A week not to be forgotten….

…for those of us interested in the right to be forgotten. I’ve found myself writing and talking to people about it unlike any time before. Privacy is becoming bigger and bigger news – and I have a strong feeling that the Snowden revelations influenced the thinking of the ECJ in last week’s ruling, subconsciously if nothing else. That should not be viewed as a bad thing – quite the opposite. What we have learned through Edward Snowden’s information should have been a wake-up call for everyone. Privacy matters – and the links between the commercial gathering and holding of data and the kind of surveillance done by the authorities are complex and manifold. If we care about privacy in relation to anyone – the authorities, businesses, other individuals, advertisers, employers, criminals etc – then we need to build a more privacy-friendly infrastructure that protects us from all of these. That means thinking more deeply, and considering more radical options – and yes, that even means the right to be forgotten, for all its flaws, risks and complications. More thought is needed, and more action – and we must understand the sources of information here, the nature of those contributing to the debate and so forth.

Anyway, this isn’t a ‘real’ blog post about the subject – I’ve done enough of them in the last week. What I want to do here is provide links to what I’ve written and said in the last week, as well as to my academic contributions to the subject, both past and present, and then to link to Julia Powles’ excellent curation of the academic blogs and articles written by many people in the aftermath of the judgment.

Here’s what I’ve written:

For CNN, a summary of the judgment and its implications, written the same day as the judgment.

For the Justice Gap, a day later, looking at the judgment in context and asking whether it was a ‘good’ or a ‘bad’ thing for internet freedom.

My interview for CBC (Canada)’s Day 6 programme – talking about the implications, and examining the right for a non-European audience.

For my own blog, looking at Google’s options for the future and suggesting that the judgment isn’t the end of the world

Also for my own blog, a day later, trying to put the judgment into context – it’s not about paedophiles and politicians, and it won’t be either a triumph or a disaster.

This last piece may in some ways be the most important – because already there’s a huge about of hype being built up, and scare stories are being leaked to the media at a suspiciously fast rate. There are huge lobbies at play here, particularly from the ‘big players’ on the internet like Google, who will face significant disruption and significant costs as a result of the ruling, and seem to want to make sure that people view the conflict as one of principle, rather than one of business. People will rally behind a call to defend freedom of expression much more easily than they will behind a call to defend Google’s right to make money, particularly given Google’s taxation policies.

Then here are my academic pieces on the subject.

‘A right to delete?’ from 2011, for the European Journal of Law and Technology. This is an open access piece, suggesting a different approach.

‘The EU, the US and the Right to be Forgotten’, published in early 2014, a chapter in a Springer Book on data protection reform, arising from the CPDP conference in Brussels 2013. This, unfortunately, is not open access, but a chapter in an expensive book. This does, however, deal directly with some of the lobbying issues.

The right to be forgotten – and my particular take on it, the right to delete, is also discussed at length in my recently released book, Internet Privacy Rights. There’s a whole chapter on the subject, and it’s part of the general theme.

Finally, here’s a link to Julia Powles’ curation of the topic. This is really helpful – a list of what’s been written by academics over the last week or so, with a brief summary of each piece and a link to it. Some of the academics contributing are from the very top of the field,  including Viktor Mayer-Schönberger, Daniel Solove and Jonathan Zittrain. All the pieces are worth a read.

This subject is far from clear cut, and the debate will continue on, in a pretty heated form I suspect, for quite some time. Probably the best thing that could come out of it, in my opinion, is some more impetus for the completion of the data protection reform in the EU. This reform has been struggling on for some years, stymied amongst other things by intense lobbying  by Google and others. That lobbying will have to change tack pretty quickly: it’s no longer in Google’s interests for the reform to be delayed. If they want to have a more ‘practical’ version of the right to be forgotten in action, the best way is to be helpful rather than obstructive in the reform of the data protection regime. A new regime, with a well balanced version of the right incorporated, would be in almost everyone’s best interests.

The Right to be Forgotten: Neither Triumph Nor Disaster?

“If you can meet with triumph and disaster
And treat those two imposters just the same”

Kipling_ndThose are my two favourite lines from Kipling’s unforgettable poem, ‘If’. They have innumerable applications – and I think another one right now. The Right to be Forgotten, about which I’ve written a number of times recently, is being viewed by some as a total disaster, others as a triumph. I don’t think either are right: it’s a bit of a mess, it may well end up costing Google a lot of time, money and effort, and it may be a huge inconvenience to Data Protection Authorities all over Europe, but in the terms that people have mostly been talking about it, privacy and freedom of expression, it seems to me that it’s unlikely to have nearly as big an impact as some have suggested.

