The Weekly Round-Up: Questions over Meta’s VR child protection policies, and the ethics of banning sexual entertainment venues

17 January 2022 by

In the news:

Mark Zuckerberg’s Meta platform is under pressure from the UK’s data watchdog, the Information Commissioner’s Office (ICO), over reports that their latest virtual reality headset, the ‘Oculus Quest 2’, does not have adequate parental controls, exposing children to harmful content. The ICO said it will investigate whether it violates the so-called ‘Children’s Code’, a set of regulations introduced in the UK four months ago which seeks to protect children online. The campaign group, Centre of Countering Digital Hate (CCDH), conducted research on the device, finding frequent instances of inappropriate behaviour on the app often used by Oculus Quest 2 players, VRChat. This included two ‘heavily breathing’ men following a child’s avatar, and another man joking that he was ‘a convicted sex offender’. If Meta has breached the code, it could be fined up to £2.5bn. However, it is unclear whether the device will be found to have breached the Code even if insufficient parental controls are in place, given that the regulations largely focus on the misuse of data, rather than the content children are exposed to on apps.

In other news:

  • The UK Government is being sued again by the climate campaign groups ClientEarth and Friends of the Earth, who argue that the government’s net zero policy has contravened the Climate Change Act in failing to include policies which demonstrate how the target will be met. The Act requires that such policies be set out as soon as ‘reasonably practicable’ after the targets are set. The groups argue this has not be fulfilled, as the strategy published four months ago seems largely to rely on new and unproven technology such as zero-carbon aviation fuels. Friends of the Earth also claim in the court papers that the Human Rights Act would be contravened by the government’s failure to meet their carbon budgets, as this would impact on young people’s right to life and to family life (Articles 2 and 8 respectively).
  • Bristol County Council is set to make a decision on whether to ban all sexual entertainment venues (such as strip clubs) from the city after a 12-week consultation on the proposed ban concluded on Monday. This would require all such venues to close, and prevent any others from opening. The Police and Crime Commissioner of Avon and Somerset Council, Mark Shelford, is promoting the ban, arguing that these venues are complicit in enabling violence against women and girls to continue. However, a petition to prevent the ban has been signed by over 7,000 people, with many arguing that these clubs provide a safe environment for women working in the industry, and that the proposed ban would be likely to send the work underground to private locations such as hotels, where women would have very little protection.
  • The CPS launched a public consultation on Friday to consider new legal guidance for prosecutors on homicide offences which involve suicide pacts or mercy killings, to ensure that charges are in the public interest. The new guidance suggests that prosecution would be less likely where the suspect was ‘wholly motivated by compassion’, attempted suicide themselves, fully assisted the authorities, and where the victim reached a ‘voluntary, settled and informed decision to end their life’. Factors which would tend to make prosecution more likely were that the victim lacked capacity to make decisions about whether to end their life, that they were under 18, and where there was a history of abuse by the suspect. The CPS clarified that this will have no impact on cases of assisted dying, which are covered by a separate law.

In the courts:

  • London Borough of Barking and Dagenham & Anor v Persons Unknown & Ors [2022] EWCA Civ 13The Court of Appeal overturned the decision of the High Court, finding that the court can issue final injunctions against people who might set up unauthorised encampment of local council land in the future, even where the people were unidentified at the date of the order. This means that using the powers under under section 187B of the Town and Country Planning Act 1990, final preventative injunctions can be issued against people who are not actually a party to the case. The facts concerned three groups who described themselves as Romani Gypsies, Irish Travellers, and New Travellers, who the Barking and Dagenham local authority wanted to prevent setting up an unauthorised encampment. Importantly, in allowing the appeal, Master of the Rolls, Sir Geoffrey Voss, found that the Canada Goose authority relied on by the previous court should be limited in its application to so-called ‘protestor injunctions’, and, in any event, should not be followed as it misinterpreted and failed properly to recognise earlier Court of Appeal authorities. The Master of the Rolls considered that this might seem to enable similar orders to be made ‘against the world’, but found that the court should not seek to limit the type of injunctions that may be appropriate in future cases.
  • MOC v Secretary of State for Work And Pensions [2022] EWCA Civ 1: The Court of Appeal dismissed the appeal of the Claimant, a severely disabled man, who argued that the suspension of Disability Living Allowance after a person spends 28 days in hospital (‘the Rule’) unlawfully discriminated against him, contrary to Article 14 of the European Convention on Human Rights, when read with Article 1 of the First Protocol, which protects the right to peaceful enjoyment of possessions. The Claimant argued that the Rule should be suspended for those who lack capacity, because hospitalisation did not stop his carer from needing to look after his interests and advocate on his behalf. As the Claimant alleged indirect discrimination, the relevant test was whether the Rule affected ‘… a disproportionate number of members of a group of persons sharing a characteristic which is alleged to be the ground of discrimination.’ The Claimant also needed to demonstrate that a lack of capacity could be a ‘status’ under Article 14. The claim failed on both counts, with the court holding that a lack of capacity could not be a ‘status’ within Article 14 as it was liable to change frequently, and thus could not be a stable concept as required. Furthermore, as a matter of fact, the Claimant failed to demonstrate that multiple members of a group were affected by the Rule, as no evidence was put before the court on that matter. Finally, the court found that even if status and indirect discrimination were proved, the Rule was proportionate, as it had an objective and reasonable basis, largely to prevent a duplication of public funding for the same purpose.
  • Detention Action, R (On the Application Of) v Lord Chancellor [2022] EWHC 18 (Admin): Mr Justice Calver dismissed the judicial review claim brought by the campaign group Detention Action against the government, finding that the Detention Duty Advice Surgery (DDAS), a free 30 minute consultation offered to immigration detainees, was not unlawful. The Claimants argued that the Secretary of State had breached his duty under section 1 and 3 of the Legal Aid, Sentencing, and Punishment of Offenders Act 2012, in failing to adequately set and monitor the standards of legal aid provided through the DDAS scheme, creating an impediment to detainees having effective access to the courts. In particular, it was alleged that many of the law firms hired by the scheme were inadequate, often having little or no experience of immigration law, and thus giving incompetent advice. However, Mr Justice Calver found that the Claimants had not demonstrated that there was a real risk of impediment of access to legal aid caused by the monitoring scheme of the Defendant, and that the likely effect of the monitoring standards was in fact ‘to prevent or mitigate the risk of such impediments’.

On the UKHRB:

  • Rosalind English and Emma-Louise Fenelon sum up some of the best human rights stories from 2022 in the latest LawPodUK episode.

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