Response to Online Harms White Paper

My submission to the Online Harms White Paper consultation is set out below. This has been one of the hardest government consultations for me to respond to. In part this is because the White Paper covers so much ground that there is far too much to say than can fit into a reasonably sized response – one that stands a chance of being read properly – but in part it is because the consultation looks very much as though it has already assumed the main answers. The questions as set out in the consultation are very much on the detail level about how to do what they’ve already decided to do, although a great deal of what they’ve decided to do is at best questionable, at worst extremely likely to be not just ineffective but actually counterproductive, as well as restricting crucial internet freedom for many of the people who need it the most.

That means my response is somewhat ‘bitty’, covering only a few select areas as well as giving general comments. Fortunately there are some other really excellent responses out there,

Response to the Online Harms White Paper consultation

I am making this submission in my capacity as Senior Lecturer in Information Technology, Intellectual Property and Media Law at the UEA Law School. I research into internet law and specialise in internet regulation from both a theoretical and a practical perspective. My first book, Internet Privacy Rights – Rights to Protect Autonomy, was published by Cambridge University Press in 2014. My second book, The Internet, Warts and All: Free Speech, Privacy and Truth, was also published by Cambridge University Press in August 2018, and has the question of regulation of the Internet as one of its central themes. ‘Online harms’, as set out in the White Paper, are central to that book, from the chapters covering freedom of speech and fake news to the chapter on the nature and practice of trolling. There are direct recommendations about regulation of all of this contained within that book.

I have previously responded to a series of government consultations in this and related fields, including the House of Lords Internet Regulation Inquiry and the DCMS Fake News Inquiry in 2018, and was involved in the Law Commission Abusive and Offensive Online Communications Project that same year. This area falls squarely within my field of expertise and I have written extensively about it in forms other than the two academic books already mentioned. I would be happy to contribute further if that would be of assistance.

Introduction to this submission

Whilst the problem of online harms is a significant one, there are significant dangers associated with inappropriate and excessive regulation. As well as potentially putting freedom of speech, freedom of association and assembly and other human rights at risk, many of the methods suggested could end up being counterproductive, actually causing more harm than they address. They can encourage countermeasures that mean that the real ‘villains’ avoid being held to account, they can create tools that are used bywhat might loosely be called ‘trolls’ against their victims, and they can produce more arbitrary punishment that make it harder to respect the laws and those attempting to enforce them.

It is important not to be persuaded by inaccurate characterisations of the internet as a ‘wild west’ that is ungoverned and needs ‘reining in’. For the vast majority of people, the vast majority of the time, the internet is a place that provides great benefits and an essentially safe and secure environment to socialise, do business, find information and much more. Moreover, the internet is already regulated by a wide range of laws, from those governing speech (such as S127 of the Communications Act 2003, the Malicious Communication Act 1988) and public order law to data protection, copyright, fraud and ‘revenge porn’, as well as civil law such as defamation law, misuse of private information and much more. Regulators such as Ofcom and the Information Commissioner’s Office already have extensive powers to operate online. This is not in any real sense an unregulated area – indeed, in many ways, speech online is subject to tighter control and more regulation than speech ‘offline’.

Further, the nature of the online world means that rather than being a place where anonymity provides excessive ‘protection’, it is an environment where records are more precise, more persistent and more easily analysed than the ‘offline’ world, often making people moreaccountable for their speech than in the past. There are technological and legal mechanisms to both locate and potentially prosecute perpetrators of online harms – and many have indeed been prosecuted in ways that might well have been seen as disproportionate if their speech had been offline rather than on the internet.

All this means is that much more care needs to be taken about how – and indeed whetherto regulate speech any more harshly than it is currently regulated. There are some specific areas where it might be appropriate, but a heavy-handed approach to the regulation of online speech, though politically attractive, will almost certainly cause much more harm than good. Moreover, it can create a sense of complacency about dealing with much more important problems in the online environment, as well as providing inappropriate reassurance that distracts from the critical need to encourage people to be self-supportive and ‘savvy’ online, which is much more important than any regulator could be.

This is perhaps the most important point, and it is good to see that a section of the White Paper is devoted to awareness and in particular to empowering users. This should be emphasised in all communications – and the idea that we can somehow create an internet that is completely ‘safe’ should not be promoted so positively. A ‘safe’ internet can become a sterile internet, losing the creativity and dynamism that is the lifeblood of the environment. We should neither overplay the dangers – as the portrayal of the internet as a lawless ‘wild west’ suggests – nor exaggerate the capability to remove those dangers entirely, as the idea of making the internet ‘safe’ implies.

Similarly, if the government does try to regulate along the lines set out in the White Paper, it is important not to expect too much. This kind of regulation is highly unlikely to have a significant impact on the level of ‘online harms’ that are encountered. The risks associated with this kind of regulation, as well as the significant costs involved in setting it up, make it hard to justify pursuing it as it stands.

1          Focussing on illegal content and activity

1.1       That the White Paper starts by referring to illegal ‘and unacceptable’content and activity should be a concern from the start. If something is really ‘unacceptable’, it should be made illegal – and unless it is illegal, it should not be deemed unacceptable. If acceptability can be determined by policy or politics rather than law, the scope for abuse, uncertainty and bias is enormous. Setting what amounts to a ‘moral’ or ‘ethical’ view of acceptability is a very slippery slope.

1.2       Further, setting one set of standards of ‘acceptability’ for the whole of the internet is not only doomed to failure but likely to destroy some online communities that are in most ways positive and supportive for people who spend time in them – something that should be strenuously avoided. One of the key strengths of the internet is that it allows space for the existence of very different communities and very different platforms – this has been true since the beginning of the ‘social’ internet in particular. Imposing a set of standards ‘from above’ that do not meet either the needs or the expectations of those communities is not only unlikely to succeed in any meaningful way but is likely to cause anger and resentment.

1.3       Where content and behaviour is illegalthe law should apply across all platforms and communities. Deciding ‘acceptability’ should be kept to the platforms and the communities to decide. This way the different platforms and communities can develop in ways that suit them. Encouraging a diversity of platforms and communities has the additional potential benefit of dispersing the power currently wielded by the internet giants – and reducing vulnerability to things like fake news and political manipulation, as part of the reason for the effectiveness of both has been the concentration of data and audience on particular platforms, Facebook and YouTube in particular.[1]

2          Online harms

2.1       The online harms discussed in the White Paper need to be considered in the light of this. The first main types discussed in the White Paper fit clearly into the illegalcategory: CSEA, terrorist contents, content uploaded from prisons, the sale of illegal opioids. Law already exists to address all of these, and to a significant degree this law is already effective, insofar as it can be effective given the nature of the problem. A new online regulator, following the lines discussed in the White Paper is unlikely to have a significant effect on any of these areas – more resources to law enforcement, to prisons (to take more control over the supply of mobile phones for example) and so forth is much more likely to be effective.

2.2       The other harms discussed, ‘[b]eyond illegal activity’, from section 1.15 of the paper on, are another matter. Cyber bullying, misogyny and other forms of online abuse can cross the threshold into illegality, and many have been successfully prosecuted, (e.g. under the Malicious Communications Act 1988 and S127 of the Communications Act 2003). This does not mean that further law or regulation is required, but that more consistency, better training and clarity from those enforcing the law, and more resources to them, could improve matters, particular where the application of these laws has been seen to appear arbitrary and out of touch. The notorious ‘Twitter Joke Trial’ of Paul Chambers in 2012, which eventually saw the conviction quashed after a series of appeals, left those enforcing the law looking more than foolish. This was not a result of too little law or too little regulation but of authorities that did not understand the online world.

3          Anonymity online

3.1       The White Paper notes that ‘tackling online anonymous abuse’ is a key concern. This has been a subject of discussion for those studying the internet for many years – and it is important to raise a strong, cautionary note against the idea that requiring ‘real names’ would be an effective tool against online abuse. In practice, there is little evidence so suggest that it might be, and significant evidence that it would not – and that it would put vulnerable people in particular situations at risk.[2]

3.2       It may seem counterintuitive but empirical evidence has shown that ‘trolls’ required to use their real names online actually become morerather than less aggressive. Trolls often ‘waive their anonymity’ online, becoming even more aggressive when posting with their real names.[3]As I note in my 2018 book, The Internet, Warts and All, it may be that having a real name displayed emboldens trolls, adding credibility and kudos to their trolling activities. It may also be that they feel they have less to lose and less to protect when their names are revealed – or that it creates a ‘badge of honour’. Whatever the reason, the evidence does notsuggest that requiring real names deters trolls or trolling.

3.3       Further, forcing people to use real names puts some people at risk – from whistle-blowers to victims of spousal abuse, to people with religious or ethnically identifying names and many more groups. It also makes the victimsof online abuse more vulnerable, as their attackers can learn more about them and use that to abuse or threaten them – finding out their personal details and using them against them, threatening to report them or tell lies about them to their families and friends, employers and so forth. The classical troll tactic of ‘doxxing’ – releasing documents about a victim – is made much easier by a real names policy

3.4       There are already legal and technical methods for revealing who lies behind an anonymous account – anonymity online is never more than a basic protection – which can and should be used when required. There are also platforms where real names are required already – Facebook for one – but there is little evidence that they provide more protection from abuse. What could help, as noted above, is a greater diversity of platforms and communities online, so that people can find places that are safer for themonline. The rise of group-based private social media system like WhatsApp may be in part a response to this problem: groups kept private and secure are less open to external abusers.

4          Young people online

4.1       The note in the paper that most children nave a positive experience online is very welcome: it is really important not to portray the online world as somewhere fundamentally dangerous for children and young people. An overly protective approach to children online would reflect a mischaracterisation and misunderstanding of how the internet works for children, and any regulation that restricts rather than supports children online should be avoided.

4.2       It is critical in understanding this notto put too much emphasis on the worries of parents about their children’s online activities, particularly when those worries are actively encouragedby the ways that they are questioned about it. If can be a reflection of the way that parents misunderstand what their children are doing, and feel out of touch. A greater emphasis on educating parents so that they don’t worry would be very welcome.

