UKHRB Round Up 17 to 24 February: Human Rights in Cyberspace

27 February 2020 by Alethea Redfern

In the News 

The intersection between technology and human rights is growing exponentially. In places, the growth is immensely productive. The internet has become integral to how we communicate in moments of historic crisis and transformation. Social networks have played a complex and contradictory role in pivotal episodes from the Arab Spring to #MeToo. For more than three billion people, the internet directly facilitates access to news and information, religion and politics, markets and trade, and even justice. In this country, half the population gets their news from social media. In 2016, a report from the Human Rights Council of the United Nations General Assembly declared access to the internet to be a basic human right. This blog post is itself both byproduct and contributor to the phenomenon. 

But the growth has been rapid, uncontrolled and, at times, malignant. In a recent paper on online disinformation and political discourse, Kate Jones identifies online distortions to electoral and political processes which threaten to undermine democracy and facilitate non-compliance with existing human rights law. As well as examining impact on elections in England and the United States, Jones cites Facebook’s contribution to the genocide in Myanmar, a resurgence of intercommunal violence in Sri Lanka, and misinformation in India [p.14]. The Facebook-Cambridge Analytica scandal in early 2018 revealed that millions of people’s private data had been harvested without their consent. Earlier this month, the Met’s decision to begin operational use of facial recognition technology raised wider concerns among groups including Amnesty International and Liberty about the balance to be struck between enforcement and civil liberties. 

A number of stories published between Monday 17 and Monday 24 February are indicative of the possibilities and problems posed by digital platforms and technologies. 

The most high-profile of these stories was the death of the Love Island presenter Caroline Flack. Almost 30 complaints about the Mail Online have been made to the  Independent Press Standards Organisation after it shared details of her death in a manner described as “reckless, irresponsible and dangerous.” Aside from prompting calls for stricter press regulation to safeguard the health and human rights of people in the public eye, and concerns among barristers about the way the justice system deals with vulnerable defendants, attention has been drawn to the fact that Flack’s decision to take her own life was made in the face of virulent and sustained online abuse by members of the public. In response, a spokesperson for Number 10 has called on social media firms to “go further” to remove unacceptable content from their platforms. Labour leadership contenders Kier Starmer and Lisa Nandy were among those who expressed their disquiet over the  current social media situation. The incident has drawn attention to the fact that women, and women of colour in particular, are disproportionately targeted for online abuse, and that this has a stifling effect on freedom of expression. 

In a strange parallel, the UN’s special rapporteur on torture will present a report to the UN human rights council in Geneva later this month highlighting his fears over the development of psychological cybertorture to circumvent the more widely understood ban on the physical infliction of pain. Rapporteur Nils Melzer expressed his concern that the internet could become a medium for systematic, government-sponsored threats and harassment to inflict levels of levels of anxiety, stress, shame and guilt amounting to ‘severe mental suffering’ sufficient for a finding of torture.

Developments in technology have the potential to give users access to information, opportunities and communication platforms free from geographic borders and socio-economic borders. However, in many areas, lines need to be drawn. Should employers be able to install computer monitoring software or motion devices to check whether desks are in use? How can individuals be protected from public malice or state interference? How do we balance the legitimate and effective use of online surveillance to keep citizens safe against those same citizens’ civil liberties? As yet, the government’s initial response to online harms leaves many issues unclear or undecided. 

In Other News 

• After an emergency ruling by the Court of Appeal prevented the authorities from removing anyone from the UK who had been held at two detention centres near Heathrow airport, Harmondsworth and Colnbrook, where there had been a problem with the O2 phone network in the weeks before. The Home Office has now agreed to release information as to whether any detainees removed from the UK since 3 February had not been able to contact their lawyers by phone prior to deportation.
• Concerns have been raised that the government’s new points-based immigration policy blueprint has the potential to create injustice, but also drive up wages, create labour shortages, increase prices for consumers and put low-wage sectors at risk. 
• Downing Street’s decision to appoint Suella Braverman, barrister and MP for Fareham, to replace Geoffrey Cox QC as Attorney General, has been met with some consternation among legal professionals. Writing in the Law Society Gazette, Jemma Slingo states that “the former Brexit minister’s quoted views on the judiciary have stoked fear” that the government will try to curtail judicial independence during her tenure. Last month Braverman called for politicians to end a ‘chronic and steady encroachment by the judges’.

