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Legal Aid and the Future of Access to Justice by Catrina Denvir, Jacqueline Kinghan, Jess Mant and Daniel Newman
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Freedom of Expression and its Legal Consequences in the Era of Social Media
Full text linkFreedom of expression has become a household phrase, but its meaning is deeper than first appears, as found in some international instruments and national laws. The Universal Declaration of Human Rights, the first human rights instrument adopted by the United Nations (UN) General Assembly Resolution in Paris on 10 December 1948 to abate human rights violations and atrocities after the Second World War, addressed freedom of expression as one of the touchstones of democracy. Presently, all 192 member states of the United Nations have signed up to it, by virtue of the other UN treaties they have signed, even though it was intended to be a soft law. The Declaration was signed as a soft law to be respected but was without binding force. however, through the passage of time, it has become a customary international law with binding force. Freedom of expression, which is an inalienable right, permits human beings, among other things, to seek information, and if received, the recipient may impart the same through any media, regardless of frontiers, to inform and educate people about their rights.
The importance of freedom of expression is that it is one of the pillars of human rights and is found in all the relevant international and regional human rights instruments. The international human rights instruments that have provisions on freedom of expression are: the International Covenant on Civil and Political Rights (ICCPR), which came into force on 23 March 1976, after it had been adopted for signature, ratification and accession by the UN General Assembly on 16 December 1966; the International Convention on the Elimination of All Forms of Racial Discrimination, which was adopted by the UN General Assembly on 21 December 1965; and the Convention on the Rights of the Child, which was adopted by the UN General Assembly on 20 November 1989 and came into force in September 1990.
All three regional human rights instruments have recognized freedom of expression as an indispensable part of human rights and have provisions for it. The three regional human rights instruments are: the European Convention on Human Rights (ECHR), which was signed in Rome in 1950 and came into force on 3 September 1953; the African Charter on Human and Peoples’ Rights 1981 (ACHPR), which came into force on 21 October 1986; and the American Covenant on Human Rights (ACHR), which was adopted in 1969 and came into force on 18 July 1978. Freedom of expression is also recognized by the Declaration of Human Rights Defenders, which came into force in 1998 to protect human rights defenders within the context of their work. The rights specifically mentioned in the declaration include freedom of expression. There are also national laws on freedom of expression. The position of Ghana is contained in Article 21 of the Constitution of Ghana 1992, which guarantees freedom of speech and expression, which include freedom of the press and other forms of media such as social, print and electronic media.
The article shall address the limitations placed on freedom of expression, even though it appears to be absolute when one reads Article 19 of the Universal Declaration of Human Rights. Article 19 of the ICCPR seems to suggest that freedom of expression is not absolute, and a person who seeks information may impart it through any media, including social media, upon receipt of the same, provided the information put out on media, including social media, is within the limitations placed on freedom of expression. Article 9 of the ACHPR also suggests that the right to receive information is absolute, but the right to express and disseminate opinion shall be within the law prescribed by the member states.
Freedom of expression is a term of art and such freedom may be expressed in the form of writing, orally, print, or any other form of art or pictorial representation, and the limitations are placed on any of the modes and forms of expression stated above. Article 13 of the ACHPR prescribes criminal punishment for a person who goes beyond the limitations placed on freedom of expression with the aim of protecting public order, social order, national security, public health, public morality, and respecting the rights or reputations of others.
The article aims to discuss all the limitations imposed on freedom of expression, including those punishable either civilly or criminally, or both, for the purposes of respecting the rights of others and not defaming or slandering another person, protecting national security, public order, public health, or morality. The recent trend of events is that people go on social media to defame others, violate their rights, cause fear and panic, and publish information about security threats, public order, and morality with impunity under the guise of freedom of expression. Social media, as a set of interactive internet applications, facilitates the creation, curation and sharing of the contents of information created either by individuals or in collaboration with others, and at the moment it seems to be the fastest form of media. The article shall discuss freedom of expression and its limitations from different human rights instruments and domestic statutes in respect of sanctions that can be imposed on a person who goes beyond their rights to violate the rights of others or defame others, or on a person who has published material that would affect the security of the state, public order, public health, or morals. It shall further discuss the forum where an action may be brought against the person who violates the rights of others in the name of freedom of expression and the appropriate forum where a person charged with an offence under it may be prosecuted.
Keywords: admissibility of evidence; communication; African Charter on Human and Peoples’ Rights; criminalization of freedom of expression; documentary information; freedom of expression; International Covenant on Civil and Political Rights; limitations on freedom of expression; social media; Universal Declaration of Human Rights
The British Courts and Compulsory ADR—How Did That Happen?