4.3       Recent studies also show that concerns about the impact of ‘screen time’ on adolescents mental health are likely to be unfounded.[4]This fits into a common pattern of misplaced fears and concerns based on misunderstanding of both technology and the lives of young people. It is important not to overreact to ideas and fears spread through ignorance. An overly onerous regulatory approach towards young people online should be avoided. This is not to underplay the importance of dealing with key issues such as self-harm and suicide, sexting and revenge porn, but to place them in context. It is important also to understand the causality here: where there are correlations between online activity and self-harm, for example.

4.4       An area where the government is already attempting to regulate in relation to children – age verification for access to pornographic and other ‘adult’ content – is another example where regulation is highly unlikely to be effective, and a prime example of another classical failure of regulation, the failure to listen to experts. Almost everyone in the technology industry has advised against the path that the government has taken: it won’t in practice help protect children from harm, will encourage complacency, has already encouraged countermeasures both technical (including the rise in usage of VPNs) and tactical (using privacy groups and so forth), and does not address the real issue of harm. Moreover, it is likely to be very expensive and technologically almost impossible to function well. It was and remains a regulatory trap – the government should do its best not to fall into similar regulatory traps in other areas. Caution, care, and a willingness to listen to experts even when they go against what might seem ‘obvious’, are very much needed in the area of internet regulation.

4.5       One area where regulation in relation to children could, however, be useful, is privacy – in common with other areas mentioned in this submission, privacy underpins protection in other ways. A requirement for real names, as noted above, would be likely to harmrather than help children at risk of cyber bullying and other online abuse. The ability for children to protect their privacy is critical – and restricting the gathering of data about children by social media platforms, advertisers and so forth should be encouraged.

5          Privacy, fake news and political manipulation

5.1       That leads to the more general point about privacy and personal data: the gathering and use of personal information underpins many of the worst problems on the internet at present. Privacy invasion and profiling lies behind the current manifestation of the fake news phenomenon and the broader issue of political manipulation (as graphically illustrated by the Cambridge Analytica saga) discussed in the White Paper, as well as providing tools for scammers and other criminals, creating vulnerabilities that can be exploited and much more.

5.2       Indeed, rather than focus on the symptoms of fake news and related harms, as the White Paper seems to do in paragraphs 7.25 onwards, focus should be placed on privacy, on data gathering, profiling and targeting. It is these techniques (again, as graphically illustrated by the Cambridge Analytica saga) that make misinformation and political manipulation so particularly effective in the current internet. The White Paper notes that it will be looking at advertising online – but does not make the connection between the techniques used by online advertisers and those used by people spreading fake news and misinformation. They are, in practice, the same methods, the same techniques (data analysis, profiling and targeting), and whilst these are seen as essentially harmless, normal business practices, any attempts to ‘deal with’ fake news, political manipulation and electoral interference are bound to fail. ‘Fact checking’ and labelling of fake news or unreliable sources has been empirically demonstrated to be counterproductive, making people morelikely to believe the fake news, one of the reasons Facebook abandoned its practice in 2017.[5]Making this kind of labelling part of any ‘duty of care’ would be directly counterproductive to combatting this kind of online harm.

5.3       Privacy and personal data is also an area where extensive law already exists. Data protection law, and in particular the new General Data Protection Regulation, has the potential to provide a good deal of support for individual privacy – but only if it is enforced with sufficient rigour and support. The Information Commissioner’s Office (‘ICO’) needs to be given more resources both in terms of finance and expertise, and perhaps more responsibilities.

6          The role of a regulator

6.1       As noted in various sections above, there are many areas discussed in the White Paper for which either regulation already exists or further regulation is likely to be counterproductive. The idea of imposing a ‘duty of care’ on internet platforms for some of subjects discussed in the White Paper should therefore be viewed with great caution. There are further areas where internet platforms are already working extensively to address, and where the question of whether a regulator is really needed should be asked. These include the online abuse of public figures – much of what is suggested is already being done, particular by Facebook and Twitter, and it is easy to fall into a trap of saying ‘it’s all the fault of the social media companies’ when there is a much bigger, underlying issue that is on a societal level.  The online abuse of public figures is closely connected with racism and misogyny – female and ethnic minority public figures are subjected to more and more virulent abuse than others – and whilst these are still tightly embedded in our society, blaming the social media companies for the existence of such abuse can easily become a form of deflection or avoidance.

6.2       Codes of practice could be welcome in these areas, but as noted above, imposing one set of standards on all (or most) platforms is likely to be ineffective and to have significant side effects. Enforcing that code of practice is likely to be difficult and hard to make consistent, fair or appropriate.

6.3       As noted above, privacy is of critical importance, and yet some of the suggestions for the ‘duty of care’ involve actually invading or weakening privacy for precisely the people who need it the most. In 7.35 for example, it is suggested that ‘vulnerable users and users who actively search for…’ certain content should be monitored – how is this to be done without extensive invasions of privacy, and how are those invasions of privacy to be done in ways that do not put the specifically vulnerable users at further risk? Again, the encouragement of people to take countermeasures and to develop tools and techniques to avoid this kind of monitoring should not be underestimated. Much of this kind of content will be driven to areas where it is lesseasy to provide support and help for people who really need it.

6.4       These are just some of the example that indicate quite how difficult doing effective regulation in this kind of way is likely to be. It is vital to understand that this regulatory exercise be understood to be highly challenging, very likely to be ineffective, as well as extremely expensive. Expectations as to its effectiveness, in particular, should be kept in check, as well as the potential damage to internet freedom at precisely the time when it is most needed.

7          Internet Freedom

7.1       It is easy to blame the internet for problems that have other causes, and easy to see it as something that needs to be ‘reined in’ or controlled. As well as being, as noted in various sections above, a mischaracterisation of the current situation, where for the vast majority of people the vast majority of the time the internet is something immensely positive, productive and supportive, providing for most ordinary people forms of communication and access to information that was previously the province only of the extremely privileged. Part of the reason for this huge positive is the amount of freedom that we currently have – and how it underpins many of our human rights, from freedom of expression to assembly and association, both online and off, freedom from discrimination, the right to a fair trial and more.

7.2       This freedom is something that should not be lightly sacrificed, particularly on the basis of myths and misunderstandings, or from an intention to assuage particular sections of the media. Almost all of the measures suggested in the White Paper have an impact on both freedom of speech and access to information, and many have a significant impact on privacy and the other vital human rights already mentioned. That is not to say that they should not be considered, but that those impacts need to be considered very seriously, and regulation not undertaken lightly. Excessive regulation can end up arbitrary and unfair, it can exacerbate existing problems, it can be gamedby people to the detriment of their enemies – and internet trolls and others wishing harm can be experts in such gaming, using tools created to protect people to actively harm them.

7.3       It should also be borne in mind that tools created now, with authorities that we deem to be benign, can be used by successor authorities that are less benign – we need to learn the lessons from history about this, and to avoid setting things up that can end up being used to oppress rather than protect. This is another key reason for caution in regulating too harshly.

8          Responses to specific questions in the consultation

This response has focussed on the overall effect of the White Paper, and on some particular areas where problems might arise, rather than on the specific consultation questions. Some of the questions are beyond the scope of this response but some do warrant a specific answer. In particular:

Q1:       The first and most important thing that the government should do is demonstrate more transparency, trust and accountability itself. The government should lead by example – and a code of conduct for ministers in relation to things like misinformation would be a good start. In practice, minsters not only spread misinformation themselves but contribute to an environment in which information is not trusted. Proper accountability should begin with the government.

Q4        Any regulator needs to be fully accountable to Parliament, through parliamentary committee, rather than through the DCMS itself. It should be responsible to parliamentrather that to the government, particularly as it needs at times to hold the government to account (see response to Q1).

Q5        As noted throughout this submission, great care needs to be taken to avoid excessive regulation.

Q6-7     These are crucial questions, but I am afraid it betrays a misunderstanding of the nature of privacy, something discussed in depth in Chapter 6 of my book The Internet, Warts and All.Privacy is not ‘two-valued’ with some communications being private, others public. It is much more nuanced than that, and sometimes ‘public’ forums include extremely private conversations and communications. The infamous Samaritans Radarfailed precisely because it misunderstood this – and the ICO confirmed at the time that private and personal information can exist on ‘public’ social media platforms.[6]Much more care and thought is needed here, rather than assuming that private and public can be easily separated. Moreover, if the criteria for what counts as private becomes known, it can (a) drive people to more private forms of communication that mean they are less easily helped and (b) create an opportunity for ‘gaming’ the regulations.

Q8        As noted throughout this submission, this is the big question for the whole plan. Much more time and thought is needed to avoid the regulation being both heavy-handed and ineffective.

Q10      The bigger question is whether the regulator should exist at all in the form proposed. The government should be asking that bigger question before looking at the precise legal form. If a regulator is definitely decided upon, a new public body would seem more appropriate than an existing one: the ICO has too much to do already, broadcast and related areas are too dissimilar for Ofcom to have much chance of succeeding, the BBFC is struggling over the contentious issue of age verification.

Q11      Making a regulator ‘cost neutral’ is laudable but brings about the risk of even more potent lobbying than already exists, and the power of the lobbies of Google, Facebook et al is already remarkably powerful. Whatever funding mechanism is determined needs to be clear, simple and not gameable – and that is very difficult to do given the expertise of those likely to be required to pay.

Q12      i) Unless any regulator has the power to disrupt business activities it is unlikely to have any impact at all. ii) ISP blocking already exists in relation to copyright, CSEA (via the IWF) and other areas. Extending those areas should be very much resisted, as the impact on freedom of expression is direct and significant, but given that it already exists for those areas there is little logical reason why not to extend it. iii) Senior management liability, though attractive, is unlikely to be sustainable.

Q13      Under terms similar to the GDPR.

Q14      Yes, but the details would depend very much on precisely how the regulations are set out.

Q15      The risks associated with Brexit, the excessive nature of our surveillance regime and in particular things like demands for backdoors to encryption are the biggest barriers to innovation in the UK technology industry. Both are understandably beyond the remit of this consultation, but those involved should be aware how damaging both are to the technology industry.

Q17-18See section 4 above. Children need empowerment more than protection, and parents need to learn more than the children do. The regulator should play an informative role – but be aware that this is very limited, and not place too heavy an expectation of its success.

