The Bill that was not killed – The Police, Crime, Sentencing and Courts Act 2022: Article 11 ECHR Compliant or not?

Puja Patel highlights how the Police, Crime, Sentencing and Courts Act 2022 threatens the right to protest in the UK, and critically examines the Act’s incompatibility with the European Convention on Human Rights.

Right back from when the Police, Crime, Sentencing and Courts Act 2022 (the ‘Act’) was merely a developing embryo in the Parliamentary womb, the shockwaves it sent through the country were tangible. ‘Kill the Bill’ protests took place around the country but despite this, on 28^th April 2022, the Bill crystallised into a law which now wields the power to outlaw the very protests which were staged to prevent its enactment. 

Protest is a powerful mechanism for accountability and has served as an essential instrument for change throughout human history; as articulated by Lord Denning, the right to protest is in the ‘public interest’ and is ‘often the only means by which grievances can be brought to the knowledge of those in authority…with such impact as to gain a remedy’^[i]. The fundamental nature of the right to protest is reflected by the inclusion of the right to peaceful protest within Article 11 of the European Convention on Human Rights (ECHR).

In clear breach of Article 11 ECHR, the Act would have outlawed the protests of the suffragettes in 1903-1918to secure the vote for women, Gandhi’s peaceful protests to liberate India from the British Empire, and the civil rights desegregation movement in the US. The consequences of this legislation are therefore dire; depriving citizens of their right to protest against the State and constituting a clear human rights violation and a bold exercise of authoritarian power.

Is the Act compliant with Article 11 ECHR?

The Act is not compatible with Article 11 ECHR. Whilst the Government claim that the Act pursues the legitimate aim of protecting the rights and freedoms of others^[ii], the Act does not comply with the legality and proportionality requirements set out in Article 11(2) ECHR.  

The Act makes five key changes to existing legislation under the Public Order Act 1986 (‘POA’) which directly impact the ability of the police to interfere with protests/processions.

Change 1 – outlawing protests/processions with ‘impact’

Pre-Act, a senior police officer had the power to impose such conditions upon a procession/assembly as appear to them necessary to prevent disorder, damage, disruption or intimidation^[iii]. The Act extends this power by empowering the senior police officer to impose such conditions upon a procession/assembly as appear necessary to prevent ‘impact’. 

Protest is inherently impactful. Notably, the legislation did not restrict the scope of these powers to ‘damaging’ or ‘dangerous’ impact, meaning that all and any protest is caught within the scope of this provision. Peaceful protest, non-disruptive protest, even silent protest will all create impact, and therefore police officers could lawfully interfere with any protest. This breaches the legality requirement of Article 11(2) as the unqualified scope of ‘impact’ renders this provision insufficiently clear and lacking in legal safeguards against arbitrary interferences by public authorities^[iv].

Likewise, the proportionality requirement of Article 11(2) was also breached because there were less restrictive means to achieve the government’s aim which would have struck a fairer balance between individuals and community interests^[v] such as restricting the scope of this provision to ‘damaging’ or ‘dangerous’ impact.

Change 2 – Suppressing protests/processions which may result in ‘noise’^[vi] which can cause ‘serious disruption’

The Act extends the power of a senior police officer to impose conditions to circumstances where the procession/assembly merely result in ‘noise which can seriously disrupt activities of nearby organisations’^[vii] which is defined as ‘where persons connected with the organisation not being reasonably able, for a prolonged period of time, to carry on in that vicinity the activities or any one of them’^[viii].

The legality requirement may arguably be met here; the Act provides a comprehensive, albeit non-exhaustive, definition of ‘serious disruption’^[ix]. However, there is a clear breach of the proportionality requirement. It is noteworthy that the protest need not cause actual serious disruption; the police are entitled to assess whether the protest ‘may’ cause such noise, and may therefore pre-emptively interfere. It is difficult to envision a protest which the police cannot argue ‘may’ result in noise which could theoretically meet the Act’s definition of serious disruption to the activities of nearby organisations. 

Illustrative example: A small group of protestors chanting in a park, could meet this definition. The noise need only be capable of preventing someone in a nearby organisation from completing any one activity e.g. someone may not be able to hold a meeting due to the noise. Whilst this may be annoying and inconvenient, protest is a fundamental right, whereas a meeting can be rescheduled or held elsewhere. Moreover, it is not necessary that the protest create any such noise or prevent any such meeting taking place; in order to interfere, the police need only deem the protest capable creating noise which is capable of preventing such a meeting.

This clearly demonstrates why the scope of ‘serious disruption’ which entitles the police to interfere is simply too broad.

Less restrictive means were available, such as defining disruption to mean significant and prolonged harm to fundamental rights and freedoms (such as those protected by the ECHR) like access to healthcare or religion. 

Change 3 – Suppressing protests/processions which may result in noise which has a ‘relevant and significant impact’^[x]

The Act also enables the same police power to be deployed if the procession/assembly may result in noisewhich has a ‘relevant’ and significant impact on the persons in the vicinity of the processions^[xi].

The legality requirement may be met, since a definition of relevant impact was provided: where it may result in intimidation/harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity or it may cause such persons to suffer alarm or distress^[xii]. 

The proportionality requirement is clearly breached; the definition of relevant impact brings all protests, including peaceful, non-disruptive protest, within its scope. 

Illustrative example: Two people standing outside the office of an oil company chanting a slogan (‘Oil kills our planet’) can fall within the scope of ‘relevant impact’ and the police can therefore lawfully interfere. The two people chanting the slogan may cause the firm’s employees ‘reasonable firmness’ to feel ‘alarm or distress’. However, empowering the police to interfere with this protest is blatantly disproportionate; it is peaceful, it does not even obstruct the doorway and the protestors are on public pavements and not trespassing. 

Less restrictive means clearly exist to regulate protest and to achieve the government’s aim, such as qualifying the scope of this provision to ‘significantly harmful or dangerous impact’.

Change 4 – lowering the threshold for sanctions; dispensing with the requirement for ‘knowledge’ in order to incur liability ^[xiii]

The Act lowers the previous threshold for protestors to commit a public order offence by stating that a person is guilty at the time the person fails to comply with a condition the person knew or ought to have known was imposed^[xiv]. This dispenses with the requirement for a person to knowingly fail to comply (subjective mens rea). Instead, the Act renders mere failure to comply with a condition (objective standard) an offence. Whilst this meets the legality criteria, it is disproportionate. 

As articulated by Dr Richard Martin, Assistant Professor of Law at LSE, the Act has allowed ‘more intrusive restrictions to be placed on the right to peaceful protest’ through creating ‘lower thresholds and lesser safeguards’^[xv] against interference. Change 4 is the prime example of this. 