Paedophiles and politicians – and erasure of the past

Within a day or two of the ruling, already the stories were coming out about paedophiles and politicians wanting to use the right to be forgotten to erase their past – precisely the sort of rewriting of history that the term ‘right to be forgotten’ evokes, but that this ruling does not provide for. We do need to be clear about a few things that the right will NOT do. Where there’s a public interest, and where an individual is involved in public life, the right does not apply. The stories going around right now are exactly the kind of of thing that Google can and should refuse to erase links to. If Google don’t, then they’re just being bloody minded – and can give up any claims to be in favour of freedom of speech.

Similarly, we need to be clear that this ruling only applies to individuals – not to companies, government bodies, political parties, religious bodies or anything else of that kind. We’re talking human rights here – and that means humans. And, because of the exception noted above, that only means humans not involved in public life. It also only means ‘old’, ‘irrelevant’ information – though what defines ‘old’ and ‘irrelevant’ remains to be seen and argued about. There are possible slippery slope arguments here, but it doesn’t, at least on the face of it, seem to be a particularly slippery kind of slippery slope – and there’s also not that much time for it to get more slippery, or for us to slip down it, because as soon as the new data protection regime is in place, we’ll almost certainly have to start again.

We still can’t hide

Conversely, this ruling won’t really allow even us ‘little people’ to be forgotten very successfully. The ruling only allows for the erasure of links on searches (through Google or another search engine) that are based on our names. The information itself is not erased, and other forms of search can still find the same stories – that is, ‘searches’ using something other than a search engine, and even uses of search engines with different terms. You might not be able to find stories about me by searching for ‘Paul Bernal’ but still be able to find them by searching under other terms – and creative use of terms could even be automated.

There already are many ways to find things other than through search engines – whether it be crowdsourcing via Twitter or another form of search engine, employing people to look for you, or even creating your own piece of software to trawl the web. This latter idea has probably occurred to some hackers, programmers or entrepreneurs already – if the information is out there, and it still will be, there will be a way to find it. Stalkers will still be able to stalk. Employers will still be able to investigate potential employees. Credit rating agencies will still be able to find out about your ancient insolvency.

…but ‘they’ will still be able to hide

Some people seem to think that this right to be forgotten is the first attempt to manipulate search results or to rewrite history – but it really isn’t. There’s already a thriving ‘reputation management’ industry out there, who for a fee will tidy up your ‘digital footprint’, seeking out and destroying (or at least relegating to the obscurity of the later pages on your search results) disreputable stories, and building up those that show you in a good light. The old industry of SEO – search engine optimisation – did and does exactly that, from a slightly different perspective. That isn’t going to go away – if anything it’s likely to increase. People with the power and knowledge to be able to manage their reputations will still be able to.

On a slightly different tack, criminals and scammers have always been able to cover their tracks – and will still be able to. The old cat-and-mouse game between people wanting to hide their identity and people wanting to uncover those hiding them will still go on. The ‘right to be forgotten’ won’t do anything to change that.

But it’s still a mess?

It is, but not, I suspect, in the terms that people are thinking about. It will be a big mess for Google to comply, though stories are already going round that they’re building systems to allow people to apply online for links to be removed, so they might well already have had contingency plans in place. It will be a mess for data protection agencies (DPAs), as it seems that if Google refuse to comply with your request to erase a link, you can ask the DPAs to adjudicate. DPAs are already vastly overstretched and underfunded – and lacking in people and expertise. This could make their situation even messier. It might, however, also be a way for them to demand more funding from their governments – something that would surely be welcome.

It’s also a huge mess for lawyers and academics, as they struggle to get their heads around the implications and the details – but that’s all grist to the mill, when it comes down to it. It’s certainly meant that I’ve had a lot to write about and think about this week….


It’s not the end of the world as we know it….

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Over the weekend, I was asked by CNN if I would be able to write something about the ruling that was due on the right to be forgotten – it was expected on Tuesday, they told me. I said yes, partly because I’m a bit of a sucker for a media gig, and partly because I thought it would be easy. After all, we all knew what the CJEU was going to say – the Advocate-General’s opinion in June last year had been clear and, frankly, rather dull, absolving Google of responsibility for the data on third party websites and denying the existence of the right to be forgotten.

