Wednesday, 8 April 2020

“No government can be held responsible for an act of its agents committed in violation of its authority, unless it is itself guilty of bad faith or of negligence in not suppressing the action.” Critically discuss.

The circumstances leading to a breach of international legal obligation can be best accessed by referring to the rules of customary international law. These rules have been codified in the draft Articles on the Responsibility of States for Internationally Wrongful Acts by the International Law Commission.[1] They provide good evidence as to what constitutes customary international law and are closely followed by States. 

The basic understand is that a state is internationally responsible for every wrongful act it commits which is done under its umbrella. Before holding a state responsible for a breach, it has to be ensured that the “wrongful act” committed is directly attributable to the state. Also, it has to be a breach of an international obligation of that State. As a general rule, the conduct is attributable to a State when it is committed by the State’s organs of government or its agents. By “agent”, it is meant to include persons or entities who act under the direction, instigation or control of those organs.  Again, persons or entities may be organs if they act in the manner of organs, for instance, police forces.
It is to be noted that purely personal acts of persons or entities cannot be attributed to a State[2] and where these persons act for personal motives or in bad faith, a government is not responsible for their actions under international law. An agent who, for example, has a personal grudge against a foreign national and assaults him in an altercation at a cafe may have committed a crime but his government is not in breach of its obligation to the foreign national. This however is not the rule where a person or entity is acts in his capacity as agent. Article 7[3] lays states that:
The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.”
This is a strict rule which effectively means the illegality, the excessive nature or negligence of the agent’s conduct will not negate the responsibility of the State. The justification behind the rule is that it is impossible for a State to evade international responsibility by a provision in its domestic law, which would in this case be the law that makes the agent’s act ultra vires. Hence, when an agent acts in a way which leads to a breach under international law, under ordinary circumstances his State becomes liable if the agent was acting in his official capacity[4] regardless of whether his actions were in conflict with or in excess of his instructions and regardless of whether the agent was negligent or acting in bad faith. Furthermore, a State may therefore be responsible even if it attempts to stop the agent or even if it is unaware of the agent’s actions.


[1]See, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, 2001 http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf accessed on 15.04.13
[2] Mallen, RIAA, vo. V, p.516 (1929)
[4] Petroplane Inc. v. Iran (1991) 27 Iran-US CTR 64 at 92

Tuesday, 31 March 2020

Is the Universal Declaration of Human Rights ‘too white’? The Cultural Relativism argument and its merits.

In 1948, when the 48 Member States of the then-UNGA voted to adopt the Universal Declaration of Human Rights (“UDHR[1] [2]”), little did they know that, despite living in the aftermath of the collective and horrific WWII experience, they were far from actually having human rights realized, as with time new arguments against the iconic UDHR surfaced. Out of which, the most famous is that the UDHR is ‘too white’ or does not cater to ‘non-white people’. This is known as ‘Cultural Relativism’ (“CR”).
The CR argument at the onset does not stand its ground. This is because out of those 48 adopting states[3], 32 were ‘non-white’ (if we include the South Americas) or 13 were ‘non-white’ (if we do not include them), with Afghanistan, Iran and China etc. as the adopting states as well. Even in the UDHR’s drafting, the representatives from the ‘non-white’ states such as C. Malik from Lebanon, P.C. Chang from China[4] and H. Mehta from India[5] etc. were actively involved.
So then, why is CR still argued today on grounds of culture, faith and economics? And is there any merit to such arguments? Let’s take it step-by-step.


CR and the culture:
The most hard-core proponents of this argument are the non-Indian Eastern Countries (such as Japan and Malaysia etc.). They state that the UDHR principles are structured on ‘individualism’ and do not cater to the importance of community and communal sacrifice for the greater good. That the whole eastern history is embedded with sacrifices for the greater good and too much focus on individualism, such as labor rights with proper wages and good working conditions, or even gender equality, do not serve the communal good of ‘to each their own task’. That while we all must strive for improved living standards, too much focus on individual rights may distort the greater balance which is at play.