Illustrative example: In a larger-scale protest, if a few individuals breach a condition of the protest, everyone involved is now committing an offence by participating in a protest which breaches the imposed conditions. Without the requirement for subjective intention to fail to comply, all protestors are now liable. Those merely peacefully exercising their Article 11 rights will now also be punished. This is disproportionate, particularly when one considers the increasing ease with which police can impose conditions upon protests/processions (see Changes 1-3). Whilst it is a defence for protestors to prove that failure to comply arose from circumstances beyond their control, this would only retrospectively exonerate them from liability and would not prevent the interference with their protest. Moreover, the existence of sanctions inherently constitutes an interference and restriction on the right to protest; this is explored below.

The ‘chilling effect’

Punitive measures mean restrictions on the right to protest^[xvi] since sanctions which deter and discourage people (the ‘chilling effect’) from partaking in demonstrations constitute an interference.^[xvii] The option for retrospective judicial redress is largely nullified by the legal cost barriers to judicial review, with dramatic cuts to legal aid funding resulting in a falling number of judicial review claims (Lomri, 2019). In any case, as commentator Mead correctly observes, ‘we should not have to rely on going to court to have our rights upheld’^[xviii]. Therefore, sanctions should be imposed only when strictly necessary. The lack of requirement for subjective knowledge under the Act therefore constitutes a disproportionate interference.

Change 5 – interfering with one-person protests^[xix]

For the same reasons as Changes 1 and 2, the Act’s conferral of power upon police officers to interfere with one-person protests breaches Article 11 ECHR.

Additionally, the argument that it is proportionate to deploy the same legal powers upon one-person protests as protests conducted by a thousand people is, at best, difficult to sustain. 

Conclusion:

The Act is incompatible with the ECHR, breaching the legality and proportionality requirements set out in Article 11(2) ECHR.  Urgent reform is needed; however, it remains to be seen how such change can be effected now that the democratic mouthpiece of protest has been effectively removed from the public voice….

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^[i] Hubbard v Pitt [1976] QB 142

^[ii] Government Policy Paper, Public Order Bill: Factsheet [online] Available at: https://www.gov.uk/government/publications/public-order-bill-overarching-documents/public-order-bill-factsheet#:~:text=Sections%2012%20and%2014%20of,an%20organisation%20by%20noise%3B%20serious

^[iii] Public Order Act 1986, s12 and s14

^[iv] Lashmankin and Others v. Russia, nos. 57818/09 ECHR 2017 [410]          

^[v] DPP v Ziegler [2021] UKSC 23 [16]

^[vi] Police, Crime, Sentencing and Courts Act 2022, s73 and s74

^[vii] Public Order Act 1986, s12(1)(aa) and s14(1)(aa)

^[viii] Public Order Act 1986, s12(2C) and s14(2C)

^[ix] Defined in s12(2A) Public Order Act 1986 as where the procession/assembly may result in prolonged disruption of access to any essential goods or any essential service (in particular (non-exhaustive list): money, water, energy, fuel, system of communication, place of worship, transport facility, educational institution, service relating to health, or where the procession/assembly may result in significant delay to a time-sensitive product being delivered to consumers (s12(2A) and s14(2A) Public Order Act 1986); ‘time-sensitive’ is defined as a product whose value/use to consumers may be significantly reduced by a delay in supplying that product (s12(2B) s14(2B) Public Order Act 1986).

^[x] Police, Crime, Sentencing and Courts Act 2022, s73 and s74

^[xi] Public Order Act 1986, s12(1)(ab) and s14(1)(ab)

^[xii] Public Order Act 1986, s12(2D) and s14(2D)

^[xiii] Police, Crime, Sentencing and Courts Act 2022, s75

^[xiv] Public Order Act 1986, s12(5A) and s14(5A)

^[xv] Martin, R. (2021). ‘The Protest Provisions of the Police, Crime, Sentencing and Court Bill: A Modest Reset of the Scales?’ Criminal Law Review 1008

^[xvi] Ezelin v. France, no.11800/85, ECHR 1991 [39]

^[xvii] Bączkowski and Others v. Poland, no. 1543/06, ECHR 2007 [66]-[68] 

^[xviii] Joint Committee of Human Rights. (2021b). The Government response to covid-19: freedom of assembly and the right to protest, Thirteenth Report of Session 2019-21 Report, together with formal minutes relating to the report by authority of the House of Commons and the House of Lords. [online] Available at: https://committees.parliament.uk/publications/5153/documents/50935/default/

^[xix] Public Order Act 1986, s14ZA

Photo credit: Michael Mandiberg from Creative Commons

DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.

Exploring the Impact of the UK Online Safety Bill on Privacy

Ho Vun Hui explores how the UK Online Safety Bill, in its attempt to regulate the digital space, could impact user privacy, especially considering its implications on end-to-end encryption.

The UK Online Safety Bill (the “Bill”) is an ambitious legislation intending to regulate the digital space by holding tech companies accountable for the harmful content shared on their platforms. Youtube, WhatsApp, Tiktok, Instagram, and Facebook would all be impacted. Amid the variety of provisions, a significant concern arises about its impact on user privacy, especially considering its implications on end-to-end encryption. This article examines the impact of the Bill on privacy, focusing on how it might affect end-to-end encryption and the broader implications for digital communication.

The Bill and End-to-End Encryption

End-to-end encryption ensures that only the sender and recipient can access the content of a communication, preserving the confidentiality of digital interactions. This has become a cornerstone of secure digital communication and has been instrumental in protecting user privacy, business secrets, and even national security.

However, the Bill could have far-reaching implications for end-to-end encryption. In its current form, it allows an unelected official, under Ofcom’s purview, to potentially compel tech companies to bypass this encryption, providing a backdoor to private communications of users of tech companies’ platforms. This effectively nullifies the purpose of end-to-end encryption, turning a secure communication channel into a potential surveillance tool.

Implications for Privacy

The provision of the Bill that grants power to Ofcom to compel the proactive scanning of private messages compromises privacy at a fundamental level. Research shows it would be possible for governments to use a tool called ‘client-side scanning’ to search people’s private messages, for example performing facial recognition, without their knowledge.^[1] By creating a backdoor into private communications, the Bill opens the door to routine and indiscriminate surveillance, affecting not just ordinary citizens but also businesses that rely on encrypted communications to protect their trade secrets, or journalists and activists who depend on encryption to shield their work from prying eyes. In an open letter, social media platforms, including WhatsApp and Signal, have protested against the Bill, which they emphasised could undermine the UK’s privacy and safety.^[2]

This potential surveillance does not just infringe on privacy but could also have a chilling effect on freedom of expression. It was argued that freedom of expression is a fundamental human rights and that legislation requiring online platforms to censor legal speech fails to comply with international freedom of expression standards.^[3] Further, if individuals fear their private communications may be surveilled, they may be less likely to express dissenting opinions or discuss sensitive topics. This undermines the democratic values of a free society.

The Bill will impact privacy globally: the interconnected nature of the digital world means any breach of end-to-end encryption would affect users worldwide. Given the global nature of tech giants such as Facebook, Google and Apple, the Bill may expose users worldwide to increased surveillance and potential data breaches, regardless of their location or nationality.

