Enkele kanttekeningen bij de Wiv 2017: De uitbreiding van bevoegdheden getoetst aan mensenrechten

Enkele kanttekeningen bij de Wiv 2017: De uitbreiding van bevoegdheden getoetst aan mensenrechten external link

van Eijk, N. & Eijkman, Q.

Justitiële Verkenningen, vol. 2018, num: 1, pp: 99-113, 2018

Abstract

Wij presenteren in dit artikel een aantal kanttekeningen bij de Wiv 2017. Dit doen wij door een aantal relevante in Nederland en in de Europese Unie verschenen overkoepelende studies over grondrechten te bespreken. Deze kanttekeningen zijn deels gebaseerd op normatieve uitgangspunten en aanbevelingen uit deze studies, deels ontleend aan nog lopend onderzoek. Gezien de aard en omvang van dit artikel is een selectie gemaakt en beperkt de analyse zich tot het schetsen van de belangrijkste dilemma’s.

Links

https://www.ivir.nl/publicaties/download/JV_2018_1.pdf

bevoegdheden, frontpage, Mensenrechten, Wet op de inlichtingen- en veiligheidsdiensten (Wiv), wiv

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“Fake news”: False fears or real concerns? external link

McGonagle, T.

Netherlands Quarterly of Human Rights, vol. 35, num: 4, pp: 203-209, 2017

Abstract

‘‘Fake news’’ has become a much-used and much-hyped term in the so-called ‘‘post-truth’’ era that we now live in. It is also much-maligned: it is often blamed for having a disruptive impact on the outcomes of elections and referenda and for skewing democratic public debate, with the 2016 US Presidential elections and Brexit referendum often cited as examples. ‘‘Fake news’’ has also been flagged for fuelling propaganda and ‘‘hate speech’’ and even violence. ‘‘Pizzagate’’ is an infamous example of exceptional circumstances in which a false news story had a central role in a shooting incident. In December 2016, a man in Washington D.C. took it upon himself to ‘‘self-investigate’’ a story (a completely unfounded conspiracy theory) that the Hillary Clinton campaign team was running a paedophile ring from the premises of a pizzeria. Shots were fired and he was arrested and charged with assault and related offences. Given all this bad press, it is perhaps little wonder that ‘‘fake news’’ has become a major preoccupation for international organisations, national law- and policy-makers, the media and media actors, civil society and academia. But what exactly is ‘‘fake news’’ and what is all the fuss about? In addressing these questions, this column will also consider historical and contemporary perspectives on the term and its relationship with human rights.

Links

Fake news, frontpage, Human rights, Journalistiek, Mediarecht, post-truth era

RIS

TY  - JOUR
AU  - McGonagle, T.
PY  - 1205
DA  - 2017-12-05
T1  - “Fake news”: False fears or real concerns?
JO  - Netherlands Quarterly of Human Rights
VL  - 35
NV  - 4
SP  - 203-209
UR  - http://journals.sagepub.com/doi/full/10.1177/0924051917738685
DO  - https://doi.org/https://doi.org/10.1177/0924051917738685
AB  - ‘‘Fake news’’ has become a much-used and much-hyped term in the so-called ‘‘post-truth’’ era that we now live in. It is also much-maligned: it is often blamed for having a disruptive impact on the outcomes of elections and referenda and for skewing democratic public debate, with the 2016 US Presidential elections and Brexit referendum often cited as examples. ‘‘Fake news’’ has also been flagged for fuelling propaganda and ‘‘hate speech’’ and even violence. ‘‘Pizzagate’’ is an infamous example of exceptional circumstances in which a false news story had a central role in a shooting incident. In December 2016, a man in Washington D.C. took it upon himself to ‘‘self-investigate’’
a story (a completely unfounded conspiracy theory) that the Hillary Clinton campaign team was running a paedophile ring from the premises of a pizzeria. Shots were fired and he was arrested and charged with assault and related offences. Given all this bad press, it is perhaps little wonder that ‘‘fake news’’ has become a major preoccupation for international organisations, national law- and policy-makers, the media and media actors, civil society and academia. But what exactly is ‘‘fake news’’ and what is all the fuss about? In addressing these questions, this column will also consider historical and contemporary perspectives on the term and its relationship with human rights.
K1  - Fake news
K1  - frontpage
K1  - Human rights
K1  - Journalistiek
K1  - Mediarecht
K1  - post-truth era
ER  -