On Monday, which was a relatively free day for me, I drafted something up on the assumption that the ruling would follow the AG’s opinion, as they generally do. On Tuesday morning, however, when the ruling came out, all hell broke loose. When I saw the press release I was doing a little shopping – and I actually ran back from the shops straight home to try to digest what the ruling meant. I certainly hadn’t expected this – and I don’t know anyone in the field who had. The ruling was strong and unequivocally against Google – and it said, clearly and simply, that we do have a right to be forgotten.

I rewrote the piece for CNN – it’s here – and the main feeling I had was that this would really shake things up. I still think that – but that this isn’t the end of the world as we know it, despite some pretty apocalyptic suggestions going around the internet.

On the positive side, the ruling effectively says that individuals (and only individuals, not corporations, government bodies or other institutions) can ask Google to remove links (and not the stories themselves) that come up as a result of searches for their names. It’s a victory for the individual over the corporate – in one way. The most obvious negative side is that it could reduce our ability to find information about other individuals – but there are other risks attached too. Most of those concern what Google does next – and that’s something which, for the moment, Google seem to be keeping very close to their chest.

On the surface, Google’s legal options seem very limited – there’s no obvious route of appeal, as the CJEU is the highest court. If they don’t comply, they could find themselves losing case after case after case – and there could be thousands of cases. There are already more than 200 in Spain alone, and this ruling effectively applies throughout Europe. If they do choose to comply, how will they do so? Will they create a mechanism to allow individuals to ask for things to be unlinked automatically? Will they ‘over-censor’ by taking things down at a simple request – they already do something rather like that when YouTube videos are accused of breaching copyright?

My suspicion that one thing they will do is to tweak their algorithm to reduce the number of possible cases – they will look at the kinds of search results that are likely to trigger requests, and try to reduce those automatically. That could mean, for example, setting their systems so that older stories have even less priority than before – producing an effect similar to Viktor Mayer-Schönberger’s ‘expiry dates’ for data, something that in my opinion might well be beneficial in the main. It could also mean, however, placing less priority on things like insolvency actions (the specific case that the ruling arose from was about debts) or other financial events, which would not have such a beneficial effect. Indeed, it could well be seen as detrimental.

The bigger risk, however, is to Google’s business model. Complying with this ruling could end up very costly – it effectively asks Google to make a kind of judgment call of privacy vs public interest, and making those kinds of calls is very difficult algorithmically. It might mean employing people – and people are expensive and slow… and reduce profits.  Threatening Google’s business model doesn’t just threaten Google’s shareholders – it threatens the whole ‘free services for data’ approach to the net, and that’s something we all (in general) benefit from. I don’t currently think this threat is that big – but we’re still digesting the possibilities, I think.

One other possible result – in the longer term – which I would hope to see (though I’m not holding my breath) is less of a reliance on search, and on Google in particular. There are other ways to find information on the internet, ways that this ruling would not have an impact on. One of the most direct is crowdsourcing via something like Twitter – these days I get more of my information through Twitter than I do through Google. If you have a body of informed, intelligent and helpful people out there who are scouring the internet for information in their own particular way, they can supply you in a very different way to Google. They can bypass the filters that Google already put in place, and the biases that Google has (but pretends not to have) – with your own connections there are of course other biases but they’re more obvious and out in the open.

Indeed, I would also hope that this ruling is the start of our having a more objective view of what Google is – though the reactions of some that this ruling is the end of the world suggest rather the opposite. Further, we should start to think more about the kind of internet we want to have – and how to get it. I would hope that those bemoaning the censorship that this ruling might bring are equally angry about the censorship that our government in the UK, and many others around the world, have already brought in inside the Trojan Horse of ‘porn filters’. That kind of censorship, in my opinion, offers far more of a threat to freedom of expression than the idea of a right to be forgotten. If we’re really keen on freedom of expression, we should be up in arms about that – but we mostly seem to be acquiescing to it with barely a murmur.

What this ruling actually results in is yet to be seen – but if we’re positive and creative it can be something positive rather than something negative. It should be seen as a start, and not an end.

When is a ‘libertarian’ not a libertarian?

…when it’s a Kipper?

A couple of days ago, blogger Michael Abberton  got a visit from the police. As reported in the Guardian:

“He was told he had not committed any crimes and no action was taken against him, but he was asked to delete some of his tweets, particularly a tongue-in-cheek one on 10 reasons to vote for Ukip, such as scrapping paid maternity leave and raising income tax for the poorest 88% of Britons.”