CR and the faith:
This argument is most commonly relied upon by the Muslim-majority states (such as Saudi Arabia or UAE etc.). They say that since the UDHR is based on a purely-western experience (the WWII), it does not take into account that the divine law places certain restriction on our way of life, the classic example of which will be the ‘right to sexual freedom’ and the sinful concepts of sodomy and homosexuality that exist in religious texts, or even the ‘right to free expression’ and ‘blasphemy’.

CR and the economics:
And lastly, the African states majorly argue that the complete realization of human rights is dependent upon adequate monetary resources, such as the ‘right to education’ which, even if accepted in its entirety as based on the innate capability of humans[6], still requires schools, books, qualified teachers and much more. Same goes for the ‘right to health’, ‘food’ and ‘shelter’. They say that unless all the states in the world have the same resources, states that fall below the poverty line cannot be held accountable for the way they chose to spend their limited resources, which are either stolen by corrupt politicians/military generals or spent to maintain peace.

Universalism’s (the opposite of CR) response to economics and faith is very straight-forward:
1.    When the UDHR was realized into legally-binding instruments, the choice to make two treaties, the International Covenant on Civil and Political Rights, 1966 (“ICCPR”) and the International Covenant on Economic, Social and Cultural Rights, 1966 (“ICESCR”) was intentional and not arbitrary, so that the negative rights (those which do not require any effort on part of the states, but mere restraint) such as ‘right to life’, and ‘right against torture’ were made legally-binding but the positive rights (which do require effort and resources) such as ‘right to education’, ‘health’ and ‘food’ were made subject to ‘progressive realization’, so that no illegality is committed unless there is gross negligence[7].
2.    With regards to faith, J. Donnelly[8] adequately solves it by saying that human rights have three-tiers: the Substance (which remains the same), the Interpretation (such as the ‘right to free expression’ could be interpreted as freedom subject to religious sentiments) and the Form (the laws to regulate it). He calls it Universalism, disguised as weak CR.

As for the ‘culture’ argument, the answer revolves around the metaphor ‘what goes around, comes around’, or circular reasoning. If you had so many problems with the way the UDHR has materialized, why didn’t you say anything at the time of its drafting? And then why did you sign it? Nevertheless, all the treaty instruments have a ‘reservation’ option should a state chose to consider itself not bound by certain provisions.
From the arguments mentioned above, it seems clear that the CR argument, after all, has no merit at all.


[1] For the purpose of this article, any reference to the UDHR may be construed to be a reference to all the other similar global and regional human rights instruments, such as the ICCPR and ICESCR.
[2] GA Resolution 217 (III) A, “International Bill of Human Rights” (1948), A/RES/217(III). UNDOCS.
[3] Chapter 5 “Social, Humanitarian and Cultural Questions”, Part I, Yearbook of the United Nations 1948–1949, p. 535
[4] Drafting Committee – Members, accessed at: http://research.un.org/en/undhr/draftingcommittee
[5] D. Jain, “Women, Development and the UN” (2005), Indiana University Press, p. 20
[6] For details, read the works of A. Senn and M. Nussbaum on the ‘capabilities approach’ theory, such as A. Senn, “Development as freedom” 2001, Oxford University Press and M. Nussbaum, “Creating capabilities: the human development approach” (2013), Harvard University Press.
[7] For detailed analysis, see R. Higgins, “Problems and Process: International law and how we use it” (1995), Oxford University Press, p. 95, and its critique.
[8] J. Donnelly, “Cultural Relativism and Universal Human Rights” (1984), Human Rights Quarterly Vol. 6(4)

The writer, Sana, is a lawyer and legal academic based in Lahore, with a keen interest in Jurisprudence and Islamic Law. Previously, she has studied the University of London's International LLB Honours degree at University College Lahore, securing First Class Honours. 

Tuesday, 17 March 2020

‘Femininity’ within ‘Feminism’: the Cultural Feminist vs. the Radical Feminist debate and who wins it?

Like many other paradigm-shifting movements in the world (such as the American Civil Rights Movement and the Communist Movement), having solid foundation in the legal theory and scholarship as it may have, the Feminism Movement (‘FM’) or the Feminist Legal Theory (‘FLT’) has also been met with severe opposition, sometimes backlash and also legal consequences of the unjust laws (that Martin Luther King Jr. warned us against). 