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Article{McGonagle2017h,
	title = {“Fake news”: False fears or real concerns?},
	author = {McGonagle, T.},
	doi = {https://doi.org/https://doi.org/10.1177/0924051917738685},
	year = {1205},
	date = {2017-12-05},
	journal = {Netherlands Quarterly of Human Rights},
	volume = {35},
	number = {4},
	pages = {203-209},
	abstract = {‘‘Fake news’’ has become a much-used and much-hyped term in the so-called ‘‘post-truth’’ era that we now live in. It is also much-maligned: it is often blamed for having a disruptive impact on the outcomes of elections and referenda and for skewing democratic public debate, with the 2016 US Presidential elections and Brexit referendum often cited as examples. ‘‘Fake news’’ has also been flagged for fuelling propaganda and ‘‘hate speech’’ and even violence. ‘‘Pizzagate’’ is an infamous example of exceptional circumstances in which a false news story had a central role in a shooting incident. In December 2016, a man in Washington D.C. took it upon himself to ‘‘self-investigate’’
a story (a completely unfounded conspiracy theory) that the Hillary Clinton campaign team was running a paedophile ring from the premises of a pizzeria. Shots were fired and he was arrested and charged with assault and related offences. Given all this bad press, it is perhaps little wonder that ‘‘fake news’’ has become a major preoccupation for international organisations, national law- and policy-makers, the media and media actors, civil society and academia. But what exactly is ‘‘fake news’’ and what is all the fuss about? In addressing these questions, this column will also consider historical and contemporary perspectives on the term and its relationship with human rights.},
	keywords = {Fake news, frontpage, Human rights, Journalistiek, Mediarecht, post-truth era},
}

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The Chilling Effect of Liability for Online Reader Comments external link

Fahy, R.

European Human Rights Law Review, vol. 2017, num: 4, pp: 387-393, 2017

Abstract

This article assesses how the European Court of Human Rights has responded to the argument that holding online news media liable for reader comments has a chilling effect on freedom of expression. The article demonstrates how the Court first responded by dismissing the argument, and focused on the apparent lack of evidence for any such chilling effect. The article then argues that the Court has moved away from its initial rejection, and now accepts that a potential chilling effect, even without evidence, is integral to deciding whether online news media should be liable for reader comments. Finally, the article argues that this latter view is consistent with the Court’s precedent in other areas of freedom of expression law where a similar chilling effect may also arise.

Links

https://www.ivir.nl/publicaties/download/EHRLR_2017_4.pdf

chilling effect, defamation, electronic publishing, Freedom of expression, frontpage, Human rights, liability, online reader comments

RIS

TY  - JOUR
AU  - Fahy, R.
PY  - 0824
DA  - 2017-08-24
T1  - The Chilling Effect of Liability for Online Reader Comments
JO  - European Human Rights Law Review
VL  - 2017
NV  - 4
SP  - 387-393
UR  - https://www.ivir.nl/publicaties/download/EHRLR_2017_4.pdf
AB  - This article assesses how the European Court of Human Rights has responded to the argument that holding online news media liable for reader comments has a chilling effect on freedom of expression. The article demonstrates how the Court first responded by dismissing the argument, and focused on the apparent lack of evidence for any such chilling effect. The article then argues that the Court has moved away from its initial rejection, and now accepts that a potential chilling effect, even without evidence, is integral to deciding whether online news media should be liable for reader comments. Finally, the article argues that this latter view is consistent with the Court’s precedent in other areas of
freedom of expression law where a similar chilling effect may also arise.
K1  - chilling effect
K1  - defamation
K1  - electronic publishing
K1  - Freedom of expression
K1  - frontpage
K1  - Human rights
K1  - liability
K1  - online reader comments
ER  -

