Returning on the eve of the new Trinity law term, we catch up on some of the legal stories and commentary over the last fortnight. These include the application of international law in cyberspace, of domestic law to social media, and of European law to data protection. Plus developments relating to judges, courts and case law, and some international news.

Law and the internet

International law in cyberspace

The Attorney General Jeremy Wright QC MP gave a speech on 23 May 2018 about bringing the internet and cyberspace under the control of international law, in relation to both state and non-state actors.

“Cyber space is not – and must never be – a lawless world. It is the UK’s view that when states and individuals engage in hostile cyber operations, they are governed by law just like activities in any other domain. […] States that are targeted by hostile cyber operations have the right to respond to those operations in accordance with the options lawfully available to them”

He set out how the UK proposed to respond to cyber attacks by state or non-state actors (or proxy actors) in principle and in a number of sample situations. A United Nations Expert Group on cyber technology had confirmed, and major states including the US, Russia and China, had recognised, that the UN Charter applied in its entirety to cyberspace.

Three specific rules in the Charter were particularly relevant. First, the rule prohibiting interventions in the domestic affairs of other states under Article 2(7) and customary international law. Second, the prohibition under Article 2(4) on the threat or use of force against the territorial independence or political integrity of another state. Third, the inherent right to take action in self-defence, under Article 51, against any threat of death and destruction equivalent to an armed attack.

Among the examples cited as warranting response were cyber attacks on the UK’s nuclear energy capability, on its air traffic control systems, or (as in the case of the WannaCry ransomware attack) on its essential medical services. In addition, cyber activity could be used for humanitarian ends to hinder hostile acts, eg by Daesh.

“[It] is also worth stating that, as a matter of law, there is no requirement in the doctrine of countermeasures for a response to be symmetrical to the underlying unlawful act. What matters is necessity and proportionality, which means that the UK could respond to a cyber intrusion through non-cyber means, and vice versa.”

Wright also announced that the UK was investing £1.9 bn in cyber security. You can read the entire speech here.

Regulation of social media

Two other government ministers, the Home Secretary Sajid Javid and the Secretary of State for Digital, Culture, Media and Sport Matt Hancock, joined forces to launch a series of measures together with the government’s response to the Internet Safety Strategy green paper, published on 20 May 2018.

The measures include the creation of new online safety laws “to make sure the UK is the safest place in the world to be online”. The announcement continued:

“DCMS and Home Office will jointly work on a White Paper with other government departments, to be published later this year. This will set out legislation to be brought forward that tackles a range of both legal and illegal harms, from cyberbullying to online child sexual exploitation. The Government will continue to collaborate closely with industry on this work, to ensure it builds on progress already made.”

The measures would build on the government’s Digital Charter announced earlier:

“The Digital Charter is a rolling programme of work to agree norms and rules for the online world and put them into practice. In some cases this will be through shifting expectations of behaviour; in some we will need to agree new standards; and in others we may need to update our laws and regulations. Our starting point will be that we will have the same rights and expect the same behaviour online as we do offline.”

 

Data Protection

DPA 2018 passed in nick of time for #GDPRday

The Data Protection Act 2018 replaces the previous Data Protection Act that had been in place since 1998 and will supplement major reforms to data protection laws that are contained in the General Data Protection Regulation (GDPR), which came into force on 25 May 2018.
As the Out-Law blog explains,

“The new Data Protection Act contains provisions will which allow for continuation of the GDPR in the UK post-Brexit. It also implements the EU Law Enforcement Directive, setting rules on the processing of personal data by law enforcement agencies and intelligence services.”

Up and down the land, in and out of its homes and businesses, people have been struggling to understand just what it was they had to do, to render themselves compliant. There has been more energy expended in compliance with GDPR than almost anything since the panic over the much-feared re-set of computer clocks at the turn of 2000 (the so-called Y2K bug, often depicted as a sort of cyber-cockroach). In the end it was all fine, and much worse things have threatened computers since then, like the people using them.

ICLR succumbed to the craze for transparently being seen to be doing something, which means you may well have heard from us by email and learned about the new privacy terms we’ve implemented. You can read them here.

Thanks to representations made by or on behalf of BAILII, an amendment passed in the House of Lords has explicitly covered, as one of the “substantial public interest conditions” for data processing in Part 2 of Schedule 1 to the Act, the “Publication of legal judgments”. By para 26 of Sch 1,

“26 This condition is met if the processing— (a) consists of the publication of a judgment or other decision of a court or tribunal, or (b) is necessary for the purposes of publishing such a judgment or decision.”

This covers the issue of including person data in a court judgment without the data subject’s consent. There are additional protections for processing in the course of “acting in a judicial capacity” which protect the composition of the judgments and management of the case data for that purpose. We’ll be taking a closer look at all this in due course.

