Round Up- Fried eggs, Facebook, and the right to choose one’s counsel
26 March 2018
Conor Monighan brings us the latest updates in human rights law
In the News:
The consultancy company Cambridge Analytica has come under fierce criticism for its treatment of Facebook users’ data. A whistle-blower, Christopher Wylie, alleged that Cambridge Analytica had gathered large amounts of data through a personality quiz, posted in Facebook, called ‘This is Your Digital Life’. Users were told the quiz was collecting data for research.
However, when users filled out the quiz it allegedly also took data from their friends. Wylie claims that 50 million users had their data taken without their explicit consent. This information was analysed and then, says Wylie, used to bombard users with targeted advertising for the Trump campaign.
The Information Commissioner, Elizabeth Denham, applied for a warrant to search Cambridge Analytica’s offices on Monday, but the hearing was adjourned until Friday. A debate about the sufficiency of the Commissioner’s powers then ensued.
Channel 4 secretly filmed the chief executive of Cambridge Analytica, Alexander Nix, who suggested the company used dirty tactics to discredit politicians. Nix also claimed the firm was responsible for large parts of Trump’s campaign, particularly digital work. He has since resigned and the firm has been suspended from Facebook. The company maintains there has been no wrongdoing.
The quiz app was created by Dr Aleksandr Kogan, from the University of Cambridge. Kogan says he is being made a ‘scapegoat’ by the firm and by Facebook.
Facebook has been embroiled in the scandal. Its share value has plummeted, wiping about $58 billion from its value. IBSA, which represents a number of major UK advertisers, expressed real concerns about how the social media giant had allowed users’ data to be accessed.
In light of “misleading” evidence given by Facebook’s employees, Mark Zuckerberg (CEO and founder of Facebook) has been called to give evidence before a parliamentary committee. US senators have also called on Zuckerberg to testify before Congress.
Zuckerberg has released a statement on Facebook promising change and a review of suspicious apps. He also suggested that in the future the amount of data shared by individuals would be limited.
In Other News….
- The Metropolitan Police has admitted it gave information to a network that blacklisted construction officers. The list detailed the political activities of potential employees, with a particular focus on trade union involvement. It was then accessed by companies seeking to hire workers. Individuals who were unfairly barred from jobs have already received millions of pounds in compensation, with Unite alone reaching an agreement worth over £10 million. It has taken 6 years for the police force to admit its involvement in the scheme, which affected over 3000 workers. An internal investigation concluded there had been a “materially improper flow of information from Special Branch to external organisations”.
- A suspect from the Texas Austin bombings case blew himself up when police tried to arrest him. Three parcel bombs and a trip-wire device exploded over the course of 17 days earlier this month, and this week another detonated at a FedEx facility. CCTV from the building led police to the suspect. At first, there was a suspicion the acts were racially motivated, but the profile of subsequent victims suggests otherwise. The motive of the individual is unclear.
In the Courts:
- Sinkova v Ukraine: A conviction for frying an egg over the flame of a war memorial did not violate Article 10 (freedom of expression). The applicant sought to highlight what she saw as the wasteful use of natural gas at monuments when war veterans suffered a poor standard of living. The Forth Section of the European Court was divided (4:3) but found there was no violation of Article 10. The majority found the interference with freedom of expression was based on a sufficiently defined reason, a legitimate aim of protecting morals and the rights of others, and was necessary in a democratic society. The minority, however, thought that careful examination had not been afforded to the applicant in view of the fact she was performing for the purposes of satire. It therefore thought Article 10 had been violated. The applicant also made a claim under Article 5, claiming her pre-trial detention had violated her right to liberty. This was unanimously upheld by the court, which found the grounds for maintaining her detention were insufficient. It also found the right to compensation for the unlawful deprivation of liberty was not met.
- Reverend Canon Pemberton v Right Reverend Inwood: The Court of Appeal rejected a Canon’s claim of direct discrimination on the basis of sexual orientation and/ or martial status. The appellant, the Reverend Canon Pemberton, married his same sex partner in April 2014. As a result, the respondent revoked the Canon’s Permission to Officiate (PTO) and declined to grant him an Extra Parochial Ministry Licence (EPML). The employment tribunal held that whilst a PTO is not a “relevant qualification” for the purposes of s.53, a EPML is. This is because the licence was a condition of being employed by the NHS trust in question. However, the claim still failed because the Bishop was able to rely upon the defence in Schedule 9 paragraph 2 of the Equality Act. In the Schedule, discrimination on the grounds of sexual orientation is permitted if it is to comply with the doctrines of a religion. It was not necessary to have an express provision stating priests were prohibited from entering a same-sex marriage and explaining the consequences of doing so. The teaching was clear. Employment tribunal finding upheld, and appeal dismissed.
- In the matter of Alfie Evans Permission to appeal determination: The Supreme Court refused to grant permission to appeal to the parents of Alfie Evans, the seriously ill child (see our previous post on the Alfie Evans case). Mr Justice Hayden had previously determined it was no longer in Alfie’s best interests for ventilation to be provided to him. The Court of Appeal agreed. When applying to the Supreme Court, the parents argued it was wrong for the issue to be determined only by reference to the child’s best interests. They also claimed a breach of Article 8 (right to enjoyment of a family life). The Supreme Court rejected both arguments, holding the Children Act reflects international instruments, particularly the UN Convention on the Rights of the Child. The parents are considering whether to apply to the ECHR.
- Re Maguire’s application for judicial review: Article 6.3(c) states every person charged with a criminal offence has the right to defend himself in person or through legal assistance of his own choosing. The Supreme Court found the relevant ECHR case law emphasises adequacy of representation over freedom of choice as to the identity of council, and the key point is that the legal representation should be conducive to a fair trial. Article 6 of the ECHR does not enable individuals to have a counsel of their choice at public expense, independently of the requirements of the interests of justice. Rather, the right to choose one’s counsel is part of the overall aim to have a fair trial. Whilst defendants do have the right to be represented by sufficiently experienced counsel of their choice, they cannot dictate the role to be played by the defendant (as Mr Maguire wished to do). Therefore, Mr Maguire could not demand the junior counsel act as lead counsel in his re-trial. Appeal dismissed.
On the UKHRB
Poison is topical in the blog this week: nerve agents in the news and platinum salts in the lungs. Sophie Walker has written an article on immigration detention, arguing that new legislation removes accommodation provision for vast numbers of detainees and will increase the numbers being detained. Rosalind English has posted about Dryden and Others v Johnson Matthey, and there are three new podcasts for Law Pod, including one posted this morning featuring Jo Moore who discusses the case of the women who have successfully argued that being forced into prostitution during their teenage years should not be a disclosable conviction in later applications for employment.
- Terrorism, Policing & Human Rights: The Human Rights Lawyers’ Association, 10th April at The Law Society, London. Special guest speaker Cressida Dick, Commissioner of the Metropolitan Police.
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