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Article{Fahy2017b,
	title = {The Chilling Effect of Liability for Online Reader Comments},
	author = {Fahy, R.},
	year = {0824},
	date = {2017-08-24},
	journal = {European Human Rights Law Review},
	volume = {2017},
	number = {4},
	pages = {387-393},
	abstract = {This article assesses how the European Court of Human Rights has responded to the argument that holding online news media liable for reader comments has a chilling effect on freedom of expression. The article demonstrates how the Court first responded by dismissing the argument, and focused on the apparent lack of evidence for any such chilling effect. The article then argues that the Court has moved away from its initial rejection, and now accepts that a potential chilling effect, even without evidence, is integral to deciding whether online news media should be liable for reader comments. Finally, the article argues that this latter view is consistent with the Court’s precedent in other areas of
freedom of expression law where a similar chilling effect may also arise.},
	keywords = {chilling effect, defamation, electronic publishing, Freedom of expression, frontpage, Human rights, liability, online reader comments},
}

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Human rights and encryption external link

Schulz, W. & van Hoboken, J.

pp: 83 pp., 2016

Abstract

The study provides an overview of encryption technologies and their impact on human rights. It analyzes in-depth the role of encryption in the media and communications landscape, and the impact on different services, entities and end users. It highlights good practices and examines the legal environment surrounding encryption as well as various case studies of encryption policies. Built on this exploration and analysis, the research provides recommendations on encryption policy that are useful for various stakeholders. These include signaling the need to counter the lack of gender sensitivity in the current debate, and also highlighting ideas for enhancing “encryption literacy”.

Links

http://www.ivir.nl/publicaties/download/human_rights_and_encryption.pdf

encryption, frontpage, Human rights, unesco

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The Practical and Theoretical Problems with ‘Balancing’: Delfi, Coty and the Redundancy of the Human Rights Framework external link

van der Sloot, B.

Maastricht Journal of European and Comparative Law, num: 3, pp: 439-459., 2016

Abstract

In the realm of privacy and data protection – as in the fundamental rights framework in general – balancing has become the standard approach for dealing with legal disputes. It comes, however, with a number of practical and theoretical problems. Th is article analyses those problems and compares the method of balancing with the original approach of most human rights frameworks, such as the European Convention on Human Rights. It does so by analysing two cases in detail: the European Court of Human Right’s case Delfi v. Estonia and the Court of Justice of the EU’s judgment Coty v. Stadtsparkasse. From this analysis, it follows that the concept of balancing signals a shift away from the deontological and towards a utilitarian understanding of fundamental rights. Th is is not only of theoretical importance, as it could also mean that in time, human rights frameworks as such might become redundant.

Links

http://www.ivir.nl/publicaties/download/1811

balancing, consequentialism, Data protection, frontpage, Mensenrechten, Miscellaneous, Privacy, utilitarianism

RIS

TY  - JOUR
AU  - van der Sloot, B.
PY  - 2016
DA  - 2016-07-14
T1  - The Practical and Theoretical Problems with ‘Balancing’: Delfi, Coty and the Redundancy of the Human Rights Framework
JO  - Maastricht Journal of European and Comparative Law
NV  - 3
SP  - 439-459.
UR  - http://www.ivir.nl/publicaties/download/1811
AB  - In the realm of privacy and data protection – as in the fundamental rights framework in general – balancing has become the standard approach for dealing with legal disputes. It comes, however, with a number of practical and theoretical problems. Th is article analyses those problems and compares the method of balancing with the original approach of most human rights frameworks, such as the European Convention on Human Rights. It does so by analysing two cases in detail: the European Court of Human Right’s case Delfi v. Estonia and the Court of Justice of the EU’s judgment Coty v. Stadtsparkasse. From this analysis, it follows that the concept of balancing signals a shift away from the deontological and towards a utilitarian understanding of fundamental rights. Th is is not only of theoretical importance, as it could also mean that in time, human rights frameworks as such might become redundant.
K1  - balancing
K1  - consequentialism
K1  - Data protection
K1  - frontpage
K1  - Mensenrechten
K1  - Miscellaneous
K1  - Privacy
K1  - utilitarianism
ER  -