I hope this response is helpful. If you need any further information, or links to the research that underpins any of the answers, please let me know.


Dr Paul Bernal

Senior Lecturer in Information Technology, Intellectual Property and Media Law

UEA Law School

University of East Anglia

Norwich NR4 7TJ


[1]See my article in the Northern Ireland Legal Quarterly in December 2018, Fakebook: why Facebook makes the fake news problem inevitable, online at

[2]This area is covered in depth in Chapter 8 of my bookThe Internet, Warts and All: Free Speech, Privacy and Truth, published by Cambridge University Press, 2018.

[3]Most notably the 2016 study from the University of Zurich, reported in Rost, Stahel and Frey, Digital Social Norm Enforcement: Online Firestorms in Social Media,  PLoS ONE 11 (6)

[4]See Orben and Przybylski, Screens, Teens, and Psychological Well-Being: Evidence From Three Time-Use-Diary Studies, 2019


[6]The Samaritans Radar story is the central case study of chapter 6 of The Internet, Warts and All.It involved analysing social media postings in order to identify when vulnerable people might be contemplating suicide, and failed within ten days of its launch as its privacy invasions were found to be deeply intrusive to exactly the online community it intended to support, and seen as putting them at intense risk.

Impartiality and the BBC…

The issue of BBC and impartiality seems never far from the surface these days – and during the highly charged Brexit process it seems to have erupted more and more. So much so that Ofcom, who have been the BBC’s regulator since it took the role from the BBC Trust in 2017, are now undertaking a review.

This review is very much to be welcomed – but it needs to be understood too. This is not happening, as some seem to think, as a recognition of BBC bias, or an acknowledgement that something is wrong in practice with the BBC’s output. The terms of the review give a somewhat less direct explanation. The Terms of Reference of the review state that:

“We will seek to understand more clearly the importance the audience places on the BBC’s impartiality; whether they are satisfied that the current tools used to ensure due impartiality are effective; and how audience attitudes to impartiality, accuracy and trust relate to one another.”

This is much more about perception of impartiality than the practice. It is primarily a review of audience opinion rather than the BBC’s practices. It is, however, an in depth review and is very much to be welcomed – but whether it will go far enough or deep enough to satisfy the BBC’s critics is another matter entirely. The first signs are not as positive as they might be. When the BBC’s Director General, was reported to have said that “We must stand up for it and defend our role like never before,” it set alarm bells ringing. Defensiveness, in many ways, is the last thing that the BBC should be thinking about now.

Indeed, in relation to impartiality in particular, the BBC’s defensiveness has been a big part of the problem. Whenever the BBC has been seen to be partial, it’s first reaction – and indeed that of its senior journalists and producers, particularly when responding in the social media – has been a kind of aggressive and dismissive defensiveness. ‘How dare you suggest that’ and ‘don’t be ridiculous’ has been the general tone pretty much every time, even when it is pretty clear that the BBC has made a mistake, an error of judgment, or been ‘played’ by someone in order to gain an advantage. These things happen – and the BBC’s often intense denial that it is even conceivable that they have looks not only ridiculous in itself but undermines the very trust that the BBC seeks to protect.

Neutrality and impartiality

It is important to be clear in what way the BBC is required to be impartial. The Broadcasting Code requires that the BBC (and other broadcasters)”…ensure that news, in whatever form, is reported with due accuracy and presented with due impartiality.”

Note that the requirements for accuracy and impartiality are together – impartiality and accuracy are two parts of the same requirement, and quite rightly. Whilst ensuring that there is impartiality, broadcasters should not take their eye of accuracy. If one side of a debate is telling the truth and the other is telling lies, it is not breaching impartiality to call out the lies, even if that looks as though it is being harder on one side than the other. If one side is lying, the due in due impartiality actually requires the lies to be called out.

The code makes a big point of what due is supposed to imply:

“Due” is an important qualification to the concept of impartiality. Impartiality itself means not favouring one side over another. “Due” means adequate or appropriate to the subject and nature of the programme. So “due impartiality” does not mean an equal division of time has to be given to every view, or that every argument and every facet of every argument has to be represented.

This is where, at least in perception, the BBC starts to get itself into trouble. That trouble has been official in relation to climate change, when it was rebuked by Ofcom for not challenging Lord Lawson sufficiently in an interview on Radio 4’s Today Programme in 2017, but has been made more intense over Brexit, when many people have suggested that the BBC’s journalists have not challenged the claims made, particularly by leading Brexiters, or called out things that are known to be untrue. In order to be seen to be impartial, it looks as though the BBC has let the requirement for accuracy slip, and potentially to a dangerous degree.

Being criticised by both sides isn’t evidence of impartiality

The BBC is of course criticised by both sides in the Brexit debate. Remainers claim the BBC is biased towards Brexit. Brexiters claim the BBC is biased towards Remainers. It is sometimes claimed, even by people in the BBC, that this is in some ways evidence that the BBC is impartial, or is getting the balance right. It is really important to understand that this is a logical fallacy. If you are getting the balance right, then you might well be criticised by both sides – but the converse is not true. One of the sides may be criticising you fairly, the other side unfairly. If one side sees that the bias is going their way, then they may well criticise anyway, to try to keep that bias in place, and to try to cancel out the criticism from their opponents. Bad faith criticism, to try to bully the journalists and indeed the BBC, is to be expected – particularly when the facts and evidence surrounding a particular issue point clearly in one way rather than the other. If you don’t have the facts on your side, using under-hand methods is one of the tools at your disposal – and that includes bad faith attacks on the broadcasters.

This does not, of course, mean that all criticism of the BBC and other broadcasters is done in bad faith – very much the opposite – but it does mean that the argument that because both sides are attacking we must be being neutral or impartial is fundamentally flawed. Criticisms should be taken seriously, but taken with a distinct pinch of salt

Particular problems in the current era

Times are particularly challenging right now, and not just because politics is particularly heated. The BBC is facing a complex environment that puts particular pressures on its news and current affairs role – and particularly its impartiality.

One of the most important is the danger that it faces in being ‘played’ by people with a vested interest. This manifests itself in many different ways, from murkier funded ‘Think tanks’ pretending to be neutral themselves and portraying themselves as researchers when they are really highly manipulative lobbyists, to people trying to gain fame or push their particular personal agendas. Problems like the ‘fake vicar‘ who appeared on Newsnight might have many different explanations, but they certainly do not inspire trust.

Newsnight’s use of one of his own propaganda pictures as the backdrop for their feature on Stephen Yaxley-Lennon (‘Tommy Robinson’) might also fit into this category – it was certainly a significant mistake, but whether it was accidental or Newsnight being played we may never find out – particularly as the BBC refuses to even countenance the possibility that it was wrong. The regular problems with apparent ‘plants’ in the audiences of Question Time might fit along the same lines – again it is not always clear whether these people blag their way into the audiences or are actually invited, as one UKIP candidate who managed to get on the programme three times has claimed.

Another challenge to the BBC is the apparent untouchability of its ‘big beasts’ – presenters such as Andrew Neil and perhaps most prominently John Humphrys – who headline the highest profile programmes. This points to another of the BBC’s biggest dilemmas – balancing ‘box office’ with informative, impartial and accurate journalism. When the presenters become the stars, that balance is challenged.

Headlines and Tweets

Another huge challenge, and one faced by the whole of the media, not just the BBC, is a failure to grasp the importance of headlines and summaries. Traditionally journalists have had little or no control over the headlines that accompany their stories – and in the past this has mostly been an annoyance, but little more. Now, however, it matters in many more ways. It is not just that people will often only see the headlines – that was always true, as you look at a newspaper in a shop, or see someone else reading it on the train – but that those headlines can often be the only thing that can be seen. It is what appears in search results, for example, or in a Twitter or Facebook feed. It is what is automatically generated if you click the button to tweet a story – you have to manually go in and change it if you want to say something different.

It can be screen-shotted without providing a link to the actual story. It can be used by manipulative politicians to imply something quite different from the intention of the story itself – Jacob Rees-Mogg has a particular track record here, but he is far from alone. There are people trying to manipulate news output all the time – it is one of the key features of the ‘post-truth’ era.

What needs to be done?

The first thing is to welcome this current review – and to encourage Ofcom to take it seriously, and the BBC to address it properly, and without this instinctive defensiveness that has characterised their approach to criticism so far. That, indeed, might be the single most important thing for the BBC to do. We all make mistakes – and we all know that others make mistakes. That includes the BBC.

Without acknowledging, let alone apologising for their mistakes, the BBC looks worse and worse. The kind of dismissive responses to questions about impartiality, from the Corbyn/Kremlin backdrop to the Fake Vicar to the ‘jokes’ about Diane Abbott prior to airtime on Question Time, do the BBC a lot of harm. The BBC can easily seem aloof, arrogant, looking down its nose at its audience – that really needs to change.

One way it needs to change is more openness about the debates that are going on. I am sure, from the people that I know at the BBC, that when something bad happens there are many people worried about it, wondering whether they misjudged the issue, and worse. I know there are people in the BBC, for example, who are concerned about the BBC’s role in the rise to prominence of Nigel Farage, and others who are embarrassed about the arrogance of some presenters on the Today Programme. These debates must be happening in the BBC behind closed doors – there should be some way to show the public that the BBC is at least aware that there are problems, and problems with practice not just with the perception of audiences.

If the BBC could, just once, say something along the lines of ‘yes, we may have misjudged that, and with hindsight we shouldn’t have used that picture/invited that person to be interviewed, or we could have been tougher in our questioning of that politician, rather than going straight onto the ‘how dare you criticise us’ road, it would really help.

Taking genuine experts more seriously would also help – and again, I know the BBC does try hard here, and I know that many experts are hard to reach or less good ‘box office’ than politicians or ‘think tank’ representatives, but it really matters. That last part, the use of lobbyists without knowing or acknowledging their real background, funding and so forth, has been a perennial problem.

We need the BBC

The importance of the BBC in the current era cannot be overstated. We need high quality, relatively impartial, and accurate and informative journalism now more than ever. In the struggle with fake news and other forms of misinformation, the existence of reliable ‘real’ news is a crucial tool. The BBC ought to be able to provide it – it holds a unique and critical position. Its grip on that position, however, is far from firm. Changes need to be made if it is to be maintained. I hope the BBC is brave enough to make them.