Full text linkOn 29 November 2023, the Court of Appeal held in James Churchill v Merthyr Tydfil County Borough Council, that the courts of England and Wales are entitled lawfully to order parties to engage in non-court-based dispute resolution processes. This important decision should not come as a surprise. This article will argue by reference to case law, judicial commentary and the Civil Procedure Rules (CPR) that this decision is the most recent expression of an impulse the courts have long maintained: that a case can be dealt with justly by moving (by various means) litigants away from the judgment seat to one of negotiated, consensual outcomes. The decision corrects an anomaly within the CPR that obliges parties to further the overriding objective by considering alternative dispute resolution but deprives the court of a particular remedy to enforce that obligation. This article will trace the roots of the Court of Appeal decision and identify to what extent it is the natural progression in judicial thinking, and it truly breaks new ground.
Keywords: ADR; justice; civil justice; court reforms; overriding objective; Halsey; CPR; Churchill v Merthyr Tydfil; Article 6; arbitration agreements
What Have Introductory Books on Legal Reasoning Ever Done for Us?
Full text linkThe purpose of this article is to investigate, and to review, a number of recent introductions to law with the emphasis being on those introducing students to legal reasoning. The investigation will have as its focus not just reasoning methodology but equally the ontological and epistemological foundations upon which the reasoning is based. The investigation will be comparative in its orientation; it will examine, in particular, works from common lawyers and French jurists, with references also to books produced by Roman law specialists (Romanists). It will show that many introductions are based on an ontological foundation that emphasizes rules—the rule model—and that, with regard to some of the introductory books, this emphasis has engendered what is arguably a simplistic view of legal knowledge and method. Are such books, it might be asked, epistemologically reliable? To help answer this question, another comparative orientation to be undertaken is to examine some introductory works in the social sciences in order to see not only how these works may differ in their approach to knowledge and methodology but also how methodological discussions in the social sciences could be valuable for lawyers.
Keywords: analogy; epistemology; introductions; logic; ontology; perception; rule model; syllogism
What’s in a Name? Children’s Rights and Legal Voice within Administrative and Juridical Procedures of Recognition of Same-Sex Filiation
Full text linkThis performative text, consisting of writing and visualizations, explores children’s voices within court proceedings connected to the legal recognition of intended mothers within lesbian-parented families. The research used long-term ethnographic observations and biographical interviews focused on French and Italian families from the “activist generation” who devoted their efforts to obtaining reproductive and family rights. The article provides a critical account of the implementation of Article 12.2 of the United Nations Convention on the Rights of the Child 1989 (UNCRC)—that is the right to be listened to in judicial and administrative proceedings affecting children. Our main argument is that, in contrast to the intention of Article 12.2 of the UNCRC, children are given a more symbolic than substantial voice in court proceedings and administrative procedures. The text situates children’s voices both in the wider context and in everyday life. Drawing on ethnographic research data, we show where and to what extent children’s voices emerge or, on the contrary, are silenced.
Keywords: same-sex parenting; filiation; children’s rights; ethnography; creative writing; visual methods; performative text; Euro-American kinship; Italy; France
Electronic evidence in arbitration proceedings: empirical analysis and recommendations
Full text linkThis paper addresses electronic evidence focusing on arbitration rules of the leading ADR providers. It also narrows the topic to an empirical assessment using six categories of electronic evidence in a sample of 92 arbitration proceedings. The paper aims to offer the concept of electronic evidence in international arbitration, its admissibility and relevance criteria, and reach conclusions from an empirical analysis of a large sample of arbitration proceedings gathered from the Centro Brasileiro de Mediação e Arbitragem (Brazilian Center for Mediation and Arbitration). We conclude that electronic evidence is regularly used in arbitration and is relevant to the arbitrators’ reasoning. We propose a revision on the 2016 Draft Convention on Electronic Evidence to include arbitration.
Index words: alternative dispute resolution; arbitration; electronic evidence; admissibility; relevance; weight; empirical analysis 
The Law Commission and section 69 of the Police and Criminal Evidence Act 1984
Full text linkIn 2000 section 69 of the Police and Criminal Act 1984 was repealed. The result was that a common law presumption came into effect that computer evidence was considered reliable unless there was evidence to the contrary. The Law Commission had recommended repeal of section 69 without any replacement. This article demonstrates that the Law Commission either misunderstood, or misrepresented, the sources it cited to justify its recommendation that computer evidence should be considered reliable. Two of the three main experts whose work was cited have confirmed that they were misrepresented. The recommendation and the resulting presumption therefore lack any factual or evidential basis.
Index words: Law Commission; England & Wales; Police and Criminal Evidence Act 1984; section 69; repeal; presumption computers are reliable; misunderstood; misrepresente
Authenticating the administrative contract in electronic form and its legal force in Jordanian law
Full text linkThe administrative contract is one of the transactions that may be concluded electronically. For this reason, it is important that it is legally regulated. The electronic contract is created by special procedures via electronic certification bodies. This article considers the authentication of the electronic administrative contract in Jordan. It also examines the legal value of the contract before the Jordanian judiciary.
Index words: Jordan; Electronic Transactions Law No 15 of 2015; Jordanian Evidence Law; electronic administrative contract; electronic journals; electronic signature; electronic certificatio