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Article{vanderSloot2016,
	title = {The Practical and Theoretical Problems with ‘Balancing’: Delfi, Coty and the Redundancy of the Human Rights Framework},
	author = {van der Sloot, B.},
	year = {2016},
	date = {2016-07-14},
	journal = {Maastricht Journal of European and Comparative Law},
	number = {3},
	pages = {439-459.},
	abstract = {In the realm of privacy and data protection – as in the fundamental rights framework in general – balancing has become the standard approach for dealing with legal disputes. It comes, however, with a number of practical and theoretical problems. Th is article analyses those problems and compares the method of balancing with the original approach of most human rights frameworks, such as the European Convention on Human Rights. It does so by analysing two cases in detail: the European Court of Human Right’s case Delfi v. Estonia and the Court of Justice of the EU’s judgment Coty v. Stadtsparkasse. From this analysis, it follows that the concept of balancing signals a shift away from the deontological and towards a utilitarian understanding of fundamental rights. Th is is not only of theoretical importance, as it could also mean that in time, human rights frameworks as such might become redundant.},
	keywords = {balancing, consequentialism, Data protection, frontpage, Mensenrechten, Miscellaneous, Privacy, utilitarianism},
}

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Annotatie bij EHRM 11 maart 2014 (Jelsevar e.a./ Slovenië) external link

Dommering, E.

NJ, num: 16/17, 2016

Abstract

Klacht naar aanleiding van roman waarin klagers hun familie en moeder herkenden. Afweging door nationale rechter tussen persoonlijkheidsrechten en artistieke vrijheid redelijk. Belang artistieke vrijheid en getuigenverklaringen. Kennelijk ongegrond en niet-ontvankelijk.

Links

http://www.ivir.nl/publicaties/download/1770

Mensenrechten

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Is the Human Rights Framework Still Fit for the Big Data Era? A Discussion of the ECtHR’s Case Law on Privacy Violations Arising from Surveillance Activities external link

van der Sloot, B.

2015

Abstract

Human rights protect humans. This seemingly uncontroversial axiom might become quintessential over time, especially with regard to the right to privacy. Article 8 of the European Convention on Human Rights grants natural persons> a right to complain, in order to protect their individual interests, such as those related to personal freedom, human dignity and individual autonomy. With Big Data processes, however, individuals are mostly unaware that their personal data are gathered and processed and even if they are, they are often unable to substantiate their specific individual interest in these large data gathering systems. When the European Court of Human Rights assesses these types of cases, mostly revolving around (mass) surveillance activities, it finds itself stuck between the human rights framework on the one hand and the desire to evaluate surveillance practices by states on the other. Interestingly, the Court chooses to deal with these cases under Article 8 ECHR, but in order to do so, it is forced to go beyond the fundamental pillars of the human rights framework.

Links

http://www.ivir.nl/publicaties/download/1701.pdf

Big data, conventionality, Grondrechten, Human rights, individual harm, mass surveillance, Privacy, societal interest

RIS

TY  - GEN
AU  - van der Sloot, B.
PY  - 1215
DA  - 2015-12-15
T1  - Is the Human Rights Framework Still Fit for the Big Data Era? A Discussion of the ECtHR’s Case Law on Privacy Violations Arising from Surveillance Activities
UR  - http://www.ivir.nl/publicaties/download/1701.pdf
AB  - Human rights protect humans. This seemingly uncontroversial axiom might become quintessential over time, especially with regard to the right to privacy. Article 8 of the European Convention on Human Rights grants natural persons> a right to complain, in order to protect their individual interests, such as those related to personal freedom, human dignity and individual autonomy. With Big Data processes, however, individuals are mostly unaware that their personal data are gathered and processed and even if they are, they are often unable to substantiate their specific individual interest in these large data gathering systems. When the European Court of Human Rights assesses these types of cases, mostly revolving around (mass) surveillance activities, it finds itself stuck between the human rights framework on the one hand and the desire to evaluate surveillance practices by states on the other. Interestingly, the Court chooses to deal with these cases under Article 8 ECHR, but in order to do so, it is forced to go beyond the fundamental pillars of the human rights framework.
K1  - Big data
K1  - conventionality
K1  - Grondrechten
K1  - Human rights
K1  - individual harm
K1  - mass surveillance
K1  - Privacy
K1  - societal interest
ER  -

