also private transnational actors? Since violations of fundamental rights stem from the totalising tendencies of partial rationalities, there is no longer any point in seeing the horizontal effect as if rights of private actors have to be weighed up against each other. On one side of the human rights relation is no longer a private actor as the fundamental‐rights violator, but the anonymous matrix of an autonomised communicative medium. On the other side, the fundamental rights are divided into three dimensions: first, institutional rights protecting the autonomy of social discourses – art, science, religion ‐ against their subjugation by the totalising tendencies of the communicative matrix; secondly, personal rights protecting the autonomy of communication, attributed not to institutions, but to the social artefacts called ‘persons’; and thirdly, human rights as negative bounds on societal communication, where the integrity of individuals' body and mind is endangered.     

A TEST OF THE BLACK SUBCULTURE OF VIOLENCE THESIS: A RESEARCH NOTE*

We use data from the General Social Survey (1983 to 1991) to test Wolfgang and Ferracuti's hypothesis that violent values are widespread among African-Americans. Contrary to the expectations of the black subculture of violence thesis, our analyses indicate that white males are significantly more likely than blacks to express violent tendencies in defensive situations and that there is no significant difference between white and black males in offensive situations, ceteris paribus. Thus, we have rejected, within the limitations of our data, the hypothesis that a unique subculture of violence exists among the general population of African-Americans in the United States.     

Race and the decision making of juries

The relationship between race and jury decision making is a controversial topic that has received increased attention in recent years. While public and media discourse has focused on anecdotal evidence in the form of high‐profile cases, legal researchers have considered a wide range of empirical questions including: To what extent does the race of a defendant affect the verdict tendencies of juries? Is this influence of race comparable for jurors of different races? In what ways does a jury's racial composition affect its verdict and deliberations? The present review examines both experimental and archival investigations of these issues. Though the extant literature is not always consistent and has devoted too little attention to the psychological mechanisms underlying the influence of race, this body of research clearly demonstrates that race has the potential to impact trial outcomes. This is a conclusion with important practical as well as theoretical implications when it comes to ongoing debates regarding jury representativeness, how to optimize jury performance, jury nullification and racial disparities in the administration of capital punishment.     

Anger and Aggression: A New Beginning?

Within our civilian population, Intimate Partner Violence (IPV) has become a major health problem. Consequences of anger and aggression have resulted in incarceration rates which place the United States as the world's leader with 2.2 million people in prisons and jails. The current treatment of anger and aggression is based primarily on theories that were developed in the early 1980s. Advances in neuroscientific knowledge have exponentially added to our understanding of the underlying biological basis and neuroanatomy of violence and aggression. Through a binaural sound‐based non‐verbal intervention, we have found a key to unlock long‐term memory (Reconsolidation) that facilitates rapid remediation of anger and violence issues. Within our Pilot Study findings, a number of our combat‐veterans with Post‐Traumatic Stress Disorder (PTSD) experienced a positive transformation in their capacity to evidence empathy, intimacy and social engagement as contrasted with their prior isolative tendencies. We extrapolate how this intervention might positively impact those engaged in Anger Management (AM) and IPV programs.     

The Diagnostic Frame in National Security Evaluations

In clinical and most forensic evaluations, “diagnosis” connotes the expectation of a DSM‐5 or ICD‐10 formally labeled mental condition. When the task is to evaluate the security risk a person's psychological makeup presents to an institution, such a molar diagnosis can blind the clinician and elevate the risk to a security agency. When “diagnosis” connotes achieving an understanding of a person's behavior that has raised security concerns, then a different conceptualization of the diagnostic process is required. Unlike the clinical situation, the evaluation is not being performed to benefit the person but for the purpose of assessing risk to an agency. The differences this introduces involve every aspect of the evaluation and changes the type of diagnosis expected. Not appreciating these differences can cause the clinician to fail in the task of assessing psychological tendencies that affect national security.     

European Citizenship: Towards a European Identity?

Questions of political identity and citizenship, raised by thecreation of the `new Europe', pose new questions that politicaltheorists need to consider. Reflection upon the circumstances ofthe new Europe could help them in their task of delineatingconceptual structures and investigating the character ofpolitical argument.

Does it make sense to use concepts as `citizenship' and`identity' beyond the borders of the nation-state? What does itmean when we speak about `European Citizenship' and `EuropeanIdentity'?

It is argued that the pluralism that has led theorists tooffer a conception of citizenship based upon principles of right,rather that the common good, applies even more strongly at thelevel of the European political order. Developing a contractariantheory of federation, an account of the basis of a Europeancitizenship will be offered in which federalism emerges out of anoverlapping consensus of European citizens on the terms of theirpolitical association.

