The Round Up: WikiLeaks and a White Paper on Online Harms

15 April 2019 by Alethea Redfern

In the News 

• On Monday last week, the government published its long-awaited white paper on online harms. The paper states that the the government will establish a new statutory duty of care on these companies to ‘take reasonable steps to keep their users safe and tackle illegal and harmful activity on their services’. A new regulator will have formidable powers and sanctions at its disposal to oversee and enforce the fulfilment of this duty. 
• The document was praised by John Naughton in the Guardian as a global first: the first time the government of a major country has attempted to regulate social media companies. He celebrates the paper’s ‘flexible and, at least to some extent, future-proof’ approach as a savvy first step on the road to online regulation. 
• Conversely, writing in The Times, Greg Hurst criticised the paper for ducking key questions and deferring decision on controversial decisions, characterising it as ‘an important tactical victory’ for social media platforms eager to evade tighter control. In particular, he noted the paper’s insistence that the regulator’s focus should be on ‘on protecting users from harm, not judging what is true or not’, a distinction he called ‘at best hard to maintain and, at worst, unsustainable.’
• Commentators across the political spectrum noted that the paper’s implications for free speech were a source of tension and alarm. The paper identifies disinformation or ‘fake news’ as one of many online harms, and says that social media platforms will be expected to use fact-checking services and take action against disseminators of misinformation. The Spectator’s Toby Young states that the proposals pose ‘an unprecedented threat to free speech and could easily be used to impose a censorious code of conduct on newspapers and magazines’; in The Guardian, Alex Hern warned that the measures might prove ‘dangerous’ by ‘creating a regulator without the power to prevent the worst abuse, but with just enough power to scare away the best innovations.’
• The intersection of online activity with freedom of expression was also brought into focus by the expulsion of WikiLeaks founder Julian Assange from the Ecuadorean embassy on Thursday. Mr Assange faces charges of sexual assault and criminal theft of US state secrets, and the possibility of a US prison sentence, after Ecuador revoked his asylum and allowed officers from Scotland Yard to remove him from the premises. 
• A leading article in the Sunday Times argued that Mr Assange’s fate should be left to the courts. Elsewhere, however, Ed Pilkington focused on the indictment’s ‘potentially devastating effect on the basic acts of journalism’. The attitude of many commentators and advocacy groups can be summed up in these words, from a statement by the Freedom of the Press Foundation: ‘Whether or not you like Assange, the charge against him is a serious press freedom threat and should be vigorously protested.’

In Other News

• On Thursday, Omar al-Bashir, the military officer who took power in Sudan in 1989, was overthrown. Mr Bashir is the subject of an international arrest warrant issued by the International Criminal Court (ICC), which accuses him of organising war crimes and crimes against humanity in Sudan’s western Darfur region. While the Sudanese people have celebrated the toppling of a regime that has overseen decades of brutal repression and a desperate economic crisis, it remains unclear whether the generals behind the military coup intend to hand power over to civilian rule. 
• In a decision described as a ‘devastating blow for victims’, the ICC has rejected a request to investigate war crimes and crimes against humanity in Afghanistan, citing a lack of cooperation from the US, Afghan authorities and the Taliban. 

In the Courts

• Miller and Others v The United Kingdom [2019] ECHR 285 (11 April 2019): The applicants complained that under Article 3 of Protocol No. 1 to the Convention that as convicted  prisoners in detention they had been subject to a blanket ban on voting in elections. The ECHR unanimously declared the applications admissible, and held that the finding of a violation alone was sufficient satisfaction for the applicants. 
• Vedanta Resources PLC and another (Appellants) v Lungowe and others (Respondents) [2019] UKSC 20: The Supreme Court heard a procedural appeal about the jurisdiction of the English courts in relation to a group tort claim. The claimants (the respondents to this appeal) are approximately 1,826 Zambian citizens who allege their health and farming activities have been damaged by toxic emissions from the Nchanga Copper Mine into the waterways upon which they rely for drinking water and crop irrigation. The United Nations has recognised access to clean drinking water as an essential human right; this case also engages Article 6 (the right to a fair trial), Article 1 (the right to the peaceful enjoyment of one’s own property) and potentially Article 2 (the right to life). The court found that England was not the ‘proper place’ for the proceedings. However, since there was a real risk that substantial justice would not be obtainable in a more appropriate foreign jurisdiction, namely Zambia, this finding was academic. 
• Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661: The Court of Appeal heard two separate appeals brought by the Secretary of State against decisions of the Upper Tribunal, which found that the public interest did not require the removal of either Respondent, on the ground of Article 8 (the right to respect for family life). The court found that AB, a father who saw his son three times a week to assist with homework, had a ‘genuine and subsisting relationship’. AO, a father who was only permitted ‘indirect contact’ with his son, did not. The Secretary of State’s appeal was dismissed in the case of AB and allowed in the case of AO. 

On the UKHRB:

• Jeremy Hyam QC encourages the GMC and the medical profession to reflect as Dr Bawa Garba, a paediatrician convicted of gross negligence manslaughter in November 2015, returns to work. 
• Charlotte Gilmartin summarises and discusses the Court of Appeal’s judgement in Boyd  Anor v Ineos Upstream Ltd & Ors [2019] EWCA Civ 515, in which it considered whether a ‘persons unknown’ injunction would have a ‘chilling effect’.