(This is of course my own personal, biased and far from impartial perspective).

SLS 2019 – University of Central Lancashire, Preston


Here’s the official call for papers for the Cyberlaw section of the SLS

SLS Cyberlaw Section: Call for Papers/Panels for 2019 SLS Annual Conference at the University of Central Lancashire, Preston

This is a call for papers and panels for the Cyberlaw section of the 2019 Society of Legal Scholars Annual Conference to be held at the University of Central Lancashire in Preston, from Tuesday 3rd September – Friday 6th September. This year’s theme is ‘Central Questions About Law.

The Cyberlaw section will meet in the first half of the conference on Tuesday 3rd and Wednesday 4th September.

If you are interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on Monday 18th March 2019. All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link – – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. If you experience any issues in using Oxford Abstracts, please contact

Decisions will be communicated by the end of April.

I would welcome proposals for papers and panels on any issue relating to social media regulation, data protection, copyright reform and surveillance, including those addressing this year’s conference theme and though it might seem hard to predict, on the impact of Brexit on all aspects of cyber law. We welcome proposals representing a full range of intellectual perspectives in the subject section, and from those at all stages of their careers.

Those wishing to present a paper should submit a title and abstract of around 300 words. Those wishing to propose a panel should submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate) and their abstracts. Sessions are 90 minutes in length and so we recommend panels of three to four speakers, though the conference organisers reserve the right to add speakers to panels in the interests of balance and diversity.

As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, we discourage speakers from presenting more than one paper at the conference. With this in mind, when you submit an abstract via Oxford Abstracts you will be asked to note if you are also responding to calls for papers or panels from other sections.

Please also note that the SLS offers a Best Paper Prize which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel. The Prize carries a £250 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, appear in Legal Studies. To be eligible:

  • speakers must be fully paid-up members of the SLS (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final.)
  • papers must not exceed 12,000 words including footnotes (as counted in Word);
  • papers must be uploaded to the paperbank by 11:59pm UK time on Monday 26th August; and
  • papers must not have been published previously or have been accepted or be under consideration for publication.
  • papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

I have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Friday 14th of June in order to secure their place within the programme, though please do let me know if this deadline is likely to pose any problems for you. Booking information will be circulated in due course, and will open after the decisions on the response to the calls are made.

With best wishes,

Paul Bernal

Corbyn and those European Courts

Jeremy Corbyn caused some distress amongst legal commentators over the weekend when he said to Andrew Marr that the European Court of Human Rights was ‘only in part an EU institution’. That simply isn’t true: the European Court of Human Rights (‘ECtHR’) is not in any way an EU institution. It is a Council of Europe court – and the Council of Europe is an organisation both broader and older than the European Union. The ECtHR exists to enforce the European Convention on Human Rights (the ‘ECHR’ – yes, all these abbreviations are confusing), something that was created in the aftermath of the Second World War and the Holocaust, agreed in 1950 and entering into force in 1953. Brits played a key part in its creation – it is something that for the most part the British legal community are justifiably proud of. So no, the ECtHR is not in any way an EU institution.

There is a link to the EU in a way, as a number of people have mentioned – but not in a way that makes the ECtHR in any way an EU institution. This link is that new member states of the EU are required to have signed up to the European Convention of Human Rights – and thus come under the jurisdiction of the ECtHR. This is because the EU recognises that the ECHR represents a minimum standard of Human Rights compliance – not that the ECHR is an EU document or the ECtHR is an EU institution. It isn’t even legally certain that existing members of the EU are required to be signatories of the ECHR – they all are, however, and no sensible or even slightly humane member state would be considering leaving the ECHR.

This is because the ECHR is a throughly positive document, and anyone who supports human rights should support our continuing to be a signatory. Certainly any Labour Party member – let alone any Labour Party leader, particularly one like Jeremy Corbyn with a history of supporting – indeed championing – human rights.

There is, however, at least one person who has suggested that we leave the ECHR: Theresa May. She’s been frustrated by the ECtHR more than once – and it is hard not to conclude that she’s far from a fan of human rights. Indeed, some have suggested that her antipathy for the ECJ – the European Court of Justice, which is is Luxembourg, as opposed to the ECtHR which is in Strasbourg – because she’s confused between the two courts.

That confusion is why so many legal commentators reacted so angrily to Corbyn’s remarks. Muddying waters that are already pretty murky feeds into the confusion between the courts – and potentially puts human rights even further at risk than they already are.

There is another potential reason that Corbyn might not want to be completely clear about this. If you support the European Court of Human Rights – which you should do if you support human rights – then that gives yet another reason to oppose Brexit. Whilst we’re still in the EU, it’s harder for the likes of Theresa May to achieve their aim of removing us from the ECHR – though technically, as noted, existing members may not be required to be signatories of the ECHR, that has not been tested and is highly unlikely. Keeping us in the EU provides another layer of protection for human rights. That, in these somewhat troubling times, might be crucial.

Fake with Jake…

Yesterday Jacob Rees-Mogg demonstrated one of the key techniques of ‘fake news’ – not once, but twice – and at the same time showed quite how difficult it will be to do anything meaningful to address ‘fake news’. Most of the attempts to address ‘fake news’ have centred on the most obvious symptoms – items that are individually and specifically ‘faked’, or accounts specifically designed to distribute this kind of fake news. Jacob Rees-Mogg’s actions yesterday did not involve either of those. Rather, it took ‘real’ news from reputable sources, deliberately misinterpreted it, using the headlines in a way they were not intended, to help weave a fake narrative. Just as fake, even more damaging, and much harder to fight.

Here is the first:

The source is impeccable: the Irish Examiner, a reputable newspaper, quoting the Irish PM, the Taoiseach. And yet the interpretation by Rees-Mogg is almost entirely fake. The article does not say what Rees-Mogg says at all – this is how it quotes Varadkar in the text:

If you look at the detail of the piece, the nuance comes out. Varadkar says that no hard border will be required the moment of no deal, because up until that point there will be a de-facto alignment of customs, but the moment there is divergence a border will be required. That does not mean that no deal means no need for the backstop: precisely the opposite. It is exactly why a backstop is required: to be ready for this divergence, should it be about to happen.

Could Rees-Mogg be interpreting the piece incorrectly in error? Or is it deliberate, assuming that most of his followers won’t even bother reading the piece and will take his summary as the truth. The number of retweets and likes suggests that this last part – the acceptance of his interpretation – is at least true. As for his intentions, that, ultimately, is a matter for him. The second example, however, makes it harder to maintain the ‘innocent error’ explanation…

This time a not-quite-so-impeccable source – the Conservative Party – but quoting a much more reliable source, Forbes. Again, the headline all makes sense, but again Rees-Mogg’s interpretation goes directly against the content of the piece (which can be found here) from which the Conservative Party drew its conclusions:

Again, this is pretty much precisely the opposite of Rees-Mogg’s interpretation. Forbes are not saying that the UK will be even better outside the EU – but that being in the EU is one of the reasons that the UK has done well, and why this is highly unlikely to continue once we leave (let alone if we leave without a deal).

In both cases, the sources are good, but they are being used to spread a narrative that is essentially false. In both cases, as can be seen by the retweets and likes, this false narrative is being spread enthusiastically by Rees-Mogg’s followers. In neither case would any of the methods currently proposed for dealing with ‘fake news’ make the slightest difference to what has been done.

There are some lessons to be learned. The Irish Examiner should have been more careful about its tweet – the wording left it open for misinterpretation and misquotation. The rest of the media should be more critical and sceptical about politicians – Rees-Mogg needs to be challenged in every interview when he says things like this, as do politicians of all sides talking on all subjects. The only real weapon that we have against ‘fake news’, whether the directly fake or the fake narratives spread by Rees-Mogg and many more on both left and right (and indeed in the centre) is real news and a properly critical and sceptical media that focuses as much on accuracy as their own interpretation of impartiality.

Do I expect any of this to happen? Not really. The media has largely failed us in recent years, particularly over Brexit, and I don’t think there is much sign of it changing. It is too important, however, to just give up. We need to become cleverer, more ‘savvy’, more ‘media literate’, and keep fighting. That’s all there is left.

Thanks to @StevePeers and @DeclanButlerNat for pointing out the second story. You can find some of my academic work on fake news in my new book, The Internet, Warts and All, Free Speech, Privacy and Truth, and in my even newer piece on the role of Facebook, in the Northern Ireland Legal Quarterly, available online (and open access) here.

Fake news and fake vicars…

The furore over the ‘fake vicar’ on Newsnight has caused a lot of trouble – but some of the most important aspects of the story seem to have been missed, lost in amongst the anger, defensiveness, accusations and counter accusations. For some it is a storm in a teacup, for others evidence of conspiracies, for still more evidence that others believe in conspiracies. Lord Adonis suggested the BBC paid the ‘fake vicar’ as an actress, Emily Maitlis accused Lord Adonis of spreading fake news, and the official BBC News PR team denied everything – everything, that is, except what people were really bothered about. The idea that the BBC actually paid the fake vicar to appear as an actress playing the part of a panellist was never the real point of the story – and it’s so unlikely as to be a genuine conspiracy theory, and is therefore very easy indeed for the BBC to deny. There are, however, much bigger questions with much more disturbing possible answers that the story brings up. Were the BBC ‘played’ by the fake vicar? Were they careless in their research when recruiting her for their panel? And why, in the face of all this, do they find it so, so hard to admit to any kind of mistake, apologise, and help rebuild our trust – at a time when trust in the BBC hangs by a thread, and is of more importance than it has ever been?


‘Lynn’ appeared as a panellist on Newsnight, dressed, as can be seen, as a more or less traditional vicar – and yet that really was not who she was. As people on the internet quickly discovered, she was an actress – who incidentally had appeared a number of times on BBC programmes – who was also a ‘pastor’ of an obscure and distinctly dodgy internet-based church (the ‘Seeds of Wealth’ church). She also had pretty extreme views on Brexit, Islam and related subjects. What she clearly wasn’t was a vicar – and the Seeds of Wealth church does not appear to use old-fashioned C-of-E-style dog collars or anything like them. She was, to all intents and purposes, wearing a costume and playing a part.