Within these very real struggles for redefining ‘work’, ‘beauty’, ‘marriage’ and what not, there has emerged a new debate concerning ‘Cultural Feminism ‘CF’ (or ‘soft feminism’) and Radical Feminism ‘RF’ (or ‘hard feminism’). In a nutshell, CF’s would say you have to appear welcoming and ‘soft’ to really make a change, while forgetting (as RF’s would argue) that this essentially is not ‘soft feminism’ but reinforced internalized-misogyny that has adapted itself to the modern feministic attack, much like a virus that adapts to appear friendly but is highly dangerous internally.
In academic scholarship terms, let us preliminarily explore Robin West (and by default Carol Gilligan) as the CF and Catherine MacKinnon (with integrated elements from Ann Scales) as the RF:-
1.    The jurist Robin West[1], relying on the work of psychologist Carol Gilligan[2] with male and female children on the Heinz Dilemma (‘whether or not to steal an expensive drug that offers the only hope of saving a dying spouse’[3]), states that whole presupposition of western jurisprudence is misfounded, as it stands on the ‘Separation Thesis’ (as termed by Hobbes), or the ‘male standard’ i.e. human beings are threatened by association and enliven by isolation. However, for women it is the exact opposite. As they bear children and breastfeed them, they are ‘connected’ with other human beings and thrive on this connection. Unless, we take into account this specific women’s experience and equally value parental care (meaning ‘equally divide the responsibility for’), intimacy etc. we cannot expect jurisprudence to effectively accommodate women. She further supports this by examples such as the lack of conviction for a ‘non-violent rape’ (or as Susan Estrich[4] calls it the ‘real rape’) and gendered definition of work (the famous ‘what do you do all day except dolling up’), which results in economic impoverishment of women. Charlesworth, Chinkin and Wright[5] support it by absence of female specific issues (such as female gentile mutilation) in international law until recently, and Gross[6] by arguing for humanization of bankruptcy laws (focused on mediation, and not court proceedings) so that more woman, with no previous exposure to such, can effectively participate in financial matters.

2.    On the other hand, Catherine MacKinnon[7] argues that the best way to look at these historically recurrent problems is not to view women as special angelic creatures (enriched by  motherly love and self-sacrifice) but rather by focusing on the fundamental ‘Power Dichotomy’ that this ‘male standard’ creates. She says that this has parallels to ‘White supremacy’ in the Critical Race Theory, and just like there was no logically-conceivable way of justifying White Supremacy, there can be none for justifying male supremacy. Therefore, it is no longer a question of whether patriarchy is right or wrong, but how to counter it. MacKinnon says this can be done by ‘asking the women question’, Ann Scales[8] by ‘conscious-raising’ (telling the women stories and reconstructing the abstract universality) and Littleton[9] by ‘centralization of women in normative debates’.

Moving forward to the debate at hand, who among them is right? Analyzing the jurisprudence cited above in detail tells us that the MacKinnon’s argument (and by default RF’s argument) undeniably has more merit, strength of reasoning and backing of history/recurrent pattern of social vices to support it.
It becomes pertinent to mention at this point the consequences of this division (and many other divisions with the FLT, that are beyond the scope of this blog, such as the TERF-Trans Exclusionary Radical Feminist and the Queer FLT debate) such that while everyone or, for the purpose of the affectees, every woman, is entitled to her own opinion, this has the essential effect of diluting the force of the movement as it must exist in the 21st century. Therefore, before agreeing to disagree, women must reevaluate and reorganize, or else the FM could potentially fall victim to the same vice that the American Civil Rights Movements so narrowly avoided, the ‘us vs. them’ approach (or more specifically, the Malcom X vs. Martin Luther King Jr. approach).