Arguments For the Bill

Research conducted by Ofcom shows that 97% of children aged 3-17 in 2022 access to the internet.^[4] Therefore, advocates for the Bill argued that its emphasis on safeguarding children online is both urgent and necessary. Contrary to claims that the Bill will undermine privacy, advancement in technology and encryption can strike a balance between privacy and online safety. The advancement of technology and increase in online crime including cybersecurity attacks, trolling and abuse on social media and the risks to vulnerable groups including children have rightly worried many people and organisations who want to see greater regulation of this space.^[5]

It was argued that experts have demonstrated that detecting and disrupting child sexual abuse in end-to-end encrypted environments is achievable without necessarily compromising privacy rights. The Bill is seen as a significant step towards compelling tech companies to prioritise child safety and innovate solutions that preserve the right of private communications. The Bill’s proponents believe that it creates an environment conducive to achieving a balanced settlement between these two important subjects.

Criticisms of the Bill

Proponents of the Bill assert that surveillance is possible without undermining end-to-end encryption. However, this contradicts the very purpose of encryption, which is to provide a secure, private channel for communication. By introducing a backdoor, the security provided by encryption is fundamentally compromised.

Moreover, the UK government claims that its intention is not for the Bill to be interpreted as a threat to privacy falls short when juxtaposed with the Bill’s wordings. Regardless of the government’s stated intentions, the absence of explicit protection for encryption in the Bill presents a tangible threat to privacy.

Conclusion

The Bill, while intending to provide robust protection from online harms, poses a significant threat to privacy due to its potential impact on end-to-end encryption. If passed in its current form, it risks enabling routine surveillance, jeopardising free expression, and undermining global digital privacy and security. As the Bill continues to be debated, it is crucial that these privacy concerns are addressed to ensure that the legislation does not compromise the fundamental right to privacy under the guise of online safety.

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References

[1] Laura Gallagher and Caroline Brogan, ‘Tech mandated via Online Safety Bill ‘could turn phones into surveillance tools’’ (Imperial College London, 19 May 2023), <https://www.imperial.ac.uk/news/244952/tech-mandated-online-safety-bill-could/> accessed 7 June 2023

[2] Alex Hern, ‘WhatsApp and Signal unite against online safety bill amid privacy concerns’ (the guardian, 18 April 2023), < https://www.theguardian.com/technology/2023/apr/18/whatsapp-signal-unite-against-online-safety-bill-privacy-messaging-apps-safety-security-uk> accessed 5 June 2023

[3] Digital, ‘UK: Online Safety Bill is a serious threat to human rights online’ (Article 19, 25 April 2022),  <https://www.article19.org/resources/uk-online-safety-bill-serious-threat-to-human-rights-online/> accessed 7 June 2023

[4] Ofcom, ‘Children and Parents: Media Use and Attitudes’ (2023) < https://www.ofcom.org.uk/__data/assets/pdf_file/0027/255852/childrens-media-use-and-attitudes-report-2023.pdf> accessed 6 June 2023

[5] Andrew Parsons, ‘Online Safety Bill UK: WhatApp, encryption, and the implications for privacy’ (Womble Bond Dickinson, 18 April 2023) < https://www.womblebonddickinson.com/uk/insights/articles-and-briefings/reconnect-online-safety-bill-uk-whatsapp-encryption-and-implications-privacy> accessed 7 June 2023

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Photo credit: “VPN & Internet Security on Your Computer for Online Privacy” by mikemacmarketing is licensed under CC BY 2.0.

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‘DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’

Religion, Women, and Autocracy: Why Iran’s Fight for Religious Freedom and Women’s Rights is so Important Today

Pauline Moorkens discusses the women-led revolution in Iran, how the fight for religious freedom is linked to one for gender equality, and the importance of media coverage.

“Jin, jiyan, azadi”^[1]

Following the murder of 22-year-old Mahsa Amini on 16th September 2022, thousands of people have taken to the streets of Iran to express their outrage and demand political reform and criminal justice. Today, 6 months have passed, and more than 522 protestors have been killed.^[2] The women-led revolution in Iran can be seen as a fight for religious freedom since it challenges the Islamic Republic’s strict interpretation of Islam and its imposition of religious laws on society, particularly on women. Since the Islamic Revolution in 1979, Iran has been governed by a theocratic regime that enforces strict Islamic laws and customs.^[3] These laws include mandatory hijab, i.e., veiling, for women in public, strict rules on gender segregation, and limited access to education, employment, and political representation for women. Since Amini was murdered by the morality police for incorrectly wearing her veil, Iranian men and women have been at the forefront of a movement calling for greater freedom and equality. Women have organised protests, removed their hijabs in public, and campaigned for changes in laws that discriminate against women. However, 6 months later, calls for gender equality reached a tipping point with protesters all over Iran being sentenced to death. The country’s strict interpretation of Islam has sparked a movement to promote a more inclusive and tolerant understanding of the religion in the country and is decisive in more ways than one.^[4]

For many women in Iran, the fight for religious freedom is also a fight for gender equality and human rights. They argue that the strict interpretation of Islam that the government enforces is discriminatory and violates their rights to freedom of expression, association, and religion. These rights, recognised by many intergovernmental organisations, merely act as an invitation as soft law instruments are not incorporated in every sovereign state. Therefore, the women-led revolution in Iran is not just a struggle for political or social rights, but also for legal protection and a constitutional shift. The importance of media in this issue cannot be undermined. Indeed, the media and more precisely the internet “encourages pluralism and provides opportunities for realizing freedom of expression” and is instrumental at a global level for a country where free press is not allowed.^[5] The women-led revolution in Iran is a critically important social and political movement that exigencies extensive featuring throughout worldwide media for a number of reasons:

1. Representation: Women in Iran are fighting for their rights and freedoms in a country that has long been known for its oppressive policies towards women. By featuring their struggle in the news, the world can witness their bravery and resilience in the face of adversity.
2. Awareness: News coverage can bring greater awareness to the challenges and obstacles facing women in Iran. This can help to build empathy and understanding of the issues they are facing and can encourage more people to support their cause.
3. Global impact: The women-led revolution in Iran has the potential to impact not just Iran, but the region and the world at large. By featuring this movement in the news, we can highlight the global significance of their struggle and encourage international support.
4. Accountability: News coverage can hold governments and organizations accountable for their actions, or lack thereof. By featuring the women-led revolution.

One example of why the women-led revolution in Iran needs to be featured more in the news is the case of Nasrin Sotoudeh. Nasrin Sotoudeh is a prominent human rights lawyer and women’s rights activist who has been imprisoned by the Iranian government for her advocacy work. She has been sentenced to 38 years in prison and 148 lashes for her activism, including defending women who have removed their mandatory hijabs in public. Nasrin Sotoudeh’s case has received international attention and condemnation, but it is just one of many examples of the Iranian government’s crackdown on women’s rights activists. Many women have been arrested, tortured, and imprisoned for their activism, and their cases often go unnoticed by the international community. By featuring these cases more prominently in the news, the world can become more aware of the Iranian government’s human rights abuses and the women who are risking their lives to fight for their rights. This increased awareness can lead to more international pressure on the Iranian government to release political prisoners, respect human rights, and create a more equal and just society. Additionally, greater media coverage of the women-led revolution in Iran can inspire and empower women in other parts of the world who are fighting for their rights and freedoms. The struggle of Iranian women is not just a local issue, but one that resonates with women in many other countries where gender inequality and discrimination persist. By featuring their stories, the news can help to build solidarity among women and create a global movement for gender equality and human rights.