Does this really matter? Why shouldn’t people of unusual and extreme views be allowed to be on panels on Newsnight? Here are the seeds of the problem. It’s not that she shouldn’t be allowed on Newsnight, and it’s not that extreme views shouldn’t be presented – but that deception should be avoided. This is where the ‘fakeness’ comes in, and where it fits with the pattern of fake news in general – part of what I research in my academic work. There is a chapter about it in my recent book, The Internet, Warts and All, and another academic piece just released about Facebook’s role in the fake news problem. One of the key lessons to learn from the study of Fake news is that it is rarely about things that are totally false, and rarely about trying to change people from one thing to quite another. It’s about ‘nudging’ and persuading, about taking nuggets of truth and distorting them, changing the focus, and gradually shifting people’s views or the intensity with which they hold those views. This is an old technique – Evelyn Waugh explained one aspect of it very well in his seminal novel about journalism, ‘Scoop’, in 1938:

“I read the newspapers with lively interest. It is seldom that they are absolutely, point blank wrong. That is the popular belief, but those who are in the know can usually discern an embryo of truth, a little grit of fact, like the core of a pearl, round which have been deposited the delicate layers of ornament.”

In this case, the little grit of fact was that Lynn was a pastor. Dressing her up as a conventional vicar is just a little shift, but changes the story. Having an obscure, weird, internet-church pastor say that she’s right behind Theresa May’s Brexit plan is one thing, having a respectable-looking middle-aged vicar say so is quite another. The details can be defended – indeed, the BBC has defended them quite vigorously – the overall story, however, is far harder to defend. Lynn was a fake vicar. In effect, she was a fake panellist. Newsnight, knowingly or unknowingly, was part of a fake story.

This fits with a pattern for the BBC – and for Newsnight in particular. Appearances matter, whether in the dog-collars of panellists or in the choices of backdrops. When Newsnight portrayed Jeremy Corbyn in front of the Kremlin, there was a similar fuss, but it similarly missed the point.


The focus of the attention on this picture was generally ‘was his hat photoshopped to look more Russian’, and again the BBC could and did vigorously defend itself on this point, and indeed provided evidence to back themselves up. This wasn’t a fake hat, just his usual hat in profile. And yes, they’d done a photo of Tory minister Gavin Williamson with the same Kremlin background in a previous programme. The difference was more subtle. Williamson was pictured away from the actual Kremlin, on the other side of the screen. He was wearing a suit, not looking in the slightest bit Russian – and of course the association between left-wing Corbyn and old-fashioned Communism makes the link much stronger.


Move on to Stephen Yaxley-Lennon – better known by his activist name of Tommy Robinson. In this case, they used one of Yaxley-Lennon’s own PR pictures as the basis of their backdrop for their special feature on him: a picture specially designed to suggest that the issues around him were about ‘gagging’ and restricting free speech, rather than contempt of court and other related issues. The debate was automatically framed by the picture.


In all these three cases the actions of the BBC are defensible – and defended – in the detail, but the overall effect is quite different, and much harder to defend. Appearances matter, as anyone involved in television must know. The big questions to ask are why these things happen – and this is where the conspiracy theories start to kick in. Personally, I do not subscribe to conspiracy theories often. Cock-up is generally far more likely than conspiracy – particularly where the BBC is involved. In relation to the fake vicar, I suspect it is much more to do with underpaid and overworked researchers not doing their job properly – and being ‘played’ by the fake vicar herself. As anyone involved in this kind of a programme will know, there are plenty of weirdos and extremists who work very hard to get on programmes like Newsnight, Question Time and so on – and plenty of people working to get their supporters on such programmes. They can be very persistent, they can work their contacts and so on. It’s entirely possible that this is what happened here. Lynn wanted to be on TV, and in particular on a programme like this. She wanted to get her views across, she wanted them to be taken seriously, and she found a way to do this.

The BBC somehow let her – and we will probably never find out how or why – because they will in all probability never admit what actually happened.  Acknowledging mistakes, misjudgments, or having been played seems to be something that the BBC finds unbelievably hard to do. Instead, as in all three cases above, they defend on the detail and refuse even to pay lip service to the bigger picture or the bigger issues involved. That is both sad and unhelpful, because it fuels exactly the conspiracy theories that the BBC should be opposing. If no errors are ever acknowledged, people find it easier to believe that the BBC is doing all this intentionally – and it erodes the trust that people still have in the BBC.

This last part is particularly important. In the era of fake news, what we need more than anything else is real and reliable news to counter it. The BBC could and should be a part of that, a place that fake news and conspiracy theories can be countered, an anchor point in a sea of misinformation and disinformation. At times of political turmoil this is critical – and it would be great if the BBC could find a way back from the edge. A starting point would be just to say ‘sorry, we got it wrong’. For the BBC, however, sorry seems to be the hardest word.

A few words on Freedom of Movement…

Early on in the Brexit ‘debate’ I was asked by someone ‘why do you care about freedom of movement? Why is it something that bothers you so much?’ It’s a question that has come up again and again ever since – and though I answer it as often as I have the energy it feels as though it will keep on coming up. It’s usually followed by a number of follow-up questions or statements that, if only those people saying them realised, explain exactly why I care about it, and why it bothers me. Rather than being, as people often suggest, a middle-class, privileged thing, it’s a critical right particularly for the working class, something of benefit to all. Rather than a tool for the neo-liberals to oppress the workers, to shunt people around Europe at a whim, it is a vital workers’ right and fits well into the long history and struggle by workers. It shifts power from the rich and powerful, the multinationals and the exploitative employers, to the workers. It’s something that those on the political left should support, not oppose.

Nothing to do with open borders

First and foremost, it needs to be clear that freedom of movement is not about open borders. Indeed, people might notice that in yesterday’s political declaration about the future relationship between the EU and the UK just two paragraphs after proclaiming the end of free movement, the aim of ‘visa-free’ travel for short term visits is declared.

Screenshot 2018-11-23 at 06.07.23

Even then, it wouldn’t have meant open borders. We have never had open borders in the UK – with the grand and vital exception of the border in Ireland – and freedom of movement has never meant that. We have always controlled our borders (again with the noted exception). Anyone who’s ever been on holiday abroad via airport, seaport or the channel tunnel knows that. The queues at passport control have never disappeared. That would have been so with Schengen, but we have never joined Schengen. So, no, freedom of movement isn’t about open borders.

Not a middle-class indulgence

‘You’re just upset because it’ll make your holidays in the South of France harder’, or ‘it’ll just stop Tarquin and Felicity going interrailling on their gap years’ or ‘you just want a villa in Tuscany’ are just a selection of the dismissive comments I’ve heard when I’ve defended freedom of movement. None of that is even close to the truth. It won’t make holidays in the South of France harder – it’s nothing about that. The rich and privileged have always been able to travel – money gives you that power. Even if visas become an issue, the rich know how to get them. The systems have always been designed to let them find a way. Bureaucracy works in their favour. Money talks. They have the knowledge and the contacts to work the systems – and the systems are weighted in their favour too. The upper classes have gone on ‘Grand Tours’ to Europe for centuries – and sent their daughters to ‘finishing schools’ in Switzerland and so forth since well before the idea of the EU had even been conceived. ‘Ex-pats’ can be found all around the world – whether freedom of movement exists or not.

It’s not just a neo-liberal thing

Another regular complaint – particularly from the left – is that freedom of movement is a tool of the neo-liberal right, to shunt workers around the world at a whim. In practice, this is the reverse of the truth. Removing freedom of movement will give the multinationals more power – the freedom of movement transferred their power to workers. This may seem counterintuitive. It needs to be thought through. What freedom of movement, in its EU form, does is give the individual worker the right to live and work in any of the member states. They don’t need a work visa, they don’t need a job offer, they don’t need to go through any special bureaucracy – just the ‘right to work’ checks that people will be familiar with when they apply for any job in the UK now. Show your passport or similar form of ID. That’s putting power in the hands of the worker.

Bureaucracy favours the rich…

If you don’t have that, then you have to institute some kind of bureaucratic procedure. The two most common aspects are points-based systems and the need for a job offer. Both of these are effectively anti-workers. Points-based systems are naturally biased depending on how the points are determined. They favour people who are more educated, for example – but they also favour people who are better at working their way through bureaucracy – form filling is never simple, as anyone who has ever claimed benefits should know. It puts people off. It’s used as a barrier, and has a ‘chilling effect’. It also puts more power in the hands of employers or agencies. ‘We’ll sort out your visa’ or ‘we’ll work the system for you’, so long as you accept our terms and conditions. Our lower wages, shorter terms etc etc. Gangmasters are empowered, not workers. And if the barriers are in place, this also empowers illegal gangmasters. If you can’t get in legally, then there’s more incentive to work ‘on the black’. If you fail to get a work visa, you’ll be more likely to seek out the criminal element. All round, removing freedom of movement is disempowering for workers, and empowering for the worst kind of employers.

Coming over here…

‘But it helps undercut wages and takes our jobs’. No, it really doesn’t. The evidence suggests that in the past it has been mainly beneficial to wages, except at the very lowest end – and this latter effect (described as infinitesimal by the author of the one report often cited by Leavers) is in itself very misleading. First of all it has come at a time when government policy has been very much anti-worker – if we had freedom of movement and a left wing government, those effects could be negated with stronger and better enforced employment laws. Higher minimum wages (and potentially rules linking executive pay to wages at the bottom end etc), stronger union rights and so forth could outweigh this effect. Moreover, the other consequences of removing freedom of movement – losing full access to the single market, raising prices etc – would mean that even if wages at the bottom end rose a little the cost of living for those earning those wages would increase even more, leaving those workers worse off.

Freedom of movement doesn’t hit jobs either – to think so is to fall for the ‘lump of labour fallacy’, that there is some fixed amount of work that needs to be divided up between however many workers are available. That isn’t how it works in practice, Immigration boosts economies and creates more jobs, both directly and indirectly. Immigrants are employers as well as employed. They consume, they use services, they live. They fill gaps in the market that make our economy more efficient – to the benefit of everyone overall. They’re not ‘coming over here, taking our jobs’ as often as they are ‘coming over here and doing the jobs that need to be done’.