[1] R. West, “Jurisprudence and Gender” (1988), 55 Uni. Of Chicago Law Review 1.
[2] See generally, Chap. 14 of M. Freeman, “Lloyd’s Introduction to Jurisprudence”, Ninth Edition (2014), Sweet & Maxwell.
[3] Ibid.
[4] S. Estrich, “Real Rape” (1987).
[5] Charlesworth, Chinkin and Wright, “Feminist Approaches to International Law” (1991), 85 American Journal of International Law 615.
[6] K. Gross, “Re-Vision of the Bankruptcy System: New Images of Individual Debtors” (1990), 88 Michigan Law Review 1506.
[7] C.A. MacKinnon, “Difference and Dominance: On Sex Discrimination” (1987), Feminism Unmodified; Discourses on Life and Law.
[8] A. Scales, “The Emergence of Feminist Jurisprudence: An Essay” (1986), 95 Yale Law Journal 1373.
[9] C. Littleton, “Restructuring Sexual Equality” (1987), 75 California Law Review 1274.

The writer, Sana, is a lawyer and legal academic based in Lahore, with a keen interest in Jurisprudence and Islamic Law. Previously, she has studied the University of London's International LLB Honours degree at University College Lahore, securing First Class Honours. 

Saturday, 7 March 2020

Why do States obey international law?

It is very obvious to read remarks that international law lacks a number of features that would be considered key in any domestic legal system. Some of the features would include a proper system of courts with compulsory jurisdiction, a legislative organ that enacts law, and an administrative body that secures compliance with such law.  Also, the very nature of international law and the subject it covers makes it impossible for the system to have international equivalents to a police force or a system of prisons. And it is these missing elements in the system, which has led some to argue that international law isn't law at all but a system of niceties that originated in the courtesies that Kings once extended to one another.

A diversified view of this argument lies in the fact that the states, the subjects of international law, actually consider international law to be concrete law. It is worth mentioning that International lawyers do not talk in the language of morality or efficacy; they speak of breaches of legal obligations and rights enshrined in treaties or established through decades of State custom.  Certainly, this picture becomes more apparent when one considers that States feel the need to explain how and why their actions do not amount to breaches of customary international law. And it can be concluded that few (if any) States would be comfortable admitting that they have breached international law.[1]
We can cite many reasons for the obedience that States render to international law and one of the prime among them would mean efficacy. International law governs numerous aspects of international relations and includes wide topics from diplomatic immunity to the passage of ships on the high seas. After looking at the rules we find that, these rules provide established methods for undertaking certain activities and it is therefore easier to abide by them than to suffer the confusion that would entail if each State went its own way. Also, we must bear in mind the fact the States contribute towards making of international law and they often represent the most convenient way of getting things done.[2]
However, this doesn`t provide an exact answer as to why states obey international law when it is inconvenient for them to do so. This is explained if one considers the approbation and criticism that States suffer if they are seen to be in breach of international law. Primarily, in order to protect their reputation and to maintain their balance & status in the international community, States have to be seen as upholding the rule of law; otherwise they will suffer at the hands of other States.
Even this however does not explain why even powerful States so often obey international law when it is not in their interests to do so. a reason for this obedience lies in the common aims and ambitions of all States that international law represents.
However, even the powerful states obey international law to a great extent even when it is not in their interest to do the same. The possible answer lies in the fact that international law represents and lies in the common aims and ambitions of all states. Also, International law is seen by many States as setting standards that must be achieved for the good of all. The Universal Declaration of Human Rights and even the founding of the United Nations, and the League of Nations before it, all represent the collective aspiration of States and their citizens to strive for a better world. It is worth mentioning that policy considerations and interests often pull against this aspiration in the short term but it remains in place.


[1]Harold Hongju Koh, Yale Law School, Why Do Nations Obey International Law?, Yale Law School Legal Scholarship Repository, 1-1-1997
[2] Ibid

Sunday, 23 February 2020

How has State sovereignty been affected by the increased involvement in international law of Inter-governmental Organisations, Non-governmental Organisations, Multinational Corporations, and Individuals?