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Footnotes

[1] Bayram, S., Mohtasham, D., Iran’s protesters find inspiration in a Kurdish revolutionary slogan, 2022.

[2] AFP, At Least 522 Have Died in Iran Protests, Human Rights Report Says, Radio Free Europe/Radio Liberty, 2023. https://www.rferl.org/a/iran-protests-death-count-human-rights-report/32224340.html#:~:text=At%20least%20522%20people%20have,security%20forces%2C%20the%20agency%20reported. Accessed February 15, 2023.

[3] Sadjadpour, K., Reading Khamenei: The World View of Iran’s Most Powerful Leader, 2019. Accessed February 15, 2003.

[4] Aarabi, K., Shelley, J., Protests and Polling Insights From the Streets of Iran: How Removal of the Hijab Became a Symbol of Regime Change, 2022.

[5] Bychawska-Siniarska, D., Protecting the Right to Freedom of Expression Under the European Convention on Human Rights, 2017.

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Photo credit: Yasin AKGUL via AFP.

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DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’

Online Harassment in the Digital Age: A Conundrum For Women

Duaa Aijaz reflects upon how the online harassment of women has become synonymous with the Digital age, and what can be done to combat this.

In an era of globalization, the internet and digital media offer great potential as spaces for positive engagement and activism. However, as violence against women, persists as a global issue,  the advent of emerging social media platforms is somewhat of a new frontier of abuse towards women with cyber bullying and online harassment becoming increasingly prevalent. to a survey undertaken by Amnesty International, 41% of women who experienced online harassment felt that their physical safety was threatened.^[1],  It is also true that the majority of cases remain unreported so the figure in reality, is likely much higher. 

Online harassment includes online stalking, bullying, making sexist remarks, blackmailing, doxing, identity theft, rape, sexual assault, and murder threats. As a result, not only are victim’s emotional well-being compromised, it often leads to victims self-esteem being impacted. The reality is that this harassment is rooted in societies existing gender inequality. This is exemplified by  a recent UN report, which states that 73% of women worldwide experience cyber violence and that women are  27 times more vulnerable than to this than men.^[2] Hence, it is clear that we are in need of a global wakeup call to address the issue of cyber violence against women

Legal Framework Governing Online Harassment 

Generally, what is deemed illegal offline is also illegal online^[3].A set of broad guidelines has been published by the Crown Prosecution services regarding prosecution in cases where social media is involved ^[4]. Another legal instrument, the Budapest convention, is one of the most important legal instruments in combatting cybercrime. ^[5]Countries that have ratified it ensure that their laws are harmonized leading to increased cooperation among other states. In the UK, specifically, The Protection from Harassment Act (1997) and the Protection of Freedoms Act (2012) can be used to prosecute the wrongdoers. However, it is important to note how Protection from Harassment Act (1997)fails to define cyber-harassment resulting in vagueness.^[6] Therefore, the Protection of Freedoms Act (2012) can be used to ascertain behaviors equating to cyber-harassment. While these acts do protect the victim against perpetrators in the UK, they fail to provide protection against those who reside outside the UK.^[7] Despite the existence of certain loopholes, the law has been quite effective in dealing with those who cause harm to women in this way. For example, in April 2015 the sharing of private sexual photographs and videos without the subject’s consent was made a criminal offense, this lead to over 200 individuals being held accountable for this form of online abuse.^[8]More recently the UK government in April 2019 published its Online Harms White Paper (OHWP) concerning the online safety of UK citizens. ^[9]A statutory duty of care is imposed in its 2020 proposals intended to place greater responsibility on companies to ensure the safety of the users. Hence it is a positive step in guarding the safety of women while interacting online. 

The Grim Reality 

Whilst the government has tried to create prevention-based mechanisms, a number of high-profile incidents demonstrate how women continue to suffer from online abuse in the United Kingdom. For instance, female politicians are subject to a huge amount of abuse online. In 2017, British MP Diane Abbott received a number of death threats in the run up to the election. In fact, a study which tracked abuse of female MPs on twitter found that around 45.14% of these abusive tweets were aimed at her.^[10]Such forms of online harassment have a serious effect on the lives of women and have been known to impact their family ties, dignity and reputation. Dianne has displayed great resilience in dealing with such online abuse and said she coped with it by “putting one foot in front of the other”. ^[11]As a result, she urged the social media companies to hold such perpetrators accountable by keeping track of account holder details in order to prevent abuse from anonymous individuals. ^[12]Online abuse is unquestionably a gross violation of human rights too.^[13]

In order to empower women, the #METOO movement led by Tarana Burke emerged on social media, to spread awareness about the harm and violence that women experience around the globe. It was a way of elevating women’s unheard voices. They needed a platform to come forward with their side of the story and fight against injustice. However, that too received backlash and a spike in online harassment of women, leading to greater uncertainty.^[14]

Challenges for Social Media Companies

The dynamic nature of online activity makes it more difficult to deal with. One may question that social media companies often come under pressure for promoting misleading content however fail to take action when dealing with misogynistic content on platforms like Instagram and Facebook. However, a step in the right direction was taken by Facebook when it announced that “protecting” its community is “more important than maximizing profits”.^[15]New measures have been introduced by social media giants to counter online abuse, especially targeting celebrities, journalists, and politicians. As an example, Twitter introduced features to hide offensive content recently and  Instagram enables users to restrict their visibility along with a warning when harmful content is uploaded.^[16]

However, digital media platforms have further work to do, they need to acknowledge how their spaces are being used as a tool of  abuse. They need to accept greater responsibility for the content that is shared and that breaches individual privacy. A balance must be struck between the need for freedom of expression and harmful content being addressed immediately to prevent online harm from escalating into real-life harm. Such issues can only be addressed with appropriate qualitative and quantitative research that takes into account the victims narrative.^[17]

Conclusion

The issue of online violence against women is undoubtedly a complex issue and while there is no silver bullet for resolving this, a multifaceted response is needed in order to bring about real change. In light of the pertinent issues discussed above, The United Nation’s 2030 Agenda on Sustainable Development takes into account the use of technology to tackle violence against women. This is addressed specifically through Goal 5 on gender equality and goal 16 on peaceful and inclusive societies.^[18]

The internet, if used in the right manner, can undoubtedly play a significantly positive role in achieving gender equality and combating cyber violence, as has been highlighted through global development agendas over the years, for example the Orange Day initiative.^[19].Therefore, the international community needs to address this issue by taking measures to reduce the power of ‘internet giants’ through greater regulations. In order to achieve workable solutions to address online abuse, individuals in the power of position must accept their responsibility and play their part in ensuring the safety of women. 

