Category Archives: Fundamental or Human Rights

‘Civil justice and the new government’

“By any measure the outcome of yesterday’s election was a significant point in the UK’s politics. The returning of the Conservative government with a chunky majority means, first and foremost, that the UK will leave the EU in a little over six weeks, on 31 January 2020. In advance of a new Queen’s Speech, likely […]

Montagnani and Trapova, ‘Copyright and Human Rights in the Ballroom: A Minuet between the US and the EU’

ABSTRACT Similar to the graceful forward, backward and sideways movements in a minuet, after a slow start, the dynamics between IP and human rights have intensified to the extent that human rights law is seen as IP’s new frontier. When balancing various interests at stake in both the US and the EU, copyright law engages […]

Christophe Geiger, ‘Reconceptualizing the Constitutional Dimension of Intellectual Property – An Update’

ABSTRACT This paper is an updated version of the chapter entitled ‘Reconceptualizing the Constitutional Dimension of Intellectual Property’ which appeared in the previous edition (3rd) of the volume edited by Paul Torremans entitled Intellectual Property and Human Rights. It draws on previous research published by the author on the ongoing ‘constitutionalization’ of intellectual property rights […]

Achas Burin, ‘The positive duty of prevention in the common law and the Convention’

ABSTRACT Twenty years after the Human Rights Act 1998 came into force, where are we in our understanding of the relationship between tort and human rights? This paper argues that we are not as far along in our understanding as we could be. The reason for that has been the methodology we used to understand […]

Nicholas Nugent, ‘Masters of Their Own Domains: Property Rights As a Bulwark Against DNS Censorship’

ABSTRACT It is increasingly becoming the practice of DNS intermediaries to seize domain names used by lawful websites for violation of acceptable use policies related to offensive content or ‘hate speech’. Proponents of Internet freedom have argued that companies providing foundational Internet infrastructure should not attempt to police content, no matter how deplorable, and that […]

‘Can an employee’s freedom of expression trump their confidentiality obligations? The ECtHR weighs in (in a case concerning an employee’s personal website)’

“By reading the very interesting EU Law Live Blog, The IPKat has discovered an intriguing decision (Herbay v Hungary, Appl No. 11608/15) that the European Court of Human Rights (ECtHR) issued just a few days ago on the thorny issue of whether an employee’s own confidentiality obligations trump their freedom of expression and information under […]

Niall O’Connor, ‘Whose Autonomy is it Anyway? Freedom of Contract, the Right to Work and the General Principles of EU Law’

ABSTRACT Just how significant is the freedom of contract found in Article 16 of the EU Charter of Fundamental Rights for the regulation of the employment relationship? For the first half of its existence, few could have foreseen that Article 16 would soon be at the centre of debates surrounding the place of business freedoms […]

Lucy Kenner, ‘Fundamental Rights and Private Litigants: The New Zealand Bill of Rights Act 1990 in Private Common Law Disputes’

ABSTRACT This paper addresses the effect of the New Zealand Bill of Rights Act 1990 (NZBORA) in disputes between private parties which arise under the common law. Because the NZBORA applies to the courts as the judicial branch of Government, this implies that it imposes obligations on the courts when deciding cases, including ones between […]

Vladislava Stoyanova, ‘Common law tort of negligence as a tool for deconstructing positive obligations under the European convention on human rights’

ABSTRACT This article examines how the common law tort of negligence can provide a helpful guidance for deconstructing and elucidating some of the disparate analytical issues that are subsumed under the umbrella of positive obligations under the European Convention on Human Rights (ECHR). Both frameworks, the common law and ECHR, aim to delimit the circumstances […]

Doug Rendleman, ‘The Defamation Injunction Meets the Prior Restraint Doctrine’

ABSTRACT This article maintains that, under defined circumstances, a judge should be able to grant an injunction that forbids the defendant’s proved defamation. It analyzes the common law of defamation, the constitutional prior restraint doctrine, the constitutional protection for defamation that stems from New York Times v Sullivan, and injunctions and their enforcement … (more) […]