International law has originated and evolved as a law made by the sovereign states and meant to be applied to sovereign states.  The position until the beginning of the 18th century was that the States were the only entities that even had international legal personality.  In essence, this meant that only States were capable of accepting obligations to other States and enforcing their rights against them. If we look at it very closely, even today states enjoy the most complete form of international personality recognised by international law.  And it is this original legal personality which has led to the derivation of other legal personality, if they have any, under international law.[1]

We must confess that increased globalisation and trade along with changing social attitudes have had a marked effect on international law. In 1949[2], the International Court of Justice recognised that international organisations too could have international personality. This was a new and unknown concept at that time. Subsequently, the ICJ reasoned that international organisations such as the UN were created by States to perform certain important functions. It was therefore necessary for these organisations to be able to further their objectives that they have the degree of legal personality required for this purpose. As already stated, these organisations draw their personality from the original personality of their member States. But in theory, this ought not to have any effect on the sovereignty of States, which still enjoys the highest form of personality under international law. Moreover, the fact is that States now face the challenge that they may be subjected to legal proceedings by these organisations if they fail to abide by their obligations towards them.
Under ordinary circumstances, multinational companies and individuals do not enjoy the status as “personality” under international law. However, it has to be noted that many domestic jurisdictions interpret the doctrine of State immunity in a very restrictive manner. In essence, this means that States can no longer plead immunity when there is a challenge against them before a domestic court, in another jurisdiction, in cases involving a commercial transaction between a State and company or individual[3].
Also, in case of international organisations, as well as individuals and multinational companies, States have the power to protect their own rights and to ensure that the organisations perform their proper functions by resorting to legal action. Therefore, it is safe to say that although international organisations have emerged with legal personality, the influence of States on international law has not weakened considerably.
In the context of international law, individuals present a more complex entity than international organisation. The rationale that individuals could be legally responsible for breaches of international law came into being after the Tokyo and Nuremberg Tribunals following World War II. Subsequent to that, they also became the recipient of rights under international law. In accordance with changing perspectives, human rights treaties now obligate States to protect their own citizens. A number of these treaties also incorporate individual complaint mechanisms whereby individuals can file complaints against their States, to administrative bodies created by these treaties. Although we have a long way to go and still a step away from proper legal personality, this power has helped to lift the veil of sovereign immunity that formerly cloaked the relations of States and their citizens. Hence, it can be concluded that sovereign immunity no longer enjoys the status it did earlier.


[1] Reparation for injuries suffered in the service of the United Nations, Advisory Opinion: ICJ Reports 1949
[2] Ibid
[3]See, Section 3 of the State Immunity Act 1978

Saturday, 28 December 2019

Councils or the Courts – Who reigns Supreme?