Enacting women-friendly laws is not a difficult task but establishing a women-friendly online environment in a patriarchal society is a tough call. Hence the idea of an inclusive space whereby women can interact safely without being harassed will remain a pipedream if those responsible aren’t held accountable for their actions. 

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^[1] Amnesty International survey on women’s experiences of abuse and harassment on social media (2017) Accessed 4 July 2022

^[2] United Nations (UN) report “Cyber Violence Against Women and Girls: A Worldwide Wake-Up Call” Accessed 4 July 2022

^[3] HC Deb 29 October 2013 c236-7WA; Culture Media and Sport Committee, Online Safety: Responses to Committee’s Sixth Report of Session 2013-14, 3 July 2014, HC 517 2014-15, page 11; PQ 224106 and PQ 224105, both answered 23 February 2015 Accessed 4 July 2022

^[4] https://www.cps.gov.uk/legal-guidance/social-media-guidelines-prosecuting-cases-involving-communications-sent-social-media Accessed 4 July 2022

^[5] Council of Europe Convention on Cybercrime Accessed 1 July 2022

^[6] Bocij, Griffiths & McFarlane, 2002 Accessed 6 July 2022

^[7] Salter & Bryden, 2009 Accessed 5 July 2022

^[8] Crown Prosecution Service (2016) Violence against women and girls: Crime report 2015-16, p. 11. Available at: http://www.cps.gov.uk/publications/docs/cps_vawg_re- port_2016.pdf. Accessed 6 July 2022

^[9] Department for Digital, Culture, Media and Sport, and the Home Office, ‘Online Harms White Paper’ (2019) CP 57 Accessed 4 July 2022

^[10] Azmina, Unsocial Media: Tracking Twitter Abuse against Women MPs, Sept 2017,Medium.com Accessed 4 July 2022

^[11] : Simon Murphy, ‘Diane Abbott Speaks Out On Online Abuse As Female Mps Step Down’ (the Guardian, 2022) <https://www.theguardian.com/politics/2019/oct/31/diane-abbott-speaks-out-on-online-abuse-as-female-mps-step-down&gt; accessed 17 July 2022.

^[12] Ibid

^[13] Article 5, Human Rights Act 1998 Accessed 4 July 2022

^[14] https://www.vox.com/2019/8/27/20833421/me-too-sexual-misconduct-al-franken-kaiman Accessed 5 July 2022

^[15] https://economictimes.indiatimes.com/tech/technology/us-senator-calls-for-probe-into-facebook-whistleblowers-allegations/articleshow/86785878.cms?from=mdr Accessed 4 July 2022

^[16] https://link.springer.com/article/10.1007/s10676-019-09516-z Accessed 4 July 2022

^[17] European institute for Gender Equality Accessed 4 July 2022

^[18] https://sdgs.un.org/goals Accessed 4 July 2022

^[19] https://www.un.org/en/observances/ending-violence-against-women-day Accessed 4 July 2022

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Photo Credit:”Conférence : ‘Standing up against online harassement of women journalist’” by UNESCO Headquarters Paris is licensed under CC BY-NC-ND 2.0.ND 2.0.

‘DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’ 

The arrest of a journalist for Covid-19 reporting in Bangladesh highlights the issue of press freedom in the country

Zafirah Rahman reports on the recent crackdown on freedom of expression in Bangladesh.

The recent arrest of a reporter in Bangladesh, which triggered nationwide protests and international condemnation, sheds light onto the wider issue of press freedom in the country. During the Covid-19 pandemic, the continuing government crackdown on media saw a surge in arbitrary arrests, harassment and intimidation. The suppression of the right to freedom of expression of journalists who have reported on the pandemic infringes Article 19 of the International Covenant on Civil and Political Rights, to which Bangladesh is subjected.

Journalist Rozina Islam arrested and charged over alleged document theft

Rozina Islam, a Bangladeshi investigative reporter, was arrested on May 17, 2021 under sections 3 and 5 of the Official Secrets Act 9 (OSA) and sections 379 and 411 of the Penal Code, for allegedly attempting to “collect sensitive government documents and taking photos of them” at the Health Ministry.¹ This carries a sentence of up to 14 years in prison and the possibility of the death penalty. Islam had visited the Health Ministry in Dhaka to meet the Health Services Division Secretary and perform her duties as a diligent reporter but after a few hours, news broke out that Rozina had been detained in the Health Ministry without an official arrest warrant issued by the authorities. Islam denied all allegations against her and claimed that she went in to meet the Health Services Division secretary at around 3.30 pm, after which she was put in confinement for five hours. During this time, it has been reported that she was denied access to a doctor, even though she felt unwell and fainted. Later, Islam was handed over to the police.²

Brad Adams, executive director of Human Rights Watch’s Asia Division, stated that “Bangladesh authorities should produce evidence of wrongdoing or immediately release Rozina Islam and stop arresting journalists for doing their job, which is also to highlight governance flaws… Instead of locking up critics, encouraging a free press should be central to the government’s strategy to strengthen health services in combatting the pandemic.”³ Islam has reported on cases of government corruption, such as the country’s response to the coronavirus pandemic, which includes reports on the alleged mismanagement and bribery in recruitment at the health board, irregularities in the purchasing of emergency medical supplies to respond to the pandemic, and the holding of donated emergency medical supplies at the airport for ten months.⁴

The legal issue with the detention and subsequent arrest of Islam is that she had organised the meeting with the Health Services Division Secretary and was carrying out a standard journalistic practice when she was at the Health Ministry, one which was facilitated and known about by the government, and so, the fact that her actions were criminalised appears to be highly arbitrary. Islam’s detention sends a chilling message to reporters uncovering corruption in Bangladesh and sparked days of nationwide protests demanding her release.⁵ By speaking out about Islam, thousands of journalists, as well as political and civil rights activists, stood with journalists across the country to highlight the wider issue of press freedom. Islam’s arrest comes at a time when the Bangladesh government has been accused of aggressively suppressing press freedom.⁶ Notable journalists in Dhaka as well as international human rights groups commented on Rozina’s arrest, as it appears to be a result of her honest reporting on the government’s response to the pandemic.⁷

On 23 May, Rozina Islam was granted bail under the condition that she surrenders her passport. The next hearing in her case is scheduled for 15 July, 2021.⁸

Press freedom and human rights in Bangladesh

In accordance with international Human Rights law, Bangladesh has an obligation to ensure the right to freedom of expression, as enshrined in Article 19 of the International Covenant on Civil and Political Rights (ICCPR). ⁹ Although the rights to freedom of expression and access to information may be restricted, these restrictions must be provided by law, pursue a legitimate aim, and be necessary and proportionate.¹⁰ Responding to a public health crisis is arguably a legitimate aim but that does not give the government authority to disproportionately deprive a citizen of their right to freedom of expression completely and is likely not necessary to safeguard the health of the nation. In order to maintain the freedom of the press and to hold the government accountable, the media and press in Bangladesh should be able to able to carry out their legitimate activities without any hindrance or fear of reprisals. The arbitrary detention and judicial harassment of Rozina Islam illustrates the government’s misuse of the Penal Code and the Officials Secrets Act (OSA) to restrict Islam’s right to freedom of expression.