In the Courts 

• Sherwood Forest Hospitals NHS Foundation Trust & Anor v H (Rev 1) [2020] EWCOP 6 (03 February 2020) and Cardiff & Vale University Health Board v P [2020] EWCOP 8 (21 February 2020): In the Court of Protection, Mr Justice Hayden heard two cases in which uncertainty over the proper application of the Mental Capacity Act 2005 contributed to delays in medical treatment with appalling consequences for patients unable to communicate their distress or properly respond to their diagnosis. Mr Justice Hayden described himself as being “struck that this is the second time in the last few months” when he had heard a case which revealed that a vulnerable person had been permitted to suffer avoidably for many months. 
• Haskell v Haskell [2020] EWFC 9 (13 February 2020): In a case notable for its nastiness, Mr Justice Mostyn has ordered a tycoon to pay his former wife almost £6 million. Mr Justice Mostyn expressed his shock at Mr Preston Haskell’s “ever-increasing [and] insidious coercive control,” and desire to deny one of the couple’s three children any access to a trust fund on the “perverse and unreasonable” basis of her profound impairment.
• A & Anor, R (On the Application Of) v South Kent Coastal CCG & Ors [2020] EWHC 372 (Admin) (21 February 2020): The High Court gave permission to apply to judicially review the decision of the Clinical Commissioning Groups responsible for healthcare services in Kent to de-commission acute stroke services at Queen Elizabeth the Queen Mother Hospital (QEQM) in Thanet, Kent. The claimants argued, inter alia, that the decision had placed the burden of increased journey times on people living in one of England’s most deprived regions, whose socio-economic situation made them more likely to suffer strokes and less able to afford travel costs. Additionally, the fairness of the consultation process was questioned. Permission was granted on these two grounds, but refused on the other six. 
• PS (Christianity – risk) Iran CG [2020] UKUT 46 (IAC): The Upper Tribunal held it was safe for a purported convert to Christianity to return to Iran. It found that the situation for Christians in Iran has deteriorated drastically since the last guidance was published, so that Christians had a well-founded fear of persecution and severe violations of their religious freedom. However, disingenuous ‘converts’ would not often be at any such risk of harm. 
• R (on the application of DN (Rwanda)) (Appellant) v Secretary of State for the Home Department (Respondent) [2020] UKSC 7: The Supreme Court unanimously allowed an appeal by DN, a Rwandan national granted refugee status in the UK in 2000. After committing a number of offences, the Secretary of State ordered DN’s deportation on the basis that he had committed serious crimes within the meaning of the Asylum Act 2004. DN brought a claim for judicial review of this order, which was dismissed by the Court of Appeal. The Supreme Court held that DN’s  detention for the purpose of deportation was unlawful, since the deportation order was unlawful, since the 2004 Act on which the order was based had been ruled unlawful in EN (Serbia).
• RT & Anor, R. v [2020] EWCA Crim 155 (13 February 2020): The Court of Appeal held that a trial judge had been entitled to continue a trial in circumstances where a  troubled 16-year-old prosecution witness with ADHD became distressed and refused to continue to give evidence. On the facts, the defendant had not been denied a fair trial and the convictions were safe. 
• McGuinness, Re Application for Judicial Review (No 2) (Northern Ireland) [2020] UKSC 6: The Supreme Court unanimously held that judicial review proceedings concerning the treatment of Mr Michael Stone did not constitute a “criminal cause or matter” and therefore the Court did not have jurisdiction to consider the appeals. Mr Stone was convicted of the murders of several mourners at Milltown Cemetary, Belfast in 1988. In 2000, he was released on license early under the Belfast Agreement 1998, but committed further offences at Parliament Buildings, Stormont, in 2006. Judicial review proceedings were brought by the sister of one of Mr Stone’s 1998 victims when the Prison Service ruled his tariff expiry date would be 21 March 2018, taking into account the period during which Mr Stone was released on licence. 

On the UKHRB 

• In the most recent episode of Law Pod UK, Anthony Metzer QC discusses his groundbreaking use of the secular law on coercive and controlling behaviour to persuade a recalcitrant husband to grant his wife a Jewish religious divorce or “get”. 
• Guest Contributor John Butcher offers a survey of the importance of patents in the difficult and fast-moving area of biotechnology. 
• Alice Irving takes an extended look at the significance of the case of R (Miller) v The College of Policing & The Chief Constable of Humberside [2020] EWHC 225 (Admin), which arose out of an individual’s use of Twitter to share anti-trans views. 
• Rosalind English presents a transcript of the response of Vice-President of the Strasbourg Court Robert Spano’s response to Jonathan Sumption’s Reith Lectures. An audio recording will be published on Law Pod UK in due course. 
• Rosalind English overviews the recent decision of AG Kokott at the European Court of Justice on the question of whether wolves should be subject to the protection of EU rules regarding listed species. 
• Elliot Gold assesses a recent decision of the ECHR in which it was reiterated that a failure by member states to protect women from domestic violence is likely to breach the prohibition against degrading and inhumane treatment under Article 3.