Exploiters gonna exploit…

None of this is to suggest that exploitative employers don’t take advantage of freedom of movement. Of course they do. That’s how they operate. That doesn’t mean that shutting down freedom of movement will help – they’ll exploit the lack of freedom of movement just as much as they currently exploit its existence. They’ll work the systems, putting workers in a worse position. Again, history and understanding of the struggle for workers’ rights should show how this works. Removing the workers’ rights because of exploitative practice by employers isn’t just perverse it simply won’t work. What is needed is better protection for all workers from exploitation. Work on the employers, don’t take away the rights of the employed. Again, things like raising minimum wages and forcing better conditions and union rights are the key, not removing freedom of movement.

So why oppose freedom of movement?

Given all of this, why do people still oppose freedom of movement? This is why I get the most frustrated – and why this really is an issue that matters to me. The potential reasons for rejecting freedom of movement are all bad. One is that you don’t really understand what freedom of movement is. You equate it with ‘open borders’ and believe that open borders are a bad thing (the reasons for that may be even worse). You don’t believe the evidence that it’s not bad for wages and jobs – and policy based on a rejection of evidence is the worst of all. If you reject evidence, you should ask yourself why you reject it. Faced with two potential stories, and without the expertise to evaluate the two sources accurately, people tend to fall back on which of the stories fits with their presumptions. Their prejudices. That brings into play some other damaging myths.

Freedom of movement, benefits and the NHS

The two most common – and most depressing – are those of ‘health tourism’ and ‘benefits tourism’. The idea that people are ‘coming over here’ to take advantage of the NHS or to live of our ‘soft’ benefits system. Neither are true, and both are based on prejudice. Health tourism is minimal – and the NHS benefits massively from immigration and freedom of movement in particular, It’s critical to the staffing, and without it the crisis in the NHS will get far, far worse. Benefits tourism is similarly small – and freedom of movement rules allow member states to restrict it almost completely. That either health tourism or benefits tourism are significant problems are damaging myths pushed primarily by right-wing politicians and newspapers. And yet people believe them, even on the left of politics.

Freedom of movement and xenophobia

This, in the end, is the bottom line. Faced by strong evidence in favour of freedom of movement and evidence against freedom of movement that is questionable at best, why would people choose to believe the latter? The only obvious conclusion is that they generally don’t like foreigners and immigration. That means, in the end, xenophobia. Why would it matter that you get a British nurse rather than a Slovakian one, or a British plumber rather than a Pole? They’re not taking ‘our’ jobs, or lowering wages, they’re not costing us money in benefits or putting a strain on the health service, or even in education. Our housing problems are caused by chronic failure to build and a dysfunctional housing market, not on immigrants – and to solve that, surprisingly enough, we need to build more houses. The construction industry uses immigrant workers more than most – and if we want to build more houses this is likely to continue.

And anyway…

All of this misses the point overall. Freedom of movement is a reciprocal right – people seem to tend to forget that it’s not just about people coming to the UK but about UK people being able to live, work, love, marry and more in the rest of the EU. It’s a positive thing. It’s a freedom. By removing it we’re making ourselves less free. We’re taking something away from ourselves. We’re narrowing rather than broadening our horizons – and all for either a misunderstanding of the concept or a misinterpretation of the evidence – or worse, from xenophobia.

So yes, I care about freedom of movement. I want more of it. I want to expand and extend it beyond the EU – and this brings me to the last and perhaps most pernicious of myths, that freedom of movement within the EU is somehow unfair on the rest of the world. ‘Queue jumping’ as Theresa May put it. There are so many problems with this argument. Firstly, the EU has nothing to do with our immigration policies with the rest of the world. The limitations on Indians coming to the UK, for example, are imposed by us, not by the EU. Secondly, to believe that each immigrant from the EU coming here means one fewer from outside the EU should be allowed is to fall for another fallacy closely related to the lump of labour fallacy. It presumes we have a fixed capacity, that we’re nearly ‘full’. We don’t, and we aren’t. We’re not close to being ‘full’ – our population density isn’t even that high, and immigration can actually help us as the population grows, filling gaps where needed. Social care is just one example. The problems associated with our ageing ‘native’ population are made worse by restricting immigration.

And, last of all, look at the human element. Freedom of movement has enabled so many wonderful human stories. So many wonderful people coming to the UK – and wonderful people from the UK going to other places. So many love stories. So many cultural experiences. So much general enrichment. Why can’t we embrace that rather than making it a red line….


The Internet, Warts and All: Free Speech, Privacy and Truth

My new book, the Internet, Warts and All, has just been published. The subtitle – Free Speech, Privacy and Truth – gives and indication of its subject matter and scope: this is a wide-ranging, broad-brush book covering a great variety of different subjects, from some of the theoretical background to free speech, privacy and truth to specific subjects – there’s a chapter on surveillance, another on trolling, and one whose main subject is fake news.

The idea for the book originally came to an extent out of frustration: why are governments so bad at dealing with the internet? Why are their laws so often counterproductive, their policies incoherent, and their politicians’ speeches so full of rubbish? Why is it so difficult for people to see the consequences of their ideas – things like ‘real names’ policies or demanding back-doors for encryption? Why do they think it would be easy for tech companies to ‘deal’ with trolls if only they put enough effort into it? It isn’t only governments of course – the media, academia and the technology industry itself is often just as guilty.

The Internet, Warts and All attempts to cut through some of this. The basic premise is that we need to be better at seeing the bigger picture – and understanding that the messy, flawed, confusing and paradoxical nature of the internet is not something that can be ‘sorted out’ by more law or more effort. It’s part of how things work. It’s a strength of the internet, not a weakness.

The Internet, Warts and All is to a great extent intended as a ‘myth-busting’ book – many of the chapters take common assumptions about their subjects head on, from broad ideas like the permanence of material on the net and the ‘balance’ to be found between privacy and security (spoiler: it’s not a balance) to specifics such as the ‘organic’ or ‘neutral’ nature of Google search or Facebook’s ‘platform’. Some of the examples used may be quite familiar – laws like the Investigatory Powers Act, the trolling tale of GamerGate, the farrago that was the NHS’s – others less so, such as the mess that was Samaritans Radar and the tragic story of Brenda Leyland. They will, however, demonstrate that what is being discussed in the book isn’t just academic theory, but an observation of the reality of the internet as it is, and something about why that matters.

By its nature, The Internet, Warts and All, is very broad-brush, but it points to some of the excellent work done by academics in particular areas – researching the book has led me to read and appreciate the work of many great scholars even more.

The book is published by Cambridge University Press, and can be found here:

I shall be talking about the book – or at least some aspects of the book on a number of occasions in September:

Informally, at the SLS conference at QMUL (Sept 5-7)

At the wonderful GiKii in Vienna (Sept 13)

At New Scientist Live at the Excel Centre in London, on Sept 21st

At a public lecture for The Register at the Rugby Tavern, London, on Sept 27th

I hope at least some of these will be interesting – and I probably won’t be able to stop myself talking about the book on many more occasions.

Guest Post: Upskirting and Human Rights


(Source: Wikipedia)

Guest post by Matthew White

First of all, I’d like to apologise for the image used for this guest post. I’m sure you can imagine why.


This began whenGina Martin (@beaniegigi) was victim to upskirting, where an up-skirt photo or video is taken without permission/consent. Gina went to the police, but nothing happened. Gina decided to campaign to make upskirting a specific sexual offenceas has been argued by Clare McGlynn and Erika Rackley. An excellent summary of Gina’s campaign and the law surrounding voyeurism can be read at RightsInfoby Natasha Holcroft-Emmess (@NHEwrites), but essentially, Gina, her lawyer, Ryan Whelan (@ryantwhelan) and Liberal Democrat MP Wera Hobhouse (@Wera_Hobhouse) worked on a Private Members Billto make upskirting a sexual offenceunder the Sexual Offences Act 2003. This was formally supported by Ministers/Government.

But today, Conservative MP Christopher Chope, who has a marvellous history of being an absolute turd, blocked the Private Members Bill and set it back for another attempt on 6 July. If you’re reading this blog post, I don’t think I need to redirect you to the criticisms of this man, because you’ve probably already read them. Gina did notethat she will meet and discuss the Bill with Christopher Chope MP, but the human rights implications are still a live issue.

A Human Rights Issue?

Article 8

This was touched upon by Natasha Holcroft-Emmess in her post for Rights Info. But Article 8 of the European Convention on Human Rights, the Conservatives favourite Convention Right says 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.

Article 8 is usually a ‘please leave me alone’ right, where the State should do just that (negative obligations). Article 8 does not have an exhaustive definition (Bărbulescu v Romania, (para 70)), but it can encompass many aspects such as one’s physical and moral integrity, including of one’s sexual life (X and Y v Netherlands, (para 22)). It also encompasses one’s psychological integrity (Pretty v UK, (para 61).

Not only should States generally leave us alone, there are circumstances where they should intervene, this is called a positive obligation. The European Court of Human Rights(ECtHR) summarises this:

The Court recalls that although the object of Article 8 (art. 8) is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (X and Y v Netherlands, (para 23)).

In X and Y, the ECtHR found a violation of Article 8 because there wasno lawin place that allowed complaints to be made on behalf sexually abused mentally (who do not have the capacity to complain themselves) handicapped people (para 28-30). Where essential aspects of private life are at stake, efficient criminal law is required (KU v Finland, (para 43)). Requiring criminal law does not require the seriousness of the occurrences in X and Ybecause upskirting is not trivial, it is criminal (KU v Finland, (para 45)). This is more important as the ECtHR recalls that:

[S]exual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to State protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives (KU v Finland, (para 46)).

Given that upskirting has affected girls as young as 10, criminal sanction becomes more pressing. And so because Christopher Chope MP decided to be a supreme turd, he has put the UK at divergence with its obligations under the ECHR.

Article 14 you say?

Is there another issue under the ECHR that might be relevant to this discussion? Possibly. Article 14 is the anti-discrimination right and is only relevant when a substance Convention Right (i.e. Article 8) is applicable(which it is). The ECtHR has said that Article 14 does not:

[P]rohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article (Stec and Others v UK, (para 51)).