The OSA, under which Islam was charged, is an anti-espionage law adopted under the British colonial rule that has received criticism because of its recent application against Islam, with legal experts arguing that the law cannot coexist with contemporary journalism.¹¹ Section 3 criminalises spying and Section 5 criminalises unauthorised disclosure of secret government information.¹² The  use of the OSA to legitimise the arrest of Islam highlights a concerning escalation in the crackdown on human rights defenders and freedom of expression in Bangladesh, including the continuing attacks on the media. Amnesty International reported that at least 247 journalists were subjected to attacks, harassment and intimidation by state officials and others affiliated with the government in 2020.¹³

Moreover, the introduction of the draconian Digital Security Act (DSA) 2018 was widely enforced to curtail freedom of expression. The government has continued to use the DSA 2018 to suppress the right to freedom of expression and to target and harass journalists and human rights defenders.¹⁴ The controversial provisions of the Act have received condemnation from civil society and human rights organisations, including the UN High Commissioner for Human Rights, who declared that the Act is not in accordance with international standards of human rights. Despite these criticisms, it has not been amended. This is therefore undermining Article 39 of the constitution of Bangladesh which guarantees freedom of thought and conscience and of speech, as well as Article 19 of the ICCPR.¹⁵

How press freedom has been affected by the pandemic

The coronavirus pandemic hit Bangladesh in early March 2020, and by the end of that month, dozens of people, including journalists, academics, opposition activists, a doctor, and students, had been arrested by the government for posting content on social media critical of the government.¹⁶ It was reported in May 2020 that since the start of the pandemic in Bangladesh, there had been a surge in the number of arrests, harassment and intimidation of journalists in particular, who were increasingly persecuted for reporting corruption and criticising the government’s COVID-19 policies.¹⁷  85 journalists have reportedly been charged under the notorious 2018 Digital Security Act. One of the most significant charges was of writer Mushtaq Ahmed, who died in prison after being locked up under the DSA for nine months.¹⁸ Furthermore, 11 people, including a cartoonist, two journalists and a writer, were charged under the DSA for allegedly posting about the coronavirus pandemic “to negatively affect the nation’s image and to create confusion among the public through the social media and cause the law and order situation to deteriorate”.¹⁹

Although Bangladesh’s freedom of the press has worsened dramatically over the last year, this is neither new nor unexpected. It is instead a continuation of the ongoing deterioration of human rights in the country including the right to freedom of the press and freedom of expression in past years. It has been argued that the current regime is growing closer to an authoritarian rule through state repression and removal of the opposition from the public sphere, particularly since the election of 2014, which was impacted by a low turnout, widespread violence and boycotted by the opposition.²⁰ This is illustrated in the press freedom rankings, in which Bangladesh has seen a rapid decline in for the past six years, maintaining its status as the worst performer in South Asia since 2017.²¹ This is because the use of arbitrary measures to intimidate and harass journalists and media has created a culture of fear.

Alongside the obvious risk to life of inaccurate reporting of the pandemic, there have been concerns due to the government’s lack of transparency, poor state of public health facilities, and lack of preparedness. However, there is a larger political issue here for Bangladesh. Bangladesh is often referred to as a ‘paradox’ as on the one hand, the country’s economy has seen a stellar record of development as one of the fastest growing economies of Asia, whereas on the other hand, there is a weakness of governance in the social and political sphere.²² The assaults on media during the pandemic draws attention to the government’s claim of successful development and economic growth, perhaps exposing the hollowness of the development strategy being pursued. The ruling Awami League (AL) party has restricted freedom and democratic space, winning a third consecutive term in a 2018 election that was marred by violence and claims of vote rigging. It can be argued that the ongoing human rights violations have been overshadowed by the narrative of booming economic growth in the country in an attempt to keep international communities satisfied.²³ The government continues to undermine the human rights of its citizens, including the right to freedom of expression, in order to limit the damage.

Conclusion

The actions taken by the government to manage the coronavirus pandemic calls into question the extent to which citizens in Bangladesh have the ability to express their opinions without being imprisoned or attacked. In order to bring back faith in the country that freedom of expression will not be targeted, the authorities must take effective action to stop the escalating attacks on the press and media and prevent any further harassment, as well as seek accountability for any past conduct of that nature. The government should conduct a full, independent review of the Official Secrets Act 2018 and Digital Security Act 2018 and bring them in line with the International Convention on Civil and Political Rights, ensuring that laws are sufficiently precise so as not to arbitrarily target the press so that they can carry out their peaceful and legitimate activities through the exercise of the right to freedom of expression. In addition, all those arbitrarily arrested and detained should be released.  

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[1] Dhaka Tribune. 2021. Investigative Journalist Rozina Islam Lands In Jail. Available at: <https://www.dhakatribune.com/bangladesh/court/2021/05/18/prothom-alo-journo-rozina-islam-sent-to-jail-in-official-secrets-act-case&gt; [Accessed 13 June 2021.

[2] International Federation for Human Rights. 2021. Bangladesh: Release on bail of journalist Rozina Islam. Available at: <https://www.fidh.org/en/issues/human-rights-defenders/bangladesh-release-on-bail-of-journalist-rozina-islam&gt; [Accessed 13 June 2021].

[3] Human Rights Watch. 2021. Bangladesh: Arrest of Journalist Investigating Corruption. Available at: <https://www.hrw.org/news/2021/05/20/bangladesh-arrest-journalist-investigating-corruption&gt; [Accessed 13 June 2021].

[4] Rozina Islam, 2021. Discrepancies of Tk 3.5b in emergency procurement. Prothomalo. Available at: <https://en.prothomalo.com/bangladesh/discrepancies-of-tk-35b-in-emergency-procurement&gt; [Accessed 19 June 2021].

Rozina Islam, 2021. There are life-saving materials. Prothomalo. Available at: <https://www.prothomalo.com/bangladesh/coronavirus/%E0%A6%AA%E0%A7%9C%E0%A7%87-%E0%A6%86%E0%A6%9B%E0%A7%87-%E0%A6%9C%E0%A7%80%E0%A6%AC%E0%A6%A8-%E0%A6%B0%E0%A6%95%E0%A7%8D%E0%A6%B7%E0%A6%BE%E0%A6%95%E0%A6%BE%E0%A6%B0%E0%A7%80-%E0%A6%B8%E0%A6%BE%E0%A6%AE%E0%A6%97%E0%A7%8D%E0%A6%B0%E0%A7%80&gt; [Accessed 19 June 2021].