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Other{nokey,
	title = {Is the Human Rights Framework Still Fit for the Big Data Era? A Discussion of the ECtHR’s Case Law on Privacy Violations Arising from Surveillance Activities},
	author = {van der Sloot, B.},
	year = {1215},
	date = {2015-12-15},
	abstract = {Human rights protect humans. This seemingly uncontroversial axiom might become quintessential over time, especially with regard to the right to privacy. Article 8 of the European Convention on Human Rights grants natural persons> a right to complain, in order to protect their individual interests, such as those related to personal freedom, human dignity and individual autonomy. With Big Data processes, however, individuals are mostly unaware that their personal data are gathered and processed and even if they are, they are often unable to substantiate their specific individual interest in these large data gathering systems. When the European Court of Human Rights assesses these types of cases, mostly revolving around (mass) surveillance activities, it finds itself stuck between the human rights framework on the one hand and the desire to evaluate surveillance practices by states on the other. Interestingly, the Court chooses to deal with these cases under Article 8 ECHR, but in order to do so, it is forced to go beyond the fundamental pillars of the human rights framework.},
	keywords = {Big data, conventionality, Grondrechten, Human rights, individual harm, mass surveillance, Privacy, societal interest},
}

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Onvoldoende waarborgen in het kader van national veiligheid external link

van Eijk, N. & Dommering, E.

2015

Abstract

In Nederland is tot dusver in het politieke debat over het noodzakelijke onafhankelijke toezicht op de inlichtingen en veiligheidsdiensten het Europese recht genegeerd of verkeerd uitgelegd. Met het Europese recht bedoelen wij zowel het EU Handvest als het Europees Verdrag voor de Rechten van de Mens. Dat is op grond van meerdere rechterlijke uitspraken niet langer mogelijk.

Links

http://njb.nl/highlights/onvoldoende-waarborgen-in-het-kader-van-nationale.18644.lynkx

Mensenrechten

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Back to Black: justice.cn external link

Tsoutsanis, A.

Journal of Intellectual Property Law & Practice, num: 10, pp: 725., 2015

Abstract

This short - peer reviewed - article touches on innovation in China in the field of smart phones, recent legislative reform in China for fostering intellectual property and combating counterfeit and trade mark grabbing. It also touches on human rights in China, the different approach in which the West advances its economic v human rights agenda and the selective way Silicon Valley industry participates in grass roots debate on civil liberties. The article also touches on the 'right to seek counsel' as one of the fundamental rights, which many arrested lawyers in China were deprived of during the July 2015 arrests.

Links

http://ssrn.com/abstract=2667516

bad faith, China, counterfeit, Fundamental rights, Human rights, innovation, Intellectual property, national security law, Patent law, Trademark law

RIS

TY  - JOUR
AU  - Tsoutsanis, A.
PY  - 1015
DA  - 2015-10-15
T1  - Back to Black: justice.cn
JO  - Journal of Intellectual Property Law &amp; Practice
NV  - 10
SP  - 725.
UR  - http://ssrn.com/abstract=2667516
AB  - This short - peer reviewed - article touches on innovation in China in the field of smart phones, recent legislative reform in China for fostering intellectual property and combating counterfeit and trade mark grabbing. It also touches on human rights in China, the different approach in which the West advances its economic v human rights agenda and the selective way Silicon Valley industry participates in grass roots debate on civil liberties. The article also touches on the \'right to seek counsel\' as one of the fundamental rights, which many arrested lawyers in China were deprived of during the July 2015 arrests.
K1  - bad faith
K1  - China
K1  - counterfeit
K1  - Fundamental rights
K1  - Human rights
K1  - innovation
K1  - Intellectual property
K1  - national security law
K1  - Patent law
K1  - Trademark law
ER  -

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Article{nokey,
	title = {Back to Black: justice.cn},
	author = {Tsoutsanis, A.},
	year = {1015},
	date = {2015-10-15},
	journal = {Journal of Intellectual Property Law &amp; Practice},
	number = {10},
	pages = {725.},
	abstract = {This short - peer reviewed - article touches on innovation in China in the field of smart phones, recent legislative reform in China for fostering intellectual property and combating counterfeit and trade mark grabbing. It also touches on human rights in China, the different approach in which the West advances its economic v human rights agenda and the selective way Silicon Valley industry participates in grass roots debate on civil liberties. The article also touches on the \'right to seek counsel\' as one of the fundamental rights, which many arrested lawyers in China were deprived of during the July 2015 arrests.},
	keywords = {bad faith, China, counterfeit, Fundamental rights, Human rights, innovation, Intellectual property, national security law, Patent law, Trademark law},
}

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