`European Citizenship' and `European Identity' are discussedin the context of the so-called `European Union', and not in thewider context of Europe `as a whole', or for that matter on aneven broader `cosmopolitan' scale. However, the gist of the articleis that arguments for concepts of `citizenship' and `identity'that go beyond borders of nation-states and that are applied tothe `European Union', could have implications for an even widerapplication.

Finally, and in conclusion, the (empirical) context will beelaborated in which the normative concept of shared liberalcitizenship identity should be realized on a pan-national,European level.

     

E-Commerce and Privacy Issues: An Analysis of the Personal Data Protection Bill

One of the concerns of e-commerce is the need to maintain users' privacy online. The usage of technical means to track down user's surfing and purchasing tendencies by the use of cookies, and sniffers to capture data while in the course of transmissions, has raised significant privacy issues. These anonymous data minings, although they may not necessarily bring harm to customers, nevertheless are a form of intrusion into one's privacy in cyberspace. In the US, the Federal Trade Commission has submitted a self-regulatory plan to require Web advertising companies to notify consumers of their Internet profiling activities and to give the customers the chance to choose whether information about Web activities and interests can be gathered anonymously. It is for this purpose that the Malaysian legislators devised the Personal Data Protection Bill. The importance of this is made clear in the explanatory statement of the personal data protection bill in Malaysia. The draft bill makes the law in Malaysia closer to the EU regime, which chooses legislation over self-regulation in this area. The purpose of this paper is to examine the nature, manner and scope of personal data protection under the Malaysian Bill.     

European Studies and the European Crisis: Legal and Political Science between Critique and Complacency

European Studies used to be dominated by legal and political science approaches which hailed the progress of European integration and its reliance on law. The recent set of crises that struck the EU have highlighted fundamental problems in the ways and means by which European integration unfolds. The quasi‐authoritarian emergency politics deployed in the euro crisis is a radical expression of the fading prevalence of democratic processes to accommodate economic and social diversity in the Union. As we argue in this paper, however, the mainstreams in both disciplines retain a largely affirmative and apologetic stance on the EU's post‐democratic and extra‐constitutional development. While political science contributions mostly content themselves with a revival of conventional integration theories and thus turn a blind eye to normatively critical aspects of European crisis governance, legal scholarship is in short supply of normatively convincing theoretical paradigms and thus aligns itself with the functionalist reasoning of the EU's Court of Justice. Yet, we also identify critical peripheries in both disciplines which intersect in their critical appraisal of the authoritarian tendencies that inhere in the crisis‐ridden state of European integration. Their results curb the prevailing optimism and underline that the need for fundamental reorientations in both the theory and practice of European integration has become irrefutable.     

Issue Accountability and the Mass Public

Under what conditions, if any, does the mass electorate hold congressional members accountable for their records on specific issues? We examine this question on the issue of crime, for which salience has varied substantially and opinion has favored Republicans, and the environment, for which salience has not varied much and voters have favored Democrats. Because different parametric specifications produce divergent findings, we utilize matching analysis in addition to ordinary least squares. The tests suggest that issue accountability exists even controlling for a member's overall record. However, such accountability depends crucially on issue salience and a member's partisan affiliation.     

Turning over a new leaf? Cohesion and discipline in the Italian parliament

The literature on parties suggests various hypotheses about the conditions under which the cohesion and discipline of parliamentary parties will be greater or lesser. Since one such hypothesis concerns party‐system characteristics, Italy offers an opportunity to investigate what happens to cohesion and discipline when a system characterised by the permanence in office of a large, centrally located party and based on the permanent exclusion of left and right extremes, is replaced by one characterised by strong bi‐polar tendencies and the alternation in office of two competing coalitions. Italy's transformation appears to have produced more cohesive and disciplined behaviour in parliament.     

‘Hermann Heller and the European Crisis: Authoritarian Liberalism Redux?’

This essay tentatively buttresses Alexander Somek's view that Hermann Heller's 1933 essay, ‘Authoritarian Liberalism’, provides a useful starting point for thinking about the ongoing European crisis, in which European authorities are favouring rigid austerity and pro‐business policies while undermining basic liberal and democratic rights. Heller's unfortunate neglect, especially in Anglophone scholarship, is discussed. Nonetheless, Somek and other recent scholars who have turned to Heller to make sense of the European crisis downplay some of the tough questions raised by any attempt to apply Heller's analysis of the Weimar crisis to the contemporary setting. In particular, Heller's theory relied on a robust social democratic statism which has become increasingly unpopular even among theorists on the political left.     