[5] Dhaka Tribune. 2021. Journalists across Bangladesh demand Rozina’s release. Available at: <https://www.dhakatribune.com/bangladesh/nation/2021/05/18/journalists-across-districts-demand-rozina-s-release&gt; [Accessed 19 June 2021].

[6] Human Rights Watch. 2021. Bangladesh: Arrest of Journalist Investigating Corruption

[7] Front Line Defenders. 2021. Rozina Islam Released From Jail. Available at: <https://www.frontlinedefenders.org/en/case/rozina-islam-released-jail&gt; [Accessed 19 June 2021].

[8] International Federation for Human Rights. 2021. Bangladesh: Release on bail of journalist Rozina Islam.

[9] United Nations General Assembly, International Covenant on Civil and Political Rights, Article 19

[10] Media Freedom Resource Centre OBCT. 2021. General Comment No. 34 On Article 19 ICCPR. Available at: <https://www.rcmediafreedom.eu/Tools/Legal-Resources/Legal-docs/General-comment-No.-34-on-Article-19-ICCPR&gt; [Accessed 19 June 2021].

[11] Dhaka Tribune. 2021. ‘Official Secrets Act does not provide for punishment of journalists’. Available at: <https://www.dhakatribune.com/bangladesh/law-rights/2021/05/19/official-secrets-act-does-not-provide-for-punishment-of-journalists&gt; [Accessed 19 June 2021].

[12] Official Secrets Act 1989

[13] Amnesty International, 2021. Amnesty International Report 2020/21. London, pp.70-82. Available at: <https://www.amnesty.org/download/Documents/POL1032022021ENGLISH.PDF&gt; [Accessed 13 June 2021].

[14] Front Line Defenders. 2021. Two years since coming into force, Bangladesh’s Digital Security Act continues to target human rights defenders and suppress free speech. Available at: <https://www.frontlinedefenders.org/en/statement-report/two-years-coming-force-bangladeshs-digital-security-act-continues-target-human&gt; [Accessed 19 June 2021].

[15] Bangladesh, The Constitution of the People’s Republic of Bangladesh 1972, Article 39

[16] Human Rights Watch. 2021. World Report 2021: Rights Trends in Bangladesh. Available at: <https://www.hrw.org/world-report/2021/country-chapters/bangladesh&gt; [Accessed 19 June 2021].

[17] Article 19. 2021. Bangladesh: Alarming crackdown on freedom of expression during coronavirus pandemic – ARTICLE 19. Available at: <https://www.article19.org/resources/bangladesh-alarming-crackdown-on-freedom-of-expression-during-coronavirus-pandemic/&gt; [Accessed 13 June 2021].

[18] The Diplomat. 2021. Bangladesh Journalist’s Arrest Highlights Growing Curbs on Press Freedom. Available at: <https://thediplomat.com/2021/05/bangladesh-journalists-arrest-highlights-growing-curbs-on-press-freedom/&gt; [Accessed 13 June 2021].

[19] Article 19. Bangladesh: Alarming crackdown on freedom of expression during coronavirus pandemic.

[20] The University of Manchester. 2021. Bangladesh is booming, but authoritarianism could burst its bubble. Available at: <https://www.manchester.ac.uk/discover/news/bangladesh-is-booming/&gt; [Accessed 20 June 2021].

[21] The Business Standard. 2021. Bangladesh still has lowest press freedom in South Asia. Available at: <https://www.tbsnews.net/bangladesh/bangladesh-still-has-lowest-press-freedom-south-asia-72217&gt; [Accessed 19 June 2021].

[22] The Sunday Guardian Live. 2021. Development paradox: Bangladesh witnesses economic growth, but lacks in governance – The Sunday Guardian Live. Available at: <https://www.sundayguardianlive.com/news/development-paradox-bangladesh-witnesses-economic-growth-lacks-governance&gt; [Accessed 20 June 2021].

[23] Dhaka Tribune. 2021. OP-ED: Development need not come at the price of human rights. [online] Available at: <https://www.dhakatribune.com/opinion/op-ed/2021/03/21/op-ed-development-need-not-come-at-the-price-of-human-rights&gt; [Accessed 20 June 2021].

Image credit: © Adam Jones, Flickr

Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.

“The Lockdown Regulations” and the right to protest

Paige Jones revisits the original 2020 lockdown regulations and the impact on the right to protest under Article 11 of the European Convention on Human Rights.

The original lockdown regulations, the Health Protection (Coronavirus Restrictions) (England) Regulations (SI 2020/350) (“the Regulations”), are a thing of the past but when they were introduced on 26 March 2020, they had a profound impact on how we went about our daily lives. More than a year on, it is still worth considering how these Regulations impacted our human rights, specifically our right to protest under Article 11 of the European Convention on Human Rights (“ECHR”).

The Regulations were secondary legislation created pursuant to the powers under section 45C of the Public Health (Control of Disease) Act 1984, as amended by Health and Social Care Act 2008, and contained a number of provisions. Of these, it can be said that the most severe restrictions were:

• Section 6(1): “During the emergency period, no person may leave the place where they are living without reasonable excuse”;
• Section 7: “During the emergency period, no person may participate in a gathering in a public place of more than two people” save for circumstances set out in section 7 (a)-(d); and
• Section 9(1): “A person who (a) without reasonable excuse contravenes a requirement in regulation 4, 5, 7 or 8, or (b) contravenes a requirement in regulation 6, commits an offence.”

On 29 and 30 October 2020, the case of R (Dolan and others) v SSHSC and Another^[1] challenged the government on the legality of these lockdown restrictions. The original challenge was based on three grounds:

• That the government had no power under the 1984 Act to make the regulations (the ‘vires’ argument);
• That the Regulations are unlawful according to ordinary rules and principles of public law; and
• The Regulations were incompatible with Convention rights and were therefore contrary to section 6(1) of the Human Rights Act 1998.

The Court of Appeal only allowed the appeal on the first ground, concluding that the government did have the relevant powers under the 1984 Act to make the Regulations (para 78). However, for the purposes of this article it is the third ground for appeal that will be explored.

Counsel for the appellants in Dolan submitted that the Regulations were incompatible with the following ECHR rights:

• Article 5 – Right to Liberty
• Article 8 – Right to Respect for Private and Family Life
• Article 9 – Right to Freedom of Thought, Conscience and Religion
• Article 11 – Right to Peaceful Assembly and Association
• Article 1 Protocol 1 – Right to Peaceful Enjoyment of Posessions
• Article 2 Protocol 1 – Right to Education 

In the judgment, handed down on 1 December 2020, their Lordships held that the points put forward as to Articles 5, 11, Article 1 Protocol 1 and Article 2 Protocol 1 were all unarguable. As to Article 8, the court held that the restrictions were an interference with the right but that such was lawful and proportionate in light of the pandemic and the need to protect public health. Finally, the court refused to make a determination on Article 9 as a different case was due to be heard challenging the Regulations on this ground (R (Hussain) v Secretary of State for Health and Social Care).^[2]

The Right to Protest

In the concluding remarks to this judgment, both the second and third grounds for appeal were held to be “academic, because the regulations under challenge have been repealed, and, in any event, they are not properly arguable” (para 115). To that end, this article seeks to briefly explore a hypothetical alternative judgement, looking at if and how the Regulations impacted on the right to protest.