The factual inequality here is that upskirting primarily affects females. This is not to say that the Bill should only create an offence where only women can be the victims of said crime. I’m saying that the reality is that it is primarily women who are affected by this crime, and by doing nothing, primarily women will suffer. To ignore this inescapable fact is to remove the utility of Article 14.


Simply put, the actions of Christopher Chope MP in denying criminalising upskirting is an affront to human rights. It’s a violation in terms of the violation of Article 8 rights of females, especially the young as the State’s protection of them is paramount. It’s a violation of Article 14 combined with Article 8 because it ignores the reality that females are the targets of this crime.

Guest post: Data Retention: I can’t believe it’s not lawful, can you? A response to Anthony Speaight QC

Guest post by Matthew White


Ladies and gentlemen, Bagginses and Boffins. Tooks and Brandybucks. Grubbs! Chubbs! Hornblowers! Bolgers! Bracegirdles! Proudfoots. Put your butter away for I am about to respond, rebut, rebuke and more to a recent blog post for Judicial Power Project, by Anthony Speaight QC on data retention.

Blanket data retention is unlawful, please deal with it:

Speaight starts off by referring to the recent Court of Appeal (CoA) judgment in  Tom Watson and Others v Secretary of State for the Home Department [2018] EWCA Civ 70 and how the Court of Justice of the European Union (CJEU) has created problems and uncertainties with regards to data retention. As David Allen Green would say, ‘Well…’ Well, just to be clear, the position of the CJEU on blanket indiscriminate data retention is crystal clear. It . Is . Unlawful . It just happens that the CoA took the position of sticking their fingers in their ears and pretending that the CJEU’s ruling doesn’t apply to UK law, because its somehow (it’s not) different.

Just billing data is retained? Oh really?

Next, Speaight recaps the data retention saga so far, in that telecommunications companies have always recorded who uses their services, when and where, often for billing purposes. A long time ago, in a galaxy far, far away (a few years ago, and anywhere with an internet connection) this position was a robust one. But the European Commission (Commission) in 2011 highlighted that:

[T]rends in business models and service offerings, such as the growth in flat rate tariffs, pre-paid and free electronic communications services, meant that operators gradually stopped storing traffic and location data for billing purposes thus reducing the availability of such data for criminal justice and law enforcement purposes.

So, in a nutshell, data for billing purposes are on the decrease. This would explain why the Data Retention Directive (DRD) (discussed more below) affected:

[P]roviders of electronic communication services by requiring such providers to retain large amounts of traffic and location data, instead of retaining only data necessary for billing purposes; this shift in priority results in an increase in costs to retain and secure the data.

So, it’s simply untrue to refer to just billing data when talking about data retention, because this isn’t the only data that is or has ever been sought.

It’s the Islamists fault why we have data retention:

Speaight next points out that it was the advent of Islamist international terrorism that made it advantageous to place data retention obligations on companies. Oh really? Are we going down this route? Well….. demands for data retention can be traced back to the ‘International Law Enforcement and Telecommunications Seminars’ (ILETS) (6) and in its 1999 report, it was realised that Directive 97/66/EC (the old ePrivacy Directive) which made retention of communications data possible only for billing purposes was a problem. The report sought to ‘consider options for improving the retention of data by Communication Service Providers.’ Improve? Ha. Notice how 1999 was before 9/11? Funny that.

It doesn’t stop there though. A year later (still before 9/11), the UK’s National Crime and Intelligence Service (NCIS) made a submission (on behalf of the Mi5/6, GCHQ etc) to the Home Office on data retention laws. They ironically argued that a targeted approach would be a greater infringement on personal privacy (para 3.1.5). Of course, they didn’t say how or why this was the case, because, reasons. Charles Clarke, the then junior Home Office Minister, and Patricia Hewitt, an ‘E-Minister’ both made the claim such proposals would never happen (Judith Rauhofer, ‘Just Because You’re Paranoid, Doesn’t Mean They’re Not After You: Legislative Developments in Relation to the Retention of Communications Data’ (2006) SCRIPTed 3, 228; Patricia Hewitt and Charles Clarke, Joint letter to Independent on Sunday, 28 Jan 2000) and should not be implemented (Trade and Industry Committee, UK Online Reviewed: the First Annual Report of the E-Minister and E-Envoy Report (HC 66 1999-2000), Q93).

Guess what? A year later Part 11 of the Anti-terrorism, Crime and Security Act 2001 (ATCSA 2001) came into force three months after 9/11 (Judith Rauhofer, 331). The Earl of Northesk, however, pointed out that ‘there is no evidence whatever that a lack of data retained has proved an impediment to the investigation of the atrocities’ on 9/11 (HL Deb 4 Dec vol 629 col. 808-9). What this demonstrates is that data retention was always on the cards, even when its utility wasn’t proven, where the then Prime Minister Tony Blair, noted that ‘all the surveillance in the world’ could not have prevented the 7/7 bombings. It’s just that as Roger Clarke succinctly puts it:

“[M]ost critical driver of change, however, has been the dominance of national security extremism since the 2001 terrorist attacks in the USA, and the preparedness of parliaments in many countries to grant law enforcement agencies any request that they can somehow link to the idea of counter-terrorism.” (Roger Clarke, ‘Data retention as mass surveillance: the need for an evaluative framework’ (2015) International Data Privacy Law 5:2 121, 122).

Islamic terrorism was just fresh justification (7,9) for something that ‘the EU governments always intended to introduce an EC law to bind all member states to adopt data retention.’ Mandatory data retention was championed by the UK during its Presidency of the European Council (Council) (9) (and yes, that includes the ‘no data retention from us’ Charles Clarke (who was accused of threatening the European Parliament to agree to data retention (9))) and described as a master class in diplomacy and political manoeuvring (Judith Rauhofer, 341) (and they say it’s the EU that tells us what to do!!). Politicians goin’ politicate. Yes, the DRD makes reference to the Madrid bombings, but the DRD was not limited to combating terrorism (6), just as the reasons for accessing communications data in UK law under s.22 of the Regulation of Investigatory Powers Act 2000 (RIPA 2000) were not solely based on fighting terrorism. There is nothing wrong with saying that data retention (yeah, but not blanket, of course) and access to said data can be important in the fight against Islamist terrorism, but would you please stop pretending that was the basis on which data retention was sought?

Data retention was smooth like rocks:

Next, Speaight points to the ‘smooth operation’ of the data retention system. Smooth how and in what ways? Harder to answer that is, yess! Well….. in 2010, the Article 29 Working Party (WP29) pointed out that ‘the lack of available sensible statistics hinders the assessment of whether the [data retention] directive has achieved its objectives.’ The WP29 went further pointing out that there was a lack of harmonisation in national implementation of the DRD (2). This was, the purpose of the DRD (harmonising data retention across the EU), and it didn’t even achieve what it set out.

What about its true purpose? You know, spying on every EU citizen? Well the European Data Protection Supervisor (EDPS) responded to the Commission’s evaluation of the DRD. WARNING: EDPS pulls no punches. First, the EDPS reiterated that the DRD was based upon the assumption of necessity (para 38). Secondly, the EDPS criticised the Commission’s assertion that most Member States considered data retention a necessary tool when conclusions were based on just over a third (that’s less than half, right?) of them (para 40). Thirdly, these conclusions were in fact, only statements (para 41). Fourthly, the EDPS highlighted there should be sufficient quantitative and qualitative information to assess whether the DRD is actually working and whether less privacy intrusive measures could achieve the same result, information should show the relationship between use and result (43).

Surprise, surprise, the EDPS didn’t find sufficient evidence to demonstrate the necessity of the DRD and that further investigations into alternatives should commence (para 44). Fifthly, the EDPS pretty much savaged the quantitative and qualitative information available (para 45-52). A few years later, the CJEU asked for proof of the necessity of the DRD. There was a lack of statistical evidence from EU Member States, the Commission, the Council and European Parliament, and despite that, they had the cheek to ask the CJEU to reject the complaints made by Digital Rights Ireland and others anyway (ibid). Only the Austrian government were able to provide statistical evidence on the use (not retention) of communications data which didn’t involve any cases of terrorism (ibid). The UK’s representatives admitted (come again? The UK admits something?) there was no ‘scientific data’ to underpin the need of data retention (ibid), so the question begs, wtaf had the DRD been based upon? Was it the assumption of necessity the EDPS referred to? Draw your own conclusions. The moral of the story is that the DRD did not operate smoothly.

Ruling against data retention was a surprise?

Speaight then moves onto the judgment that started it all, Joined Cases C‑293/12 and C‑594/12, Digital Rights Ireland in which the CJEU invalidated the DRD across the EU. According to Speaight, this came as a ‘surprise.’

I felt a great disturbance in the Law, as if thousands of spies, police, other public authorities, politicians and lawyers suddenly cried out in terror, as the State were suddenly unable to spy anymore. I fear something terrible has happened.

So, who was surprised? Was it the European Parliament who had initially opposed this form of data retention as they urged its use must be entirely exceptional, based on specific comprehensible law, authorised by judicial or other competent authorities for individual cases and be consistent with the European Convention on Human Rights (ECHR)? Was it a surprise to them when they also noted that that ‘a general data retention principle must be forbidden’ and that ‘any general obligation concerning data retention’ is contrary to the proportionality principle’ (Abu Bakar Munir and Siti Hajar Mohd Yasin, ‘Retention of communications data: A bumpy road ahead’ (2004) The John Marshall Journal of Computer & Information Law 22:4 731, 734; Clive Walker and Yaman Akdeniz, ‘Anti-Terrorism Laws and Data Retention: War is over?’ (2003) Northern Ireland Legal Quarterly 54:2 159, 167)?

Was it a surprise to Patrick Breyer who argued that data retention was incompatible with Articles 8 and 10 of the ECHR back in 2005 (372, 374, 375)? Was it a surprise to Mariuca Morariu who argued that the DRD had failed to demonstrate its necessity (Mariuca Morariu, ‘How Secure is to Remain Private? On the Controversies of the European Data Retention Directive’ Amsterdam Social Science 1:2 46, 54-9)? Was it a surprise to Privacy International (PI), the European Digital Rights Initiative (EDRi), 90 NGOs and 80 telecommunications service providers (9) who were against the DRD? Was it a surprise to the 40 civil liberties organisations who urged the European Parliament to vote against the retention of communications data?