This is the poster Michael tweeted:

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Michael described his experience in his own blog here. As he put it:

“…they said this was in relation to a complaint that had been made by a certain political party in relation to tweets I had published about them and one tweet in particular which talked about ten reasons to vote for them. The PC wanted to know if I had made that poster.”

The police were polite and concluded that there was no charge to answer and that it was not a police matter – but they still asked him to delete the relevant tweets, and suggested that he not tweet about their visit. I, for one, am glad that he did. There are a number of questions for the police – why they couldn’t work out what was going on just by reading the tweets and blogs, for example, and why they couldn’t see that a visit from the police would look very bad. Do the police not realise that people don’t like having a knock on their door from them? And if they do realise it, why not find another way to deal with something like this – a phone call, for example? If the police were a bit more ‘savvy’ they could have worked out what was going on pretty quickly and simply – and come to the conclusion that they finally did, that this was not a police matter at all. Michael is a scrupulous and intelligent blogger – what he was actually doing was fact-checking a parody UKIP poster that had been doing the rounds for a while.

The police have a lot to learn about this – but I think they are beginning to learn. What is more interesting to me is the role of UKIP. As confirmed by the police, it was a UKIP councillor that made the original complaint. Some UKIP supporters have suggested that the poster was a breach of the somewhat notorious S.127(1) of the Communications Act 2003, the section under which Paul Chambers was prosecuted in the farcical ‘Twitter Joke Trial”. Here’s Marty Caine, for example:

Screen Shot 2014-05-12 at 14.44.54

Now S.127(1) of the Communications Act 2003 is notoriously broad, but even if it could be stretched to cover Michael Abberton’s tweet (which the police concluded it couldn’t), why would UKIP, a party that fairly often puts itself forward as ‘libertarian’, try to use it? One of the basic tenets of libertarianism is a strong belief in freedom of speech. To a ‘real’ libertarian, the law should be used as little as possible. Freedom matters – and freedom of speech in particular. When someone says something bad about you, you should argue with them. Win the battle of wits. Compete in the marketplace of ideas – not try to find a way to silence your opponents, using the law – and the police – to try to stop them arguing against you.

Personally I detest UKIP – as my various blog posts on the subject over the last few months should make pretty clear – but I wouldn’t use the law to try to shut them up. I argue against them, tease them, parody them, try to persuade them – and yes, sometimes even shout at them – but I don’t try to silence them. Am I more of a libertarian than UKIP? It seems so – but then again, no party with pretentions of libertarianism would have as their central policy the control of immigration.

These kinds of tactics should be taken seriously. Visits from the police are disturbing to anyone – and interference in the political debate, particularly this close to an election, should be taken very seriously indeed. Michael Abberton’s blog was very much part of the debate, looking precisely at the policies of UKIP. As Michael put it in his blog:

“Why would a political party, so close to an election, seek to stop people finding out what their policies are or their past voting record? And is it not a matter for concern that a political party would seek to silence dissent and debate in such a manner?”

Yes, it absolutely is.



It turns out that the UKIP councillor that reported Michael’s tweet was Peter Reeve – and that the reason for the complaint seems to have been that as Michael was a Green Party supporter, his tweet should have been labelled as official Green Party electoral material. To say that this is unconvincing is putting it mildly – and Michael’s Twitter avi has a Green Party twibbon, just to make it clear even on a tweet. What’s more, this doesn’t in any way alter the overall freedom of speech argument – trying to silence political opponents by bringing in the police should be anathema….

UKIP and the reality of Britain

The revelation yesterday that UKIP had employed Latvians to deliver the very leaflets that warned people that their jobs were under threat from Eastern Europeans was greeted with amusement and some surprise – but it really shouldn’t have been surprising. This is the same campaign that had posters starring an Irish actor, displayed on billboards owned and run by a French company. This is the reality of modern Britain – and a reality that should be celebrated rather than feared. We’re a country where people of all kinds of origins work well together and, in general, get along pretty well together too. What’s more, it’s not just modern Britain, but Britain throughout the ages. In a lot of ways, for me, it’s the best thing about Britain.

UKIP should really realise this. A quick glance at the names of their leaders should give them the clue. As well as having a German wife, Nigel Farage has a French name – or perhaps a Belgian one. Roger Helmer, the MEP who is now their candidate for the Newark by-election, has a name that comes from southern Germany. No prizes for guessing the origin of the name of their Director of Communications, Patrick O’Flynn. It’s a regular (Swedish) Smorgasbord of national origins at UKIP.