Article 11 of the ECHR states:

Everyone has the right to freedom of peaceful assembly and to freedom of association with others…

No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. …

Also known as the right to protest, the absence of exercisable Article 11 rights was described eloquently by Kirsty Brimelow QC as “anathema to both democracy and freedom.”^[3] Article 11 is a qualified right, meaning that there are some situations in which the right can be restricted but, in such circumstances, those restrictions must be lawful and proportionate.

Prescribed by Law

As set out within Article 11 itself, in order for a restriction on the right to protest to be lawful, it must first be ‘prescribed by law.’ In the case of Kudrevičius and Others v. Lithuania [GC],^[4] the ECtHR held that this not only requires a legal basis in domestic law, but the quality of the law is also important as it must be sufficiently precise so as to be accessible and foreseeable in its effects (paras 108-109)

A similar point was established by Lord Hoffmann in R v Secretary of State for the Home Department, ex p. Simms, that: “fundamental rights cannot be overridden by general or ambiguous words…”^[5]

When we look at the Regulations, neither section 6 nor 7 made any direct reference to protests. With the above in mind, it could be argued that the Regulations fell short of the requirements of clarity and precision required by previous domestic and European case law and therefore, may not have been ‘prescribed by law’ for the purposes of a lawful exception to Article 11.

Proportionality

The second element of a lawful interference with the right to protest under Article 11, requires that such an infringement must be proportionate and necessary in a democratic society.

The case of Christian Democratic People’s Party v. Moldova^[6] held, at para 77, that any ban on protest, even temporarily, can have a “chilling effect” on the exercise of that right. It stands to reason then, that this effect ought to have been considered by the Court when assessing whether the Regulations were a proportionate interference with the right to protest.

For their part, the Court of Appeal in Dolan, at para 103 of their judgment, held that there was an “in-built” exception to the Regulations which provided that a person would not be in breach if they had a “reasonable excuse.” This “reasonable excuse” exception, it was suggested, was flexible enough to facilitate the right to protest in a way that could be fairly balanced between the legitimate aim of protecting public health and the right to protest. This would allow the Regulations to be applied to fact specific cases rather than being a disproportionate blanket prohibition on the right to protest.

The effect of the Regulations are best understood in their context. There is scope to argue that, when coupled by police enforcement of the Regulations and the threat of committing a criminal offence under section 9, the Regulations placed protesters in a de facto situation of increased vulnerability which could have a chilling effect on the right to protest such to be disproportionate.

This aspect of proportionality is key in assessing whether the Regulations were a lawful interference or not. More recently in the case of Leigh & Ors v The Commissioner of the Police of the Metropolis^[7] which, although dealing with a newer version of the  regulations, accepted that the reasoning on Article 11 in Dolan equally applied to this case (para 13). The Court considered that a blanket ban on protests would be unlawful (para 24). This point can safely be said to apply to the March 2020 Regulations as well as the new amended versions of recent months.

What Dolan and Leigh show us is that the importance of proportionality cannot be understated.  In the context of Article 11, people who often exercise their democratic right to protest are those who are speaking out against injustice they have personally faced, as seen through the Black Lives Matter protests following the death of George Floyd and the Sarah Everard Vigil. It could be argued therefore, that if, as alleged at para 9 of Leigh, that the police had been implementing a blanket ban on protests since the March 2020 Regulations (which was denied by counsel for the police (para 24)) then this certainly would have been a disproportionate and unlawful interference with the right. Beyond the judgment of the Courts in these cases, it may still be said that those most impacted by the Regulations and its effects on Article 11 are those who already face marginalisation.

No matter the view you take of the Regulations, it seems clear that they did infringe upon the right to protest. The heart of the debate was whether such interference was lawful and proportionate. Some would say they were both necessary and proportionate given the severity of the pandemic and the need to protect lives, where others would passionately disagree. The above discussion simply touches upon issues that could, and perhaps should, have been addressed in determining the interplay between the Regulations and Article 11. Protests, time and again, have brought positive social change and are fundamental to democracy even in times of crises such as this pandemic. The crucial point is ensuring that any interference with this right, if necessary, is a proportionate one.

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[1] [2020] EWCA Civ 1605.

[2] [2020] EWHC 1392 (Admin)).

[3] https://www.theguardian.com/commentisfree/2021/apr/05/government-freedom-expression-police-crime-bill-legislation-uk accessed 10 June 2021.

[4] 26 November 2013, 37553/05.

[5] [2000] 2 AC 115 [131].

[6] Judgment 14 February 2006, Case No. 28793/02.

[7] [2021] EWHC 661.

Image credit: Protest against the proposed Police Bill (Tim Dennell/CC BY-NC 2.0/Flickr)

Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.

Article 8 and the ‘reasonable expectation of privacy test’

Sachin Varma looks at the way in which the UK courts deal with Article 8, the right to privacy.

The right to privacy is formalised by Article 8 of The European Convention on Human Rights (‘ECHR’). Article 8 is frequently balanced against Article 10 (freedom of expression), especially in claims involving celebrities and the press. With the rise of technology, the expanding surveillance capabilities of the state, and social media surreptitiously tracking our every move, our rights to privacy are increasingly threatened in the digital age. This article will help demystify this complex but fascinating area of privacy law by focussing on the ‘reasonable expectation of privacy’ test, the judicial approach, and a consideration of the future direction of the law.

BPP HRU event: Human Rights Networking and Roundtable

On the 6th January, the BPP Human Rights Unit hosted the Human Rights Networking and Roundtable event. With two group discussions running in tandem, students shared their thoughts on the mass incarceration and persecution of the Uighur population in China using re-education camps and human rights in the digital world.

Jack West-Sherring reports on the event.

The BPP Human Rights Unit (HRU) launched their 2021 events calendar with a networking and roundtable event discussing two topics, the effect of the digital age on human rights and the persecution of the Uighur population in Xinjiang. Making use of two Microsoft Teams breakout rooms, this was an incredible opportunity to share thoughts and opinions on crucial human rights issues and get to know a body of likeminded students a little better.

BPP HRU event: Human Rights Networking and Roundtable

Last week, the BPP Human Rights Unit hosted the Human Rights Networking and Roundtable event. With two group discussions running in tandem, students shared their thoughts on the mass incarceration and persecution of the Uighur population in China using re-education camps and human rights in the digital world.

Safia Bolton reports on the event.

The Human Rights Unit Networking Event and Roundtable, held on the 6th of January, was a fantastic way to step into the new year. Under the current lockdown, it is rare to have the opportunity to engage in conversation with other passionate individuals about key human rights issues. The HRU event provided the perfect chance not only to talk with peers, but also to build longer-lasting relationships through the new LinkedIn group.