Papers by Rebecca Moosavian
The Cambridge Law Journal, Oct 31, 2023
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Hart Publishing eBooks, 2023
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This article draws upon the Chilcot Report to undertake a Foucauldian-influenced critique of the ... more This article draws upon the Chilcot Report to undertake a Foucauldian-influenced critique of the processes surrounding the creation of the Attorney General’s (AG) Iraq war advice. It argues that four significant power/knowledge dynamics acted to construct the AG’s clear statement that military action was internationally lawful. First, Blair-era lapses in record-keeping and related ministerial disputes concerning the bureaucratic apparatus of writing acted to limit the available knowledge of Iraq-era events. Second, the Blairite practice of highly selective sharing and management of information within government acted to foster knowledge asymmetries, making challenge or resistance more difficult. Third, belatedly providing the AG with a highly partisan background knowledge ultimately informed his legal interpretation by tailoring the crucial informational context in which he drafted his advice. Fourth, the AG’s credibility and legal expertise were strategically traded upon to enhance...
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This article investigates UK judicial engagement with the war and related foreign affairs preroga... more This article investigates UK judicial engagement with the war and related foreign affairs prerogatives, specifically considering developments in judicial review since 2002. It outlines the comparative strengthening of judicial checks on high policy prerogatives during this period, but finds that such advances have had minimal impact in real terms; case outcomes remain unaltered and prerogatives in this area are still afforded special treatment by the judiciary. The specific aim of this article is to identify underlying reasons why, despite appearances, there has been no actual material departure from the traditional GCHQ position which ring-fenced such prerogatives as immune from judicial scrutiny. To this end it conducts a detailed analysis of caselaw, identifying and discussing two interrelated reasons. First, in war and foreign affairs matters the judiciary employ boundaries between law and non-law, specifically eliminating political or policy issues from their concern. However, ...
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International and Comparative Law Quarterly, 2019
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Journal of Media Law, 2014
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Public Law, Oct 1, 2012
This article investigates UK judicial engagement with the war and related foreign affairs preroga... more This article investigates UK judicial engagement with the war and related foreign affairs prerogatives, specifically considering developments in judicial review since 2002. It outlines the comparative strengthening of judicial checks on high policy prerogatives during this period, but finds that such advances have had minimal impact in real terms; case outcomes remain unaltered and prerogatives in this area are still afforded special treatment by the judiciary. The specific aim of this article is to identify underlying reasons why, despite appearances, there has been no actual material departure from the traditional GCHQ position which ring-fenced such prerogatives as immune from judicial scrutiny. To this end it conducts a detailed analysis of caselaw, identifying and discussing two interrelated reasons. First, in war and foreign affairs matters the judiciary employ boundaries between law and non-law, specifically eliminating political or policy issues from their concern. However, attempting to maintain the ‘internal purity’ of law involves judicial concessions in other respects; the way in which the courts apply boundaries is selective and inconsistent, ultimately acting to favour the government of the day. Second, knowledge or expertise is a key factor underlying judicial approaches in war, defence and foreign affairs. Executive views in this area have always enjoyed precedence in the courtroom and this is logically justified on the basis that government has superior expertise and exclusive access to information in this area. The precedence of executive views has continued in recent caselaw, undermining the appearance of strengthening judicial checks. The weight that courts afford government evidence in such areas is, for the most part, institutionally mandatory and it must therefore be concluded that the courts are incapable of effectively checking ministerial prerogative in war and related foreign affairs.
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Journal of Media Law, 2015
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The International Journal of Human Rights, 2014
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King's Law Journal, 2013
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In Article 8 ECHR privacy right jurisprudence, photographs are deemed distinct forms of informati... more In Article 8 ECHR privacy right jurisprudence, photographs are deemed distinct forms of information that are particularly intrusive nature. This article is concerned with explaining why this is so. Part 1 examines the notion of ‘intrusion’ itself. It argues that ‘intrusion’ functions as a legal metaphor and plays an important role in constructing a binary between an outer self presented to the world and a ‘spiritual’, emotional interior that privacy purports to protect from transgression. Part 2 argues that that this ‘spiritual intrusion’ metaphor is influential in the continental personality right that informs the ECtHR’s approach to Art 8 protection for photographed individuals. This leads to potentially stronger protection for image, including a basic Art 8 right to control one’s image. Yet there is a divergence of approach in the English courts, where personality theory has limited influence; here there is traditional scepticism towards an image right and photographic capture is...