UKIP’s logo also demonstrates their original mission – to save the pound. That’s the pound ‘sterling’. The word sterling is short for ‘Easterling’, the nickname given to the representatives of the Hanseatic League, a powerful group of German merchant towns in the late middle ages: even our currency is originally German. Our language, too, is a hotchpotch of others, mixing Old English, Latin, French, German and others. We might eat pork (French) that comes from a pig (Old English) or a swine (German), with apple (German) sauce (French) and potatoes (Haitian Carib via Spanish). That’s if we’re not eating chicken tikka masala…

The further back you go, the clearer it becomes. Pretty much every Royal House we’ve had comes from Europe. The Normans (French), Plantagenets (French), Tudors (Welsh), Stuarts (Scots), William of Orange (Dutch), Hanovers (German) were all from outside England – and Saxe-Coburg-Gotha (German) only became Windsor for presentational purposes. One of our ‘greatest’ kings, Richard Coeur de Lion, didn’t speak a word of English and much preferred to be in France. St George, the Roman/Palestinian mercenary  we share (like so much else of our culture and history) as patron saint with a wide number of other countries, from Georgia to Lithuania, Moldova, Montenegro and Palestine. Britain has been swept by waves of immigrants as far back as we can record. Celts, Romans, Angles, Saxons, Jutes and Danes were just the start – the likes of the Lombards and the Huguenots more recent examples. In every age we have been mixing cultures with people from all over the world.

That’s the bottom line. Our culture and history, as well as our present day, is one based on immigration and the joining, merging, mixing and enjoying of different cultures and peoples. It has always been that way – and that’s something we should understand and celebrate. We shouldn’t be trying to invent some ‘pure’ past or mythical identity of Britishness that is separate from everything else. We’re not separate. It’s the mix that makes us what we are – and the continuous changing and developing of that mix. Immigration doesn’t threaten some pure culture – because that pure culture doesn’t exist and never has. Our culture is one of immigration, and always has been. That’s the reality of Britain.

Guest Post: Rights of Academics and Prisoners

Guest post by  @Super__Cyan

On May 4th (be with you), the Independent reported that sources suggest that Chris Grayling, the Secretary of State for Justice, is blocking the work of the first ever independent inquiry into the extent of rape and sexual assault in Britain’s prisons.

The Commission on Sex in Prison (the Commission) was set up by the Howard League for Penal Reform and is made up of academics, former prison governors and health experts. Their aim is to focus on three broad themes: consensual sex in prison, coercive sex in prison, and healthy sexual development among young people in prison.

Apparently this inquiry was fine by Ken Clarke (the former Justice Secretary) but not so welcomed by Chris Grayling. It may not come as a surprise that this may well be incompatible with certain rights under the European Convention on Human Rights (ECHR).

Rights of the academics

The most obvious relevant ECHR provision is Article 10, which states that:

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

This is taken to encompass an academic freedom standpoint. Therefore Article 10 protects academic freedom. Receiving information with regards to the function of the Commission would be information gathered from research, and imparting would be the publication of findings and conclusions. The Parliamentary Assembly of the Council of Europe, in its Recommendation 1762 (2006), adopted the following declaration for the protection of academic freedom of expression:

4. In accordance with the Magna Charta Universitatum, the Assembly reaffirms the right to academic freedom and university autonomy which comprises the following principles:

4.1. academic freedom in research and in training should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction;…

4.3. history has proven that violations of academic freedom and university autonomy have always resulted in intellectual relapse, and consequently in social and economic stagnation;…

This sentiment was further reiterated by the European Court of Human Rights (ECtHR) in Sorguç v Turkey [2009] ECHR 979, underlining ‘the importance of academic freedom of expression, which comprises the academics’ freedom to express freely their opinion about the institution or system in which they work and freedom to distribute knowledge and truth without restriction’(para 35).

So any restriction on the freedom of members of the Commission must be prescribed by law, which is essentially the same (para 116) as ‘in accordance with the law.’ Chris Grayling’s blocking has to have a lawful basis. It is alleged that he has claimed that ‘[p]risoners aren’t going to have sex on [his] watch’ and he has been accused of taking it personally, even politicising his role, with other suggestions that the Ministry of Justice is doing ‘everything in its power to block the commission’s work.’ If Grayling is indeed taking a personal political standpoint on the Commission’s research, then this may call into question the legality of his decision, as it would seem to imply that he is taking irrelevant (personal view) considerations into account, failing to take relevant considerations into account (the possible benefits of this research), having his opinion influenced by the Howard Leagues opposition to policies (improper purpose), and applying the possible irrational/Wednesbury unreasonable belief that sex will not happen on his watch. In terms of public law, if this was indeed the process of decision making, it would be illegal, and therefore would fail the first hurdle of restricting the Article 10 rights.