Auto Theft and Restrictive Deterrence

Although researchers have examined the attributes that make offenders more or less responsive to sanction threats, far less attention has centered on the manner in which responsiveness can lead to less detectible crime, or perhaps even more overall crime. Restrictive deterrence is the concept that explains this paradox. We explore it here using qualitative interviews with 35 active auto thieves. Findings suggest that auto thieves' restrictively deterrent decision-making strategies fell into three broad categories: discretionary target selection, normalcy illusions, and defiance. Discussion focuses on the data's conceptual implications for restrictive deterrence and offender decision-making.     

Empathy deficits of sexual offenders: A conceptual model

Most treatment programmes for sexual offenders include some form of victim empathy training. Although the concept of empathy has acquired diverse meanings, those interested in sexual offenders' empathy deficits are primarily concerned about the offenders' lack of compassion or sympathy for their victims. A model of empathy is presented in which uncompassionate responses are the product of three initial conditions: a) an adversarial or indifferent relationship; b) perspective-taking deficits; and c) inappropriate methods for coping with the perceived distress of others. The model suggests that empathy training should target specific deficits, and that misdirected interventions would be expected to have no effects, or even detrimental effects, on the offenders' ability to generate sympathetic, compassionate responses to victims.     

The State of Freedom in Europe

The reaction to 11 September damaged the liberty of those living in Europe who found themselves targeted as suspect terrorists while seeming to do little to ensure the security of the wider community. More recently a second emergency, rooted this time in the financial and economic collapse of 2008 onwards, has caused a further unravelling of Europe's constitutional project, even threatening the gains of past generations of European idealists. In today's Europe universal liberty and security have no meaning for many even if their shape is retained in structures that in truth mock rather than deliver democracy and human rights. This article traces the origins of the crises that have afflicted so directly the breadth of liberty and human security in the Union, demonstrating their roots in ‘viruses’ that have been present from the start of the European movement but which have now spiralled out of control. The essay ends by asking what can be done to prevent the full decline of the region into a state of neo‐democratic/post‐democratic unfreedom, one in which capital unbound from democracy thrives at the expense of the people.     

Cybercrimes v. Cyberliberties

The broad topic of 'crime and cyberliberties' encompasses two major subtopics: firstly, the extent to which online expression may be punished under new criminal laws, even if it would be lawful in the traditional print media; and secondly, the extent to which online privacy may be restricted to facilitate enforcement of existing criminal laws. In both contexts, many law enforcement officials argue that we have to make trade-offs between, on the one hand, individual rights and, on the other hand, public safety. In fact, though, the alleged dichotomy is oversimplified and misleading. Claims about the alleged unique dangers of online expression are exaggerated, and the types of criminal laws and law enforcement strategies that have worked effectively in other media are also effective in cyberspace. For example, children should be protected from exploitation in the production of child pornography through the same measures, regardless of whether the material is distributed through postal mail or e-mail. Indeed, individuals and organizations who are devoted to protecting children from exploitation and abuse-whether for the production of child pornography or any other purpose-have expressed frustration that resources that should be used to enforce existing laws are being diverted toward efforts to create new cyberspeech crimes, such as the two US laws criminalizing online material that is 'indecent,' 'patently offensive', or 'harmful to minors'. The many judges who have ruled on these laws-including the entire US Supreme Court-have agreed that they violate free expression rights and are not necessary for their stated purpose of protecting children. The battle to preserve online privacy has not been as successful in the US, where the government restricts strong encryption despite the vigorous objections of not only cyberlibertarians, but also the business community. Moreover, even some law enforcement and other government officials have concluded that, on balance, security concerns are aided, not undermined, by strong encryption, since it protects innocent individuals and legitimate businesses from cybercriminals, and it also protects governments and vital infrastructures from cyberterrorism. Most governments apparently recognize these facts since they have not joined the US in restricting encryption technology.     

Legislative Effectiveness and Legislative Careers

We studied an underutilized source of data on legislative effectiveness and exploited its panel structure to uncover several interesting patterns. We found that effectiveness rises sharply with tenure, at least for the first few terms, even when we control for legislators' institutional positions, party affiliation, and other factors. Effectiveness never declines with tenure, even out to nine terms. The increase in effectiveness is not simply due to electoral attrition and selective retirement, but to learning‐by‐doing. We also found evidence that a significant amount of “positive sorting” occurs in the legislature, with highly talented legislators moving more quickly into positions of responsibility and power. Finally, effectiveness has a positive impact on incumbents' electoral success and on the probability of legislators moving to higher office. These findings have important implications for arguments about term limits, the incumbency advantage, and seniority rule.