In the meantime, for a useful overview, see Bill Buchanan, via Inforrm’s blog, GDPR: ground zero for a more trusted, secure internet

and for a more poetic approach, see Paul Bernal’s tweet:

https://twitter.com/PaulbernalUK/status/1000075307662151680

 

Judiciary

Judicial devils

Before anyone gets the wrong idea… In legal circles a ‘devil’ is a legal assistant or trainee who helps an established practitioner, and the verb ‘to devil’ means to carry out a task on behalf of the senior practitioner to whom it was assigned. Drafting papers would be the classic example, but some functions such as applying for an adjournment or holding a brief in court while the main advocate appears in another, might also be included. And in the world of printing, a trade that used to share Fleet Street with the law, a devil is also an apprentice.

The judiciary have not hitherto had devils – only marshals and judicial assistants. But all that is set to change, if and when the Courts and Tribunals (Judiciary and Functions of Staff) Bill becomes law. The purpose of this Bill is to provide statutory authority for the senior judiciary to delegate certain functions in dealing with cases to assistants or minions, while retaining the authority, and indeed the duty, to determine the final outcome of cases.

According to the various policy statements that have been published (this example is from the Equalities Statement):

“HMCTS staff can already be authorised to carry out certain judicial functions and already do so in most jurisdictions. This legislation seeks to introduce a cohesive framework for authorisation, independence and accountability of staff across all court and tribunal jurisdictions, together with the safeguards they need to exercise such functions most effectively. Under the proposed changes, suitably qualified and experienced HMCTS staff can be authorised to make decisions on straightforward matters that are currently undertaken by the judiciary. We anticipate that this will mean cases can be progressed more efficiently, which is to the benefit of all court and tribunal users.”

According to the Ministry of Justice’s own press release:

“We expect authorised staff could carry out some of the more straightforward judicial functions, which includes tasks like issuing a summons; taking a plea; extending time for service of applications; or considering applications for variations of directions made in private or public law cases.”

A critical issue is compliance with Art 6 of the European Convention on Human Rights (as scheduled to the Human Rights Act 1998). This is addressed in European Convention on Human Rights memorandum

The HMCTS Reform programme was always going to need a statutory underpinning to make some of the changes involved, such as the establishment of an online court and provision for public access to video and online hearings, but the original Bill (the Courts and Prisons Bill 2016) was lost in the washup before the snap general election last year. This Bill does not seem to address all of those aspects, being largely confined to the role(s) of the judiciary and court staff, with a view to the more efficient distribution of tasks.

The first reading of the Bill took place in the House of Lords on 23 May 2018.

Changes will almost certainly have to be made to the Civil Procedure Rules as well.

UPDATE: see also, Joshua Rozenberg, in Law Society Gazette: Sitting in judgement on flexible courts

 

Courts

Civil appeals to be filmed

Both the Lord Chief Justice (as reported by Joshua Rozenberg in the Law Society Gazette) and the Master of the Rolls (as reported by Frances Gibb in The Times) have recently confirmed that cameras will soon be allowed into the civil division of the Court of Appeal, as they have been (albeit only rather tentatively, and rarely broadcast) in the criminal division for the last five years. From the point of view of open justice and transparency, this is very welcome news.

What’s different is that the plan is now to live-stream the hearing, rather than pre-recording them. Moreover, civil appeals should be subject to fewer constraints than criminal ones, which cannot be broadcast if there is any chance of a retrial (owing to the risk of prejudice). Currently, though, the relaxation in the prohibition on cameras in court does not extend to family appeals. That may change, according to the Times article quoting Sir Terence Etherton MR:

The reform will not stop there. Family appeals are excluded from the relevant broadcast regulations and Sir Terry is asking for these to be amended. “So for the first time you’re going to be able to see cases like Charlie Gard and Alfie Evans, if the secretary of state and parliament agree.”

One hopes they might. It would also boost public understanding of the law and what the courts do in such cases, instead of allowing public ignorance and misunderstanding to be exacerbated by inadequate press reporting, lack of official explanation (eg from ministers or the law officers) and the intervention of special interest groups peddling inaccurate or deliberately false information.

The change in the law was proposed by the MOJ six years ago, in May 2012 (following a pilot scheme announced eight years before that) so it is surprising it has taken so long for it actually to happen.

 

Contract

Worthy of consideration?

A new case on the law of contract, and in particular on the critical element of it known as consideration, is rare, writes Obiter J, before analysing the recent decision of the UK Supreme Court in Rock Advertising Ltd v MWB Business Exchange Centres [2018] UKSC 24;  [2018] 2 WLR 1603; [2018] WLR(D) 301 in which, sadly, the point did not need to be decided, as the case was decided on another point, as to the effectiveness of a No Oral Modification clause.

The post looks at the earlier case of Foakes v Beer (1884) 9 App Cas 605 and the panel of judges who decided it, and what it would take to disturb their decision more than a century later.

See Law and Lawyers, Contract ~ an interesting case

Case comments like this are hugely valuable to students and practitioners alike, and where we find them we add them to the Commentary tab in the ‘index card’ overview of the relevant case.

 

Dates and Deadlines

The Trinity Legal Term begins on Tuesday 5 June and ends on 31 July 2019.

BIALL Conference 2018

The annual conference of the British and Irish Association of Law Librarians will take place at the Hilton Birmingham Metropole in Birmingham on Thursday 7th – Saturday 9th June. ICLR will be there.