There is also an important point regarding Article 8, which states that:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The ECtHR in Niemietz v Germany [1992] ECHR 80 believed that there was ‘no reason of principle why this understanding of the notion of “private life” should be taken to exclude activities of a professional…nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world. This view is supported by the fact that…it is not always possible to distinguish clearly which of an individual’s activities form part of his professional or business life and which do not. Thus, especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time’ (para 29).

This would suggest that the Article 8 rights of the Commission are also interfered with and would therefore require a justification under Article 8(2); but as seen above, with the lack of justifications in relation to Article 10, Article 8 would also be violated.

Prisoners have rights too

Sadiq Khan made an important point where he noted that:

Not only are there public health issues [with sex in prison], but some of what goes on might even be criminal. Standing in the way of research which will help us find out more about what’s happening in prisons seems like a petty response from Chris Grayling.

This may have implications for Article 3 of the ECHR, which states that:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

This rule is said to be absolute (para 137) and therefore there can never be justification for its breach. Additionally, as Article 1 suggests, the state has the duty of securing the rights that are contained in the ECHR for everyone under its jurisdiction. The ECtHR in Đorđević v Croatia [2012] ECHR 1640 further maintained that this required states ‘to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals. These measures should provide effective protection, in particular, of children and other vulnerable persons, and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge’ (para 138). Having an inquiry into sex in prisons may go some way in bringing knowledge to the authorities, which is why it does not make sense to prevent this.

If there were indeed sexual offences committed, not only would this engage Article 3 but also Article 8, as ‘private life’ covers the physical and moral integrity of the person, including his or her sexual life (X and Y v Netherlands [1985] ECHR 4 para 22). In M.C. v Bulgaria [2003] ECHR 651, a case involving rape, Articles 3 and 8 were read together (para 166).

There is a problem however, in Osman v United Kingdom [1998] ECHR 101,as the ‘[s]tate’s obligation… extends…to…putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions’ (para 115). These are already in place and, in referring to a state’s procedural obligations, Grand Chamber in Janowiec v Russia [2013] ECHR 1003 noted that:

[T]he reference to “procedural acts” must be understood in the sense inherent in the procedural obligation under Article 2 or, as the case may be, Article 3 of the Convention, namely acts undertaken in the framework of criminal, civil, administrative or disciplinary proceedings which are capable of leading to the identification and punishment of those responsible or to an award of compensation to the injured party… This definition operates to the exclusion of other types of inquiries that may be carried out for other purposes, such as establishing a historical truth. (para 143)

However, in the same judgment, the joint partly dissenting opinion of Judges Ziemele, De Gaetano, Laffranque and Keller vehemently disagrees, stating that ‘[s]ometimes, one procedural step is a precondition for another…[and] in international law there is a clear trend towards recognising a right to the truth in cases of gross human rights violations’ (para 9).

Research by the Commission could initiate some of the proceedings mentioned by the majority of the Grand Chamber, i.e. sexual offences between inmates, sexual offences between inmates and staff or staff having sexual relationships with inmates which would involve misconduct in public office (which are all criminal) which can also lead to disciplinary proceedings (for staff members if relationships have been uncovered between them and inmates, this may also lead to civil action depending on the circumstances). So what the minority are suggesting is that even the ECtHR’s own case law betrays the reasoning of the majority; historical truth can lead to civil action. If one only looks Ndiki Mutua and Others v Foreign and Commonwealth Office [2012] EWHC 2678 (QB) (the Mau Mau case), this was set in motion by academic research conducted by Professor Caroline Elkins, Professor David Andersonand Dr Huw Bennett. This ultimately led to William Hague announcing that the Government will provide £19.9m in compensation. This demonstrates how valuable research can be even if it was not intended to provide legal avenues.

So it would seem that blocking this inquiry may not have any implications for the state’s positive obligations, because there are no allegations of any sexual offences/inappropriate relationships; and if there were, it would be the duty of the police to act upon this. It seems Grayling does not want human rights to apply to those in prisons, nor to those who want to help them.

And as Yoda would say:




Thanks to @RichGreenhill for reading initial draft.