Edinburgh Law School Legal Studies Research Paper Series - October 2019

The latest in the Legal Studies Research Paper Series (Vol. 7, No. 16: Oct 23, 2019) from Edinburgh Law School is now available.

View the full Edinburgh Law School Legal Studies Research Paper Series on SSRN

Papers include:

"Digital Platforms and the Rise of Global Regulation of Hate Speech"
Edinburgh School of Law Research Paper No. 2019/29
Paolo Cavaliere, Edinburgh Law School

Abstract: The EU Code of Conduct on hate speech requires online platforms to set standards to regulate the blocking or removal of undesirable content. The standards chosen can be analysed for four variables: the scope of protection, the form of speech, the nature of harm and the likelihood of harm. Comparing the platforms’ terms of use against existing legal standards for hate speech reveals that the scope of speech that may be removed increases significantly under the Code’s mechanism. Therefore, it is legitimate to consider the platforms as substantive regulators of speech. However, the Code is only the latest example in a global trend of platforms’ activities affecting both the substantive regulation of speech and its governance. Meanwhile, states’ authority to set standards of acceptable speech wanes.

"Just Transitions for Workers: When Climate Change Met Labour Justice"
Edinburgh School of Law Research Paper No. 2019/30
Navraj Singh Ghaleigh, Edinburgh Law School

Abstract: This paper commences a conversation between labour law and social democratic thought, and environmental and climate law. It does so tentatively given that these are bodies of law, practice, and scholarship which have traditionally had limited contact. Part 1 of this chapter details a track record of suspicion between the two, ranging from indifference to outright hostility. It is argued however that this is an unproductive stance as there are shared interests and mutual gains to be had from a more engaged relationship. This is especially true when we consider the relationship between social democracy and climate change, and particularly the changes to labour markets, policy, and law which will be wrought by a meaningful response to climate challenge. It could equally be argued that the physical and social devastation which will follow from a non-meaningful response to the climate challenge will also radically reform labour markets, but that is outwith the scope of this paper. Part 2 introduces the concepts of Just Transitions, and Just Transitions for Workers (JTW) as an aspect of the response to climate change. As a concept JTW draws on a larger literature of Just Transitions, but finds its narrower, labour law focus in instruments including the Paris Agreement (2015) and various International Labour Organisation instruments. The central idea of JTW is that the necessary transition to a low-carbon economy requires a radical reorganisation of the means of production and distribution and that this entails significant transitional challenges for workers, communities and industries. Although still nascent as a policy concept, JTW has already had some significant impact on national and sub-national planning for climate action. Part 3 identifies the legal landscapes in which JTW may find purchase. They range across different legal levels, from public international law to domestic, and take in a variety of legal tools. As such it maps the emerging regulatory frameworks of labour law pertinent to climate change, or of potential relevance to it, from bespoke ILO instruments such as the Silesia Declaration (2018) to broader discussion of collective bargaining, active labour market policies and ‘flexicurity’.

"Heterodox Markets and ‘Market Distortions’ in the Global Trading System"
Edinburgh School of Law Research Paper No. 2019/31
Journal of International Economic Law, Forthcoming
Andrew Lang, Edinburgh Law School

Abstract: An important context for contemporary trade frictions is the emergence, since the 1990s, of a wide range of new forms of market capitalism, of which China’s hybrid market economy is the most significant. Institutional diversity of this kind is a source of strength and dynamism for the global trading system, but it is also the cause of very serious friction. The GATT/WTO system has dealt with this problem before, but the existing settlement regarding the legitimate boundaries of institutional diversity is under pressure, and needs to be revisited. One concept which has been incorporated into WTO trade defences law (and elsewhere) to help draw these boundaries is the concept of the ‘market distortion’. The concept can be a useful one, but it has so far been interpreted and applied with an inadequate appreciation of its serious conceptual and practical difficulties. The potential result is a system of trade defences targeted in a discriminatory and even punitive manner against heterodox institutional forms, in ways which may excessively dis-incentivise institutional experimentation. In response, this paper argues for an approach to the interpretation and application of this concept which proceeds from an understanding of the institutionally embedded character of markets. This does not take the form of a readily available ‘solution’, but rather a messy and evolving set of legal techniques which, in the best case, can form the legal basis of a practical and justifiable approach to the tensions caused by institutional diversity. A toolkit of legal techniques of this kind clearly cannot take the place of a more foundational political settlement of some sort, but it is a necessary accompaniment to it, if we are to preserve the aspiration towards a genuinely non-discriminatory and rules-based global economic order.

"To What Extent Does the EU General Data Protection Regulation (GDPR) Apply to Citizen Scientist-led Health Research with Mobile Devices?"
Edinburgh School of Law Research Paper No. 2019/32
Journal of Law, Medicine & Ethics, Forthcoming
Edward Dove, Edinburgh Law School
Jiahong Chen, University of Nottingham

Abstract: In this article, we consider the possible application of the European General Data Protection Regulation (GDPR) to “citizen scientist”-led health research with mobile devices. We argue that the GDPR likely does cover this activity, depending on the specific context and the territorial scope. Remaining open questions that result from our analysis lead us to call for a lex specialis that would provide greater clarity and certainty regarding the processing of health data for research purposes, including by these non-traditional researchers.

"Defence Against Dark Artefacts: An Analysis of the Assumptions Underpinning Smart Home Cybersecurity Standards"
Edinburgh School of Law Research Paper No. 2019/33
Stanislaw Piasecki, University of Nottingham
Lachlan Urquhart, Edinburgh Law School
Derek Mcauley, University of Nottingham

Abstract: As part of the EPSRC Defence Against Dark Artefacts (DADA) project, this paper analyses the assumptions underpinning a range of smart home cybersecurity standards. We use case studies (such as the Mirai Botnet affair) and the criminological concept of ‘routine activity theory’ to situate our analysis. Our study shows that current cybersecurity standards mainly assume smart home environments are underpinned by cloud architectures, which is a shortcoming. This paper argues that edge computing approaches, such as those typified by the Databox system, are emerging and challenge the cloud focused assumptions of these standards. In edge computing, data is stored at the edge of the network, locally on the device, which can have advantages for security, privacy and legal compliance, over cloud-based approaches. As a consequence, standards should start to reflect the increased interest in this trend to make them more aspirational and show other data architectures are possible that can benefit designers and citizens. We hope that our paper may influence researchers, policy makers and IoT stakeholders to work towards the adoption of edge computing models, to better manage external cyber-criminality threats in smart homes. We also briefly discuss that standards currently do not account for the complex nature of everyday life in the home. In addition to technical aspects, the social and interactional complexities of the home mean internal threats can emerge too.