Was it a surprise to the WP29, the European Data Protection Commissioners, the International Chamber of Commerce (ICC), European Internet Services Providers Association (EuroISPA), the US Internet Service Provider Association (USISPA), the All Party Internet Group (APIG) (Abu Bakar Munir and Siti Hajar Mohd Yasin, 746-749) and those at the G8 Tokyo Conference? Hell, even our own assistant Information Commissioner, Jonathan Bamford, back in 2001 wouldn’t be surprised because he said ‘Part 11 isn’t necessary, and if it is necessary it should be made clear why’ (HL Deb 27 Nov 2001 vol 629 cc183-290, 252). Was it a surprise when prior to Digital Rights Ireland:

Bulgaria’s Supreme Administrative Court, the Romanian, German Federal, Czech Republic Constitutional Courts and the Supreme Court of Cyprus all [declared] national implementation of the DRD either invalid or unconstitutional (in some or all regards) and incompatible with Article 8 ECHR?

Was Jules Winnfield surprised?

The point I’m trying to hammer home is that (you’ve guessed it), the CJEU’s ruling in Digital Rights Ireland should come as no surprise. Still on the issue of surprise, for Speaight it was because it departed from decisions of the European Court of Human Rights (ECtHR) and the CJEU itself. Ok, let’s look at these ECtHR cases Speaight refers to. The first is Weber and Saravia v Germany, a case on ‘strategic monitoring.’ This is a whole different kettle of fish when compared to the DRD as this concerned the surveillance of 10% (I’m not saying this is cool either btw) [30, 110] of German telecommunications, not the surveillance of ‘practically the entire European population’ [56]. Ok, that may have been an exaggeration by the CJEU as there are only 28 (we’re not so sure about one though) EU Member States, but the point is, the powers in question are not comparable. The DRD was confined to serious crime, without even defining it [61]. Whereas German law in Weber concerned six defined purposes for strategic monitoring, [27] and could only be triggered through catch words [32]. In Digital Rights Ireland, authorisation for access to communications data in the DRD was not dependent upon ‘prior review carried out by a court or by an independent administrative body’ [62] where in Weber this was the case [21, 25]. Apples and oranges.

The second ECtHR case was Kennedy v UK, and it’s funny that this case is brought up. The ECtHR in this case referred to a previous case, Liberty v UK in which the virtually unfettered power of capturing external communications [64] violated Article 8 of the ECHR [70]. The ECtHR in Kennedy referred to this as an indiscriminate power [160, 162] (bit like data retention huh?), and the UK only succeeded in Kennedy because the ECtHR were acting upon the assumption that interception warrants only related to one person [160, 162]. Of course, the ECtHR didn’t know that ‘person’ for the purposes of RIPA 2000 meant ‘any organisation and any association or combination of persons,’ so you know, not one person literally.

And this was, of course, prior to Edward Snowden’s bombshell of surveillance revelations, which triggered further proceedings by Big Brother Watch. A couple of years ago, in Roman Zakharov v Russia, the ECtHR’s Grand Chamber (GC) ruled that surveillance measures that are ‘ordered haphazardly, irregularly or without due and proper consideration’ [267] violates Article 8 [305]. That is because the automatic storage of clearly irrelevant data would contravene Article 8 [255]. This coincides with Advocate General (AG) Saugmandsgaard Øe’s opinion that the ‘disadvantages of general data retention obligations arise from the fact that the vast majority of the data retained will relate to persons who will never be connected in any way with serious crime’ [252]. That’s a lot of irrelevant data if you ask me. Judge Pinto de Albuquerque, in his concurring opinion in Szabo and Vissy v Hungary regards Zakharov as a rebuke of the ‘widespread, non-(reasonable) suspicion-based, “strategic surveillance” for the purposes of national security’ [35]. So, I’d say that even Weber v Saravia is put into doubt. And so, even if the CJEU rules that data retention in the national security context is outside its competence, there is enough ECtHR case law to bite the UK on its arse.

Probably the most important ECtHR case not mentioned by Speaight (why is that?) is that of S and Marper v UK, this is the data retention case. Although this concerned DNA data retention, the ECtHR’s concerns ‘have clear applications to the detailed information revealed about individuals’ private lives by communications data.’ What did the GC rule in S and Marper? Oh, was it that blanket indiscriminate data retention ‘even on a specific group of individuals (suspects and convicts) violated Article 8’? Yes, they did and it was S and Marper to which the CJEU referred to on three separate occasions in Digital Rights Ireland [47, 54-5]. Tele 2 and Watson (where the CJEU reconfirmed that blanket indiscriminate data retention is prohibited under EU law) is just the next logical step with regards to communications data. And so far from being surprising, the CJEU in Digital Rights Ireland and Tele2 and Watson are acting in a manner that is consistent with the case law of the ECtHR.

The CJEU case law that Speaight refers to is Ireland v Parliament and Council which was a challenge to the DRD’s legal basis, not whether it was compatible with the Charter of Fundamental Rights, so I’m not entirely sure what Speaight is trying to get at. All in all, Speaight hasn’t shown anything to demonstrate that Digital Rights Ireland has departed from ECtHR or CJEU case law.

You forgot to say the UK extended data retention laws:

Speaight then rightly acknowledges how the UK government replaced UK law implementing the DRD with the Data Retention and Investigatory Powers Act 2014 (DRIPA 2014) in lightspeed fashion. What Speaight omits, however, is that DRIPA 2014 extended retention obligations from telephone companies and Internet Service Providers (ISPs) to Over-The-Top (OTT) services such as Skype, Twitter, Google, Facebook etc. James Brokenshire MP attested that DRIPA 2014 was introduced to clarify what was always covered by the definition of telecommunications services (HC Deb 14 July, vol 584, 786). This, of course, was total bullshit (5), but like I said, politicians goin’ politicate.

Claimants don’t ask questions, courts do:

Speaight moves onto the challenges to DRIPA 2014, we know the story already, the High Court (HC) said it was inconsistent with Digital Rights Ireland, whereas the CoA disagreed, blah, blah. Speaight points out that the claimants had no issue with data retention in principle, which is true, but so what? Speaight also points out that the CJEU went further than what the claimants asked by ruling that blanket indiscriminate data retention was not permissible under EU law. Wait, what the fark? It’s not the bloody claimants’ that ask the CJEU a question on the interpretation of EU law as I’m pretty sure it was the Swedish referring court (via Article 267 of the Treaty on the Functioning of the EU, you know, a preliminary reference) that asked the CJEU:

Is a general obligation to retain traffic data covering all persons, all means of electronic communication and all traffic data without any distinctions, limitations or exceptions for the purpose of combating crime (as described [below under points 1-6]) compatible with Article 15(1) of Directive 2002/58/EC, 1 taking account of Articles 7, 8 and 15(1) of the Charter?

And the CJEU said no. End of discussion.

The ends don’t always justify the means and for clarity, the CJEU didn’t reject shit:

Speaight also says that the CJEU in Tele2 and Watson rejected AG Saugmandsgaard Øe’s advice that the French governments found access to communications data useful in its investigations into terrorist attacks in 2015. Such a position however, falls victim to several questions, such as under what circumstances was the data sought? Was it accessed as a consequence of the legal obligation to retain? Or was it already retained for business purposes? What were the results of the use of that data? Could the same results have been achieved using less intrusive means? Saying it is useful tells us nothing as the ECtHR has plainly said necessity (in a democratic society) is not as flexible as expressions such as ‘useful’ [48], and as the CJEU rightly noted, a measure in and of itself, even in the general interest cannot justify general indiscriminate data retention [103]. This demonstrates that the CJEU didn’t reject anything, they didn’t even refer to the French government’s evidence, they just said as fundamental as fighting serious crime may be, and the measures employed, cannot by themselves justify such a fundamental departure from the protection of human rights. Just because you can, doesn’t mean you should. A certain ECtHR said something similar in Klass v Germany in that States ‘may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate’ [49].

The CJEU doesn’t have to answer what it wasn’t asked:

Speaight then whines about the CJEU not addressing the issue of national security, well they weren’t asked about national security in Tele2 and Watson, were they? Like I said, even if the CJEU doesn’t have competence to rule on national security based data retention, Roman Zakharov is watching you from Strasbourg (he’s not actually in Strasbourg, I don’t think, but you dig).

What’s your problem with notification?

Speaight also bemoans the obligation to notify saying this requirement could damage investigations and surveillance and went beyond what the claimants had asked. Well, again, the claimants weren’t asking the questions, ffs, and the CJEU made this point by referring to previous case law, notably, Schrems [95]. The CJEU made very clear that notification should be done ‘as soon as that notification is no longer liable to jeopardise the investigations being undertaken by those authorities’ [121]. This is consistent with the ECtHR’s stance. Both courts are aware that notification can defeat the purpose of the investigation, and sometimes even after it has concluded, notification may still not be appropriate. But Speaight seems to omit this crucial detail.

Lawyers getting mad:

Speaight notes that criticism of Tele2 is not confined to Eurosceptics. Sure, but you don’t have to be a Europhile to defend it either. He also noted that it was roundly condemned by all the participants at a meeting of the Society of Conservative Lawyers. Well, no shit to my Sherlock, the name kinda gave it away. He also notes that the former Independent Reviewer of Terror law, David Anderson QC, said it was the worst judgment he knew of. Wait til Anderson reads the ECtHR’s case law on this matter then, which if anything, on proper reading goes further than Tele2. Speaight also points out that Demonic Grieve QC MP was pissed and that a well distinguished member of the French Bar, Francois-Henri Briard basically saying we need more conservative judges to trample on fundamental rights. If a judgment that protects the fundamental rights of all EU citizens pisses off a few lawyers, so be it.


I’ve spent way too much time on Speaight’s post, and the really sad thing is, I’ve enjoyed it. It’s hard to have a conversation about data retention when you first have to sift through a load of bollocks, and there was plenty of bollocks, just to make your point. And by the time you’ve cleared through all the falsities and misleading or exaggerated points, you run close to 4k words without actually saying what your position is. So, my position for this blog post is, we should always shoot down rubbish when it shows its ugly face or else it festers. Actually, the point is, I can believe that blanket indiscriminate data retention is unlawful.