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  • S Theil, 'The Problem with the Normative Content of Section 24 of the Constitution of South Africa' (2019) 37 Nordic Journal of Human Rights 105
    DOI: 10.1080/18918131.2019.1643669
    The article critically examines the South African Constitutional Court (ZACC) case law and doctrine on section 24 (right to an environment) of the Constitution of South Africa. It argues that the right has been left normatively impoverished, and especially the interaction and relationship with the cornerstone statute, the National Environmental Management Act (NEMA) remains unclear. This issue centres specifically around three core issues. First, it has not been settled whether section 24 encompasses an individual right and an additional positive obligation, or constitutes a composite right. Second, the individual right contained in section 24 requires further definition and clarification. Key terms have not been given distinctive constitutional contours, and it remains uncertain to what extent legislative instruments such as NEMA are legitimately filling these gaps. Finally, it is unclear how the principle of constitutional subsidiarity applies to section 24 of the Constitution. Even assuming that the principle applies in essentially the same way as to other constitutional provisions, one cannot reasonably determine whether ordinary legislation reflects and gives effect to a constitutional right, if one has no clear notion of the latter’s content.
  • S Theil, 'The Online Harms White Paper: Comparing the UK and German Approaches to Regulation' (2019) Journal of Media Law 1
    DOI: 10.1080/17577632.2019.1666476
    The internet has revolutionised our ability to communicate and connect across historic social, political and geographic divides. Where previously gatekeepers mitigated and negotiated access to mass media platforms, today potentially anyone – and any content – can reach millions of users in an instant. This development bears great opportunities for the democratisation of expression and the diversification of public discourse but has likewise broadened the impact of harm caused online. This raises the question how platforms and services can be regulated effectively to combat online harms without jeopardising free and open discourse. The paper explores the Online Harms White Paper published by the UK Government earlier this year and compares its regulatory approach with the infamous German Network Enforcement Law.
  • S Theil, 'Germany - Federal Constitutional Court qualifies the distinction between fundamental rights obligations of the state and private actors' [2019] Public Law 790 [Case Note]
    The German Federal Constitutional Court (FCC) recently issued a significant decision requiring Facebook to reinstate the page of a far-right party in the lead up to the European Parliament election. The party had shared content to its page which Facebook classified as violating provisions of its community standards on hate speech. Facebook first curtailed the visibility of the posts and prevented the sharing of further content, before ultimately deleting the page entirely. The case suggests that at least where private actors have acquired a level of market dominance and provide a significant platform for public communication and discourse, freedom of expression can legitimately limit their contractual autonomy: perhaps to the point where the obligations are indistinguishable in practice from those of the state.
  • S Theil, 'Prorogued until October? How the Prorogation Act 1867 could be used to sideline Parliament for good' (2019) Verfassungsblog
    The British government under Prime Minister Boris Johnson yesterday secured a prorogation of Parliament from the Queen. Barring an intervention from the courts, Parliament will stand prorogued no earlier than Monday 9th September and no later than Thursday 12th September 2019 to Monday 14th October 2019. Much attention focused on the timing of the prorogation. The government evidently sought to avoid the impression that the sole, or indeed primary goal of the prorogation was to cut short the time for parliamentary debate of Brexit. For many commentators the weeks from now until 12 September and from 14 October to 31 October (the day the United Kingdom exits the European Union) were crucial. It tipped the balance of the prorogation from blindingly unconstitutional to constitutionally dubious, but permissible. Regardless of whether one finds this line of reasoning convincing, there is a threat that this prorogation can be extended indefinitely that has been largely overlooked: the Prorogation Act 1867.
  • S Theil, Jacob Rowbottom, Catherine O’Regan and Oliver Butler, Response to the public consultation on the Online Harms White Paper (Bonavero Report 3/2019, Bonavero Institute of Human Rights 2019)
    This constitutes the joint response of Oliver Butler, Kate Jones, Harriet Moynihan (Chatham House), Catherine O’Regan, Jacob Rowbottom and Stefan Theil to the public consultation on the Online Harms White Paper. Our overarching recommendation is that any regulatory approach to online harms should be expressly founded on human rights law. Human rights law provides both a suitable normative framework as well as crucial guidelines to assist regulatory decision-making, especially in balancing competing rights and interests in the online sphere. While the White Paper frames its approach as involving a duty of care, we believe that this terminology may be misleading: the codes of practice and the penalties for transgressions are better understood as conventional instruments of statutory regulation. We have rule of law concerns due to the broad scope of platforms and services covered. The regulator must be able to provide meaningful oversight and companies require clarity on what enforcement measures they can expect. Comparable legislation, like the Network Enforcement Law in Germany, is limited to larger companies and focused on a narrower set of platforms and services. If the broad scope outlined in the White Paper is retained, we suggest the regulator considers exempting certain companies partially or entirely from regulation (see Question 5). Legislation should consider a two-tier approach to regulation which differentiates between: (a) harms with a strong evidence basis and a reasonably clear definition (‘definite harms’) and (b) harms with a weaker evidence basis or with a less clear and context-specific definition (‘contextual harms’). While a prescriptive regulatory approach to definite harms seems appropriate, legislation may provide a more flexible oversight model for contextual harms. This would permit a degree of variation as to the standards applied by companies, increasing the choices available to users (see Question 8).