See full Schedule

For booking details: Registration

“Learned Friends”

Play by Ginny Davis Productions about a criminal trial, set in  in a real courtroom. £5 from every ticket sold will go towards the Red Cross Manchester Emergency Fund appeal.

Performances: 9 June (at 12:00, 14:30, and 17:00) Manchester Crown Court, Minshull Street, Manchester M1 3FS

Details via Eventbrite.

Young Bar Hub: 21st Century Advocate

Young Barristers’ Committee’s Annual Workshop, entitled, The 21st Century Advocate, takes place on Saturday 9 June 2018, at 13:30 till late.

The Workshop lasts for half a day and is aimed primarily at barristers in their first seven years of practice, and is intended to equip Young Barristers with the skills that they need to survive and thrive at the Bar – now and in the future. The Workshop includes a variety of sessions focusing on LawTech, Advocacy (tailored to Civil, Family and Crime), Wellbeing and Soft Skills, along with a keynote speech from a legal thought leader, and a panel discussion about the future of justice.

Charles Russell Speechlys, 5 Fleet Place, London EC4M 7RD. Booking details

 

Law (and injustice) from around the world

America

Legal status of Trump tweets

A federal judge in New York has ruled that President Donald Trump cannot block people from following or viewing his @realDonaldTrump Twitter account. That’s because, the judge held, the social media platform qualifies as a “designated public forum” granted to all US citizens, and blocking would be a breach of their First Amendment (free speech) rights.

“This case requires us to consider whether a public official may, consistent with the First Amendment, ‘block’ a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States,” the judge said in her opinion.
“The answer to both questions is no.”

People on Twitter are unable to see or respond to tweets from accounts that block them.
According to Clay Calvert, Brechner Eminent Scholar in Mass Communication, University of Florida, writing on Inforrm’s blog:

“Also key was the fact that the @realDonaldTrump account is used for governmental purposes. Specifically, the judge found that “the President presents the @realDonaldTrump account as being a presidential account as opposed to a personal account and, more importantly, uses the account to take actions that can be taken only by the President as President” – such as announcing the appointments and terminations of government officials.”

See BBC, Trump barred from blocking Twitter users by judge

Ireland

Constitutional amendment referendum

In a referendum held on 25 May 2018, voters in the Republic of Ireland, many of whom had travelled from abroad to take part, voted overwhelmingly to overturn what amounted to a ban on abortion. They voted “yes” by 66.4% to 33.6% to repeal the Eighth Amendment to the Constitution which had accorded equal rights to the unborn child and its mother.

According to the BBC, “A vote in favour of repeal paves the way for the Dáil (Irish Parliament) to legislate for change which would see the introduction of a much more liberal regime.”

The landslide vote defied the predictions of a much closer result, based on previously stated voter intentions: see, for example, RightsInfo’s explainer: As Ireland Prepares For a Close Vote on Abortion Rights, Here Are All The Numbers You Need to Know.

The focus now is on the continuing ban against abortion in Northern Ireland. A number of MPs have proposed that the UK government change the law without allowing the matter to remain devolved, in view of the breakdown of power sharing in Northern Ireland. There have been calls for a referendum in the North, but given the fact that Donegal, the northernmost county of the Republic, voted 51.9% against the change (the only constituency to do so), the result is by no means a foregone conclusion.

Although huge numbers of Irish women travel to the the British mainland for abortions, opposition here cannot be overlooked. Earlier this year, one clinic obtained a Public Spaces Protection Order (PSPO) to impose a 100-metre “safe zone” to keep Catholic anti-abortion protesters away. See RightsInfo, The UK’s First Abortion Clinic Protest Exclusion Zone is All About Women’s Rights

For more about the Irish referendum and its fallout, see Obiter J, Law & Lawyers blog, Abortion ~ Referendum in Ireland ~ Northern Ireland

Sweden

Silence is golden – but it isn’t consent

Sweden has now passed a law requiring consent to sex with clear verbal or physical language, saying silence is insufficient to constitute consent for the purposes of defining the law on rape. That means that rape is defined as non-consensual sex and does not require, as many other countries’ laws do, that the non-consensual sex is accompanied by violence or threats of violence in order to constitute rape.

See CNN, Sweden passes law defining sex without consent as rape

Citing Anna Blus, Amnesty International’s Women’s Rights Researcher for Europe

“Today’s vote marks a huge victory for women’s rights activists in Sweden who have been campaigning tirelessly for this change for more than a decade. By refusing to stay silent, these activists have led the charge to end sexual violence, and politicians voting today should be guided by their courage.”

For context, here is a snippet that appeared next to an article about the new law on the Swedish news site, Nordstjernan:

“In May 2017, after seven years, Sweden dropped the warrant for Julian Assange’s arrest for raping two Swedish women. The case against him revealed Sweden’s ambiguous and broad definition of rape, which is now being legally redefined with much tighter requirements for explicit consent.”

 

And finally … Tweet of the Week

comes from Mark Harrop with a prime example of #BadStockPhotosOfMyJob

 

That’s it for now. My thanks to all who led me to stories, mostly my followees on Twitter. 

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.