Contemporary

Distinguished philosopher Professor Sir Richard Sorabji re-enters the fray on free speech and social media

Distinguished philosopher Professor Sir Richard Sorabji re-entered the free speech debate in a lecture for the Foundation for Law, Justice and Society at Wolfson College last night by reprising his 2015 lecture on the theme with a renewed focus on fake news and social media.

The Social Cost of Pharmaceutical Mass Tort Litigation

Can the rights of individuals to make personal injury claims from pharmaceutical companies have adverse long-term consequences for society?

This is the question at the heart of this Policy Brief by Mary E Bartkus, who draws on her own experience of defending international claims amounting to billions of dollars, to argue that the cost of speculative claims can prevent the development of future life-saving medicines.

The policy brief examines the case of the pain reliever Vioxx® (rofecoxib), which was used by millions of patients worldwide before it was withdrawn from the market by Merck & Co., Inc. in ‘the interests of patients’ and ‘as the responsible course to take’, leading to more than 50,000 claims and class actions in the US and hundreds of jurisdictions across six continents.

Although Merck won most of the cases heard in the United States and prevailed in jurisdictions around the world, the company spent approximately $10 billion in withdrawing the medication and defending the litigation. Given that developing a new medication takes ten to fifteen years on average, and costs an average of $2.6 billion, the money that Merck & Co., Inc. spent to defend litigation could have funded the discovery and development of up to four or more new breakthrough life-saving and life-sustaining medications.

The Policy Brief questions the winners and losers in such a scenario, triggered when claimant lawyers capitalize on contingency fees, no cost-shifting, third party funding, relaxed standards of proof, and lay juries ill-equipped to decide complex scientific issues to fight such mass tort cases. The social cost is instructive as Europe considers a proposed Directive on collective actions that, even in its current form, would appear to permit diverse national class action regimes and procedures and invite forum shopping and costly litigation.

 

Governance of Public Opinion in the Age of Platforms: A Study of China

Jufang Wang, a former news editor in China and academic visitor at the BBC and Oxford University, offers insights into China’s news transformation and Internet governance in the platform age. She argues that the Chinese state has adjusted its Internet regulatory framework to target major digital media platforms such as WeChat, Weibo and Toutiao and requires them to take the “main responsibilites” in governing their sites. Such a new approach leads to what she calls “state governance through platforms”. 

Reducing Online Harms through a Differentiated Duty of Care: A Response to the Online Harms White Paper

LSE media expert and Government adviser Damian Tambini argues that social media companies have a 'duty of care' to protect users from harms caused by content published on their platforms, in response to the government's policy proposals in its White Paper on Online Harms.

He argues that the government is correct to propose a new institution, Ofweb, with the power to regulate online content in order to combat the significant harms caused by hate speech, foreign interference in democracy, images of self-harm, and terrorist content online. Yet he also warns of the potential dangers in the approach of the White Paper, which could inhibit freedom of expression if the harms are not clearly defined.

The policy brief proposes a detailed distinction between harmful but legal content and illegal content, and that illegal content should be met with sanctions including civil fines.

Tambini tackles the central legal and constitutional problem regarding a new code of conduct for legal harms such as political speech that interferes in the democratic process – so-called ‘fake news’. He finds that such censorship-like functions would not accord with the European Convention on Human Rights free speech test on proportionality, legality (parliamentary oversight), and necessity in a democratic society.

Therefore, Parliament must decide if new offences and categories of content require new laws and liabilities and set standards for blocking or filtering the most dangerous content. Given the dynamic nature of online harms, the process for introducing new laws to reflect harms should be more efficient and evidence-based, with advice from the new regulator. 

Journalists, academics, and government advisers debate how best to regulate online speech

How do we prevent harms caused by online content, and should the state, or internet giants like Facebook and Twitter be primarily responsible for regulating content published on their platforms?

This was the central question addressed by the Foundation for Law, Justice and Society at a workshop at Wolfson College last week to assess in what ways online speech is and should be governed in China and the West.

State Capture: What It Is and What It Means for the Constitutional Order

Katarína Šipulová recounts the capture of one arm of the state – the judiciary – in Slovakia and the Czech Republic, where post-Soviet democratization was largely influenced by the EU accession conditionality, and consequently paid little regard to the specific factors at play in the region, leading to vague rules and poor oversight of the judiciary, which was consequently captured from within.