In the case of Samuels v. Birmingham City Council (2019), the councils’ duties to provide suitable accommodation to those declared homeless were explored by the supreme court. The Supreme Court investigates how far they must acknowledge the guidance given in legislation and from the Ministry of Housing, Communities and Local Government and the interaction between benefits and the council’s ultimate decision to provide aid.  The label of intentional homelessness came to light following the case with much criticism from the media, due to the fact it seemed almost impossible in reality.
Ms. Samuels Situation
In a privately rented house in Birmingham, Ms Terryanne Samuels and her 4 children were found to be short on their rent payment for the month by just over £150. This caused them to enter financial difficulties and with nowhere to turn following this, Ms Samuels made an application to the council declaring her and her children homeless.
Due to the fact that Ms Samuels was accompanied by her children and was reliant on social security benefits, she fell under the impression the council would fulfil their duty and provide new suitable accommodation to the family. The council’s response, however, was not what she was expecting. Birmingham council chose to interpret Terryannne’s situation as being “Intentionally homeless “claiming the shortfall could have been made up by other benefits and therefore she was owed nothing.
The Courts Involvement
This dispute was initially brought to the County Court where the decision was found to be in favour of the council. However, due to their being ambiguity and a sense of injustice in not issuing any aid to the family, the dispute rose up the court hierarchy on appeal.
Judges consistently preferred the argument that the guidance given to councils was not binding and that they had the right to declare Terryanne had sufficient benefits that could have been repurposed to be put towards housing (when the actual benefit intended for this cause ran out). Upon reaching the highest domestic court (the Supreme court), the overall perception greatly varied from those previous. A unanimous judgement was passed, declaring that the council was bound by duty to help Ms Samuels as instructed by the purported guidance and that therefore she was owed reparation.
But why did this dispute cause such conflict that it ascended to the highest court of the land?
The Councils Perception
The underlying legal question established via the arguments of Birmingham council was declared to be:
Does the 1996 act permit for interpretation as to include benefits for purposes other than housing when assessing expenses in relation to suitability of accommodation?
Birmingham City Council argued that relevant expenses had to be considered as a whole and therefore without purpose. The 1996 Housing act and 2006 guidance were deemed only to be “recommendations” upon how they carry out their work and so in Terryanne’s case, they were able to extend the definition to cover all her benefits in considering if her previous residence had been suitable. When assessing her case before the legal trial a council officer declared that her living allowance of £750 was “excessive even for a family of that size.” Hence, they proposed that benefits intended for general living could have been used to prevent the shortfall and therefore there was no need for her to leave this property (making her, by definition intentionally homeless).
Essential Guidance or a Mere Recommendation?
The (S.191) Housing Act 1996 establishes the council’s duty to secure living arrangements for those declared homeless providing they have not done so intentionally.
It defines intentional homelessness to be as follows: “Whether they deliberately did or failed to do anything in consequence of which they cease to occupy accommodation which was available for their occupation and which it would have been reasonable for them to continue to occupy.”
Therefore, the courts would have had to decide if Terryanne met this test.
Similarly, the Homeless Order 1996 declares that the factors that must be considered when deciding the suitability of accommodation that was occupied by the tenant before the declaration of homelessness.
They include:
  • financial recourses available
  • salary/fees
  • social security benefits
The Supreme Courts Response
The Supreme Court dissented from the findings of the other courts and declared that Ms. Samuels should not have to use her other living expenses. It was supported that she should not have to choose between paying for accommodation and feeding her 4 children as this hindered her ability to live securely and depend upon her benefits, diminishing their purpose. The justices detailed that they agreed with the defenses reasoning that all expenses are included however due to the absurdity and hardship this would cause this was not the right action to take.
The court also decided that her living expenses were not excessive as previously stated by the council but rather “reasonable.” By the council’s standard it fulfilled the definition of reasonable and therefore should not be limited. Lord Carnwath who delivered the judgement blamed ambiguity in the limited guidance given to the councils. He also showed distaste for the concept that anyone can be found intentionally homeless as mitigating factors are often at play.
This judgement was praised by the media for the hardship it prevented and depicted the courts as generous in its choice to be broad in application, rather than to acknowledge only the strict wording of the guidance that may have been done in a literal approach.
Moving forward?
With the judgement of this case creating a positive outcome many hope it is a guiding light moving forward in relation to how the law interacts with the benefit system. However, this case may just be the tip of the iceberg. Many now want to see the monitoring of cases where people are wholly reliant on benefits so that they are treated with the same sympathy as Ms. Samuels. Will councils begin to take a more worldly perspective in their assessment of cases like this one, or will they maintain that they have full discretion over how they apply their functions? Lord Carnwath stated he hopes councils take guidance from this case a request that appears to be shared by many members of the public.


This article was originally written by Emily Counter for The Student Lawyer. The Student Lawyer is a fantastic source of free information for law students.

Sunday, 24 November 2019

Taming the Social Media Giants: How far should the state go in regulating online content?


The law, history teaches us, lags inevitably behind technological change. In respect of no development is this more true than the ‘Information Revolution,’ those sweeping and manifold transformations brought about by popular and near-instantaneous access to the internet. Proving a particular challenge to regulators is social media. Compare, by way of illustration, the regulatory scheme governing more traditional media with that applicable to the media of this new digital age. Whereas television content is beholden to a comprehensive set of guidelines and overseen by a government-approved regulator, content published via social media exists in what may more accurately be described as a regulatory ‘wild west’. It is my argument that more stringent legal safeguards need to be built into the online sphere, and that this is a challenge that the state cannot shy away from.

In my view, the most insidious by-products of this technological revolution is the emergence of ‘fake news’. Of course, the dissemination of false information has long been used as a tool to manipulate public debate, but the confluence of social media and AI has undoubtedly intensified the phenomenon. Individuals can now be targeted via sophisticated algorithms that draw on data from our online activity. Examples of fake news are innumerable, but, according to snopes.com, some of the most viral false stories from 2017-2018 include: claims that Black Lives Matter protestors blocked emergency services from reaching hurricane victims, claims that illegal immigrants started California wildfires, and claims the leaders of Islamic State had Barack Obama on speed dial. And the problem is growing exponentially: evidence of concerted online disinformation campaigns has been found in fort-eight countries since 2018.