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Since the enactment of the Human Rights Act 1998, breach of confidence has been rapidly reconfigu... more Since the enactment of the Human Rights Act 1998, breach of confidence has been rapidly reconfigured to become a key vehicle for the preservation of individual privacy in accordance with Article 8. This development has formed a significant countervailing force to the excesses of a powerful and increasingly intrusive tabloid media which seeks to profit from the exploitation of commercially valuable personal information. But the rapid evolution in breach of confidence has generated a range of concerns about the suitability of employing an equitable doctrine traditionally geared towards safeguarding commercial trade secrets to protect a fundamental human right. Commentators have questioned whether post-HRA caselaw has resulted in a distortion of the confidence action and a lack of coherence in the justifications underpinning this area This article considers recent caselaw and commentary in this area, paying specific attention to the way in which breach of confidence and Articles 8 & 10...
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This article examines the unintended consequences of injunctions granted in misuse of private inf... more This article examines the unintended consequences of injunctions granted in misuse of private information (MPI) disputes. The MPI action enables successful claimants to obtain injunctions, often anonymised, to prevent publication of a story (or parts of it) that infringe upon their Article 8 privacy rights. This article considers cases such as Giggs v News Group and PJS v News Group which highlight the challenges of MPI injunctions; they may draw additional attention to disputed material, a phenomenon that has been colloquially termed the ‘Streisand effect’. It affords specific attention to the phenomenon of ‘jigsaw identification’ which may result from MPI injunctions that only restrict the publication of specific parts of a dispute, such as the claimant’s identity. It proceeds to discuss three primary reasons for unintended consequences in some MPI cases, including psychological reactance, social countering and the possibilities afforded by new online technologies. The article con...
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In Article 8 ECHR privacy right jurisprudence, photographs are deemed distinct forms of informati... more In Article 8 ECHR privacy right jurisprudence, photographs are deemed distinct forms of information that are particularly intrusive in nature. This article is concerned with explaining why this is so. Part 1 examines the notion of ‘intrusion’ itself. It argues that ‘intrusion’ functions as a legal metaphor and plays an important role in constructing a binary between an outer self presented to the world and a ‘spiritual’, emotional interior that privacy purports to protect from transgression. Part 2 argues that this ‘spiritual intrusion’ metaphor is influential in the continental personality right that informs the ECtHR’s approach to Article 8 protection for photographed individuals. This leads to potentially stronger protection for image, including a basic Article 8 right to control one’s image. Yet there is a divergence of approach in the English courts, where personality theory has limited influence; here there is traditional scepticism towards an image right and photographic capt...
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Northern Ireland Legal Quarterly
The United Kingdom has considerable prowess in handling emergencies, not just in counterterrorism... more The United Kingdom has considerable prowess in handling emergencies, not just in counterterrorism but also in a wide range of other real or imagined disasters, including public health risks. Core legislation has been installed, including the all-encompassing Civil Contingencies Act (CCA) 2004 and the more specialist Public Health (Control of Disease) Act (PHA) 1984. Despite these finely honed models, the UK state regressed to panic mode when faced with the COVID-19 pandemic. Rather than turning to the laws already in place, Parliament fast-tracked the Coronavirus Act 2020, with scant debate of its shabbily drafted contents. In addition, the UK Government has relied heavily, with minimal scrutiny, on regulations under the PHA 1984. The article analyses the competing legal codes and how they have been deployed to deal with COVID-19. It then draws out the strengths and weaknesses of the choices in terms of the key themes of: the choice of sectoral versus general emergency legislation; ...