  • S Theil, 'Nadine Strossen, Hate: Why We Should Resist It with Free Speech, Not Censorship (Oxford University Press 2018)' (2019) 69 University of Toronto Law Journal 404 [Review]
    Across nine chapters, Strossen draws on some evidence from social sciences and psychology as well as comparative legal perspectives to defend the orthodox approach of the Supreme Court to free speech. At the heart of the book stands an optimistic and at times idealistic belief in the individual, especially their capability to challenge and mitigate the harms associated with hate speech. This optimism is admirable, even when it appears at odds with historic and contemporary treatment of marginalized groups. Despite its many merits and thoughtful contributions, there are also some significant points of criticism that relate chiefly to the comparative legal work and deficits in scholarly rigor. Strossen plainly has a strong view in the normative debate on free expression, but her superficial exercise in comparative human rights does the argument no favours: it reduces the examined legal systems to crude caricatures. The book thus illustrates the challenges faced by scholars engaged in comparative work. Apart from detailed and careful research, they must adopt a strong methodology that counteracts tendencies to cherry pick examples that support foregone conclusions.
  • S Theil and K O'Regan, Comments on Facebook’s draft Charter for an independent review board (Bonavero Report 2/2019, Bonavero Institute of Human Rights 2019)
    Facebook has invited comments from experts and civil society on its draft charter ‘An oversight Board for Content Decisions’. The Bonavero Report focuses in turn on three major areas of debate: (1) the mission of the independent board what issues it can and should address and practical concerns relating to the competing models; (2) the standards of review the independent board ought to apply in fulfilling its mission,and the corresponding implications for Facebook and its content moderation system;and finally (3) the institutional design of the independent board, how it will secure its independence, determine its membership, and the procedures employed.
  • S Theil, 'Unconstitutional Prorogation' (2019) UK Constitutional Law Blog
    The piece develops a twofold argument: first, that ministerial advice tendered to seek a prorogation of Parliament under these circumstances is unconstitutional and that the Monarch should disregard it as a matter of constitutional convention; and second that holding otherwise would in effect grant the Prime Minister an unqualified veto over parliamentary business, leaving the government in an unconscionable position of power over the sovereign Parliament. Such an outcome would be fundamentally at odds with British parliamentary democracy, especially principles of democracy and representative and responsible government.
  • S Atrey, Intersectional Discrimination (Oxford University Press 2019)
  • Juan Pablo Perez-Leon Acevedo and Thiago Alves Pinto, 'Enforcing Freedom of Religion or Belief in Cases Involving Attacks Against Buildings Dedicated to Religion: The Al Mahdi Case at the International Criminal Court' (2019) 37 Berkeley Journal of International Law 437
    The international community has increasingly witnessed widespread and systematic attacks on buildings dedicated to religion in armed conflicts. Such violations of international law have deprived many individuals of places to express their beliefs within their communities. Although international law sources already protect these buildings, recent experience suggests that greater protections are required, particularly in times of armed conflict. This Article seeks to determine the extent to which the International Criminal Court (ICC) can operate to protect human rights, particularly the right to freedom of religion or belief, while dealing with intentional attacks against buildings dedicated to religion. The Al Mahdi case at the ICC provides the analytical foundation for this research. Al Mahdi was convicted in 2016 of the war crime of attacking buildings dedicated to religion. The attack, implemented by a militant group associated with al Qaeda, targeted ten religious buildings in Timbuktu, Mali, severely affecting the city’s religious and cultural diversity. A critical analysis of the Al Mahdi case provides normative guidelines for legal issues arising from the protection of buildings dedicated to religion during armed conflicts. This Article argues that the ICC largely focused on violations of the collective right to cultural life at the expense of a proper consideration of serious breaches of freedom of religion or belief. We also discuss potential interactions between the ICC and international human rights law.
  • C O'Regan, 'La promesa de las Constituciones: una reflexion desde Sudáfrica' in Roberto O. Niembro, Sergio Verdugo (ed), La Justicia Constitucional en Tiempos de Cambio (Suprema Corte de Justicia de la Nación, Mexico 2019)
    ISBN: 978-607-552-131-2
  • Ch. Kypraios Kypraios and E. Fasia, 'M/V Virginia G Case (Panama/Guinea-Bissau)' (2019) Max Planck Encyclopedia of Public International Law
  • Ch. Kypraios Kypraios and B. Reynaud, 'O Papel da Empresa no Espaço Exterior: Questões Jurídicas Relativas à Exploração Mineira de Asteróides' in (ed), Las Empresas Transnacionales em el Derecho Internacional Contemporáneo: Derechos Humanos y Objetivos de Desarrollo Sostenible (Tirant Lo Blanch 2019)
  • L Lazarus, 'Secrecy as a Meta-Paradigmatic Challenge' in Benjamin Goold and Liora Lazarus (eds), Security and Human Rights (Hart Publishing 2019)
  • O Butler, 'The Implications of a No-deal Brexit for Data Protection in the United Kingdom' (2019) 3 Journal of Data Protection and Privacy 7
  • O Butler, 'Wagner, Kettemann, Vieth (eds.), Research Handbook on Human Rights and Digital Technology' (2019) 83 MLR 698 [Review]
  • S Theil, 'The German NetzDG: A Risk Worth Taking?' (2018) Verfassungsblog
    This contribution gives a succinct overview of the NetzDG and explain how some of the criticisms are overstated and partially misguided. While the NetzDG is unlikely to resolve all challenges surrounding social media and freedom of expression, and undoubtedly presents a certain risk of stifling expression online, I believe it is nonetheless a significant step in the right direction. Rather than undermine freedom of expression, it promises to contribute to more inclusive debates by giving the loud and radical voices less prominence.

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