Why is this so harmful? Partly, the answer lies in our psychology. Social psychologist Sander Van Der Linden posits that, as fakes news takes advantage of our pre-existing biases, it often spreads faster and more-widely than real news stories; moreover, once we have been exposed to doctored information, it is very difficult to remove the impression, even once myths have been debunked. This has stark implications for our public life. If citizens do not share, as a starting point, a common appreciation of what is broadly true and false, how can any semblance of mature, healthy democratic debate take place? This is before we even begin to consider the foreign interference aspect of fake news or the more palpable impacts of disinformation; last year, for instance, more than twenty people were killed in India after false rumours went viral alleging the presence of child abductors in several villages across the country.

The legal status-quo is essentially toothless in the face of these challenges. Being a platform as opposed to a publisher, Facebook is not liable for the content it hosts, and is only obliged to remove patently illegal material – child sexual exploitation, incitement to violence – once brought to its attention. In regard to those harms with a less clear definition, such as online disinformation, there is even greater legal immunity, if not total discretion. Clarifying Facebook’s policy, Nick Clegg has stated that content from political campaigns will, by default, by treated as “newsworthy,” even if otherwise in violation of the platform’s standards, and will thus be exempt from fact-checking. Politicians will be allowed, indeed   tacitly encouraged, to continue lying to us.

The UK Government has recently published a ‘White Paper on Online Harms’ which aims to fill this regulatory vacuum. Key to the proposals is the imposition of a statutory duty of care on social media companies to take reasonable steps to protect their uses, thus shifting responsibility from individuals to the platforms themselves. This duty of care is to be enforceable via an independent regulatory body.

Although welcome, these proposals do not go far enough. Firstly, there is a strong case for imposing a regime of strict, as opposed to negligence based, liability – social media companies have powerful AI tools at their disposal which could enable harmful content and disinformation to be filtered out before even first posted. Secondly, to truly tackle the problem of disinformation, the response needs to be not just reactive but also proactive, incorporating a public education element.  For example, researchers at the University of Cambridge have developed a technique to psychologically ‘inoculate’ people to fake news by exposing them, via an online game, to the methods used to spread disinformation. Whilst this may seem somewhat far-fetched to be the stuff of public policy, it is essentially the position taken in Finland. Following the country’s 2014 Anti-Fake News Initiative, a response to increasing Russian electoral interference, all high school students undergo a course designed to build a ‘digital literacy toolkit,’ enabling them to spot false and inflammatory information. It is worth noting that the Press Freedom Index ranks Finland first in terms of public trust in both the media and democratic institutions.

Opponents of online regulation argue that greater state oversight threatens to have a chilling-effect on freedom of speech. In particular, many are uncomfortable with the prospect of a government agency setting rules as to what constitutes ‘harmful speech,’ and inherently normative category. However, the problem with this line of libertarian thinking is that we are in fact already in a situation where regulators set arbitrary rules as to balancing of competing rights online. These regulators are Facebook and other social media giants, and they are far from neutral actors; the more time we spend on these platforms, the more profitable they are from an advertising perspective, and there is no better way to ensure our continuous attention than through emotive content that plays on our fears. Somebody always sets the rules. We need to ask: who, how and for what purpose? Surely it is better to have the framework for online engagement set by a legally reviewable public agency than by Mark Zuckerberg.

More broadly, I’d ask the White Paper’s critics to reflect on what we mean when we talk about freedom in this context. From the consumers perspective, does genuine freedom of thought not entail informed choice, which can only be ensured within a reasonably fair, thorough and unmanipulated media landscape? From the publishers perspective, ought not freedom of the press, historically fundamental to our public life, be paired with a corresponding duty to exercise this freedom responsibly?


The writer, Philip Matthews, is an aspiring barrister based in London, with a keen interest in European Law and Tort Law. Previously, he has studied history at the University of Oxford and the GDL at City, University of London. He is currently pursuing the BPTC at BPP Law School in London.