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Northern Ireland Legal Quarterly, 2018
In Article 8 ECHR privacy right jurisprudence, photographs are deemed distinct forms of informati... more In Article 8 ECHR privacy right jurisprudence, photographs are deemed distinct forms of information that are particularly intrusive nature. This article is concerned with explaining why this is so. Part 1 examines the notion of ‘intrusion’ itself. It argues that ‘intrusion’ functions as a legal metaphor and plays an important role in constructing a binary between an outer self presented to the world and a ‘spiritual’, emotional interior that privacy purports to protect from transgression. Part 2 argues that that this ‘spiritual intrusion’ metaphor is influential in the continental personality right that informs the ECtHR’s approach to Art 8 protection for photographed individuals. This leads to potentially stronger protection for image, including a basic Art 8 right to control one’s image. Yet there is a divergence of approach in the English courts, where personality theory has limited influence; here there is traditional scepticism towards an image right and photographic capture is largely neglected. Part 3 argues that photography becomes a relevant factor at publication stage, where courts agree that the distinctive features of the medium may cause or exacerbate intrusion. This is because photography creates a permanent, infinitely replicable ‘truthful’ record of the individual’s image that can be disseminated to the objectifying gaze of a mass audience. But the medium also leads viewers to overlook its inherent complexities and ambiguities. Ultimately, Article 8 jurisprudence, particularly in the ECtHR, occasionally adopts reasoning that contains echoes of the ‘photographs steal souls’ mythology.
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Communications Law, 2016
This article examines the unintended consequences of injunctions granted in misuse of private inf... more This article examines the unintended consequences of injunctions granted in misuse of private information (MPI) disputes. The MPI action enables successful claimants to obtain injunctions, often anonymised, to prevent publication of a story (or parts of it) that infringe upon their Article 8 privacy rights. This article considers cases such as Giggs v News Group and PJS v News Group which highlight the challenges of MPI injunctions; they may draw additional attention to disputed material, a phenomenon that has been colloquially termed the 'Streisand effect'. It affords specific attention to the phenomenon of 'jigsaw identification' which may result from MPI injunctions that only restrict the publication of specific parts of a dispute, such as the claimant's identity. It proceeds to discuss three primary reasons for unintended consequences in some MPI cases, including psychological reactance, social countering and the possibilities afforded by new online technologies. The article concludes with a close analysis of the recent Supreme Court decision in PJS where the judicial response was to modify the problem that MPI injunctions seek to address. Changing the purpose of such injunctions, and therefore the outcomes by which their efficacy is to be gauged, enables the courts to justify their continuation in the face of widespread publication of private information. But this reasoning process relies on newly constructed, tenuous distinctions between press/Internet dissemination and secrecy/intrusion elements of privacy, and it necessarily entails some sacrifice of the wider credibility of law. 2 Jigsaws and Curiosities: The Unintended Consequences in Misuse of Private Information Injunctions
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Journal of Media Law, 2015
This article undertakes analysis of misuse of private information (MPI) case law informed by deco... more This article undertakes analysis of misuse of private information (MPI) case law informed by deconstruction and wider literary and critical theory. It specifically considers the operation of the 'balance' metaphor in MPI case law: What rhetorical effects might it foster, and how? What insights can the balance metaphor in MPI case law reveal about the nature of legal discourse more generally? This article starts by providing an account of select theorists who explore the subtle but vital role that metaphor plays in non-literary texts. Though metaphors have traditionally been viewed as poetic or literary devices, deconstruction indicates that they often exert a hidden influence in the texts of other disciplines such as philosophy and law, with inevitable implications for claims based on truth, objectivity and reason. This account ultimately highlights the fundamental-but often overlooked-role of metaphor in legal discourse. Following this discussion, the article proceeds to investigate the key 'balance' metaphor in misuse of private information judgments. It identifies and analyses two distinct ways in which the balance metaphor subtly benefits and supports judicial reasoning in these judgments. First, it creates an impression of certainty by drawing on connotations of the quantifiable and calculable. Second, it fosters the moral appeal of a decision by alluding to notions of justice and equilibrium. In doing so, the balance metaphor marginalises the non-rational, inexpressible, even mysterious, aspects of judicial rights balancing. 2 " In Demonstration, in Councell, and all rigorous search of Truth, Judgement does all; … But for Metaphors, they are in this case utterly excluded. For seeing they openly professe deceipt; to admit them into Councell, or Reasoning, were manifest folly. " T Hobbes, Leviathan, Ch 8 (1651) " What then is truth? a mobile army of metaphors, metonyms, and anthromorphisms, in short, a sum of human relations which were poetically and rhetorically heightened, transferred, and adorned, and after long use seem solid, canonical, and binding to a nation. Truths are illusions about which it has been forgotten that they are illusions, worn-out metaphors without sensory impact, coins which have lost their image and now can be used only as metal, and no longer as coins. " F Nietzsche, 'On Truth and Lies in an Extra-Moral Sense' (1873)
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Papers by Rebecca Moosavian