Barcelona 1/32
14 January 2014
Barcelona 1/32
14 January 2014
Legal aspects of Communication
Richard Bretton
Supervisors: Dr. J. Gottsmann & Dr. R. Christie
richard.bretton@
Barcelona 2/32
14 January 2014
The many roles of Law
Creating:
•
Criminal offences enforceable by the State, regulatory
authorities &, sometimes, individuals
•
Obligations (Duties of Care) for Duty holders
•
Rights for Beneficiaries (those owed a duty of care)
•
Standards of Care owed by Duty holders to
Beneficiaries
•
Sanctions for breaches – punishments & compensation
•
Tribunals for Criminal law trials & Civil law cases
Barcelona 2/32
14 January 2014
1948 Universal Declaration of Human Rights (UNDHR)
• First international instrument to detail the rights & freedoms of
individuals
• Contains 30 Articles covering:
• The Integrity of the individual
• Life, private life etc.
• Political & Civil rights
• Freedom of thought, expression, religion, association etc.
• Economic rights
• Right to employment, education, social security etc.
Barcelona 2/32
14 January 2014
1948 UNDHR reflected in over 60 international treaties including:
• 1950 European Convention on Human Rights
Barcelona 2/32
14 January 2014
European Convention of Human Rights
Article 2 Right to Life
• Everyone's right to life shall be protected by law
Article 8 Right to respect for private & family life
• Everyone has the right to respect for his private & family life, his
home & his correspondence
Article 10 Freedom of expression
• Everyone has the right to freedom of expression. This right shall
include freedom…to receive and impart information…
Barcelona 2/32
14 January 2014
European Convention of Human Rights Cases
Guerra v Italy (1998)
Chemical factory – Inflammable gas & other emissions – By decree,
local inhabitants entitled to information but it was not given
Oneryildiz v Turkey (2005)
Slum by rubbish tip – Not compliant with safety regulations – Risks
but no remedial action taken – Methane explosion – Deaths &
destruction of dwellings
Barcelona 2/32
14 January 2014
European Convention of Human Rights Cases
Budayeva v Russia (2008)
Town protected from Natural mudslides by a mud collector & dam
– Both damaged in August 1499 & funds requested for repairs –
No remediation – Mudslides in July 2000 – 8 killed and homes
destroyed
Kolyadenko v Russia (2012)
Natural flash flood – Deliberate release of water from dam without
warning – Damage to flats & belongings
9
Barcelona 2/32
14 January 2014
States have a positive duty to take appropriate steps to safeguard the
lives of Citizens
• Legislative & administrative framework designed to provide
effective deterrence against threats to the right to life
• Before the event, regulatory measures
• to identify hazards, assess and control their risks
• to have a supervisory system to encourage those
responsible to adequate safety steps
• to establish coordination & cooperation between
administrative authorities
• to set in place an emergency warning system
• to inform citizens of the risks
Barcelona 2/32
14 January 2014
States have a positive duty to take appropriate steps to safeguard the
lives of Citizens
• After the event, when lives have been lost
• A prompt, diligent, independent & impartial official
investigation to ascertain:
– What happened and any shortcomings
– The State officials & authorities involved
This enquiry may lead to & assist criminal prosecutions and/or
claims for compensation
Governance 22/32
14 January 2013
L'Aquila, Italy criminal prosecution
6 scientists & 1 government official
convicted & sentenced to 6 years imprisonment
Convictions were condemned by most scientific organisations
Highlighted a number of Risk governance challenges
Governance 23/32
14 January 2013
Exposure
Hazard
Unmitigated
Risk
Vulnerability
Governance 24/32
14 January 2013
Allegation
• Hazard assessment was inadequate
Hazard
Exposure
• Lack of analysis of seismic hazards
Temporal
Spatial
Physical
parameters
When, how long?
Where from/to?
Intensity?
• Failure
to consider some indicators that
Unmitigated
Risk
could
define the probability of the
occurrence of an earthquake
• Under-estimation of "multiple indicators
and
the correlation between these
Vulnerability
indicators"
"…carried out in a
superficial…approximate…generic…
& totally ineffective way" Judge
Governance 25/32
14 January 2013
Exposure
"The culpable conduct of
the defendants resulted
in an unambiguously
reassuring effect" Judge
" filter for the selection of
information … and the
forms & means of
communication" Judge
Allegation
Communication
Unmitigated between the Major Risk
Risk (CGR) and the public not as
Committee
planned & as required by law
It wasVulnerability
direct and not via the Civil Protection
Department (DPC) – a filter imposed by law
The direct communication…amplified the
Contextual message
effectiveness of the
reassuring
Social & Economic fragility +
of resilience or capacity
to cope
& recover
producingLack
devastating
effects
on the
precautionary habitsSecond
traditionally
order effectsfollowed
by the victimsNon-hazard
(29 outdependent
of 309)
Governance 26/32
14 January 2013
Vulnerability
Allegation
The Defendants' argument that risk
reduction includes "reducing the
vulnerability of existing structures …is
totally unfounded
Physical
Physical susceptibility
First order effects
Hazard dependent
"This argument is obvious and pointless...because it provides an indication that
in practice is not feasible…
The Italian municipalities [obligation] to strengthen existing buildings &
improve their ability to withstand earthquakes, [is] such a huge financial
resource that it is effectively unavailable …it is not seriously feasible to reduce
seismic risk by improving building standards" Judge
Barcelona 2/32
14 January 2014
•
•
•
Garcés v Chile (2013)
Mario Segundo Ovando Garcés, a resident of Santa Clara,
Talcahuano
27 February 2010, in the wake of 8.8 magnitude
earthquake, he heard the Regional Governor dispel the
risk of a tsunami on a local radio station and decided not
to evacuate his home
20 minutes later a tsunami killed Mario & 300+ other
people
Barcelona 2/32
14 January 2014
•
•
•
Garcés v Chile (2013)
Chilean Navy runs the Hydrographic & Oceanographic Service
(SHOA)
SHOA admitted after the tsunami that it :
•
had made errors; &
•
given unclear information to government officials who
issued an alert, withdrew it, only to reissue it after the event!
Supreme Court of Chile:
•
held the State responsible for Mario's death; &
•
awarded his dependants over US$100,000 compensation
Barcelona 2/32
14 January 2014
•
•
•
•
Lessons from Recent cases
Good C is a critical risk mitigation option
Good C is expected
Post facto scrutiny will cover C’s:
• Form
• Content
• Route
• Timing
Bad C can to lead duty holders (individuals & other entities)
being:
• prosecuted in criminal courts (L'Aquila)
• ordered to pay compensation in civil courts (Garcés)
• ordered to give proper redress in HRC's (Budayeva)
Barcelona 2/32
14 January 2014
Lessons from Risk Governance discourses
• Traditional (technocratic) model of top-down, linear, one-way
communication is narrow, outdated, inflexible & does not
encourage participation
• New iterative models advocate, as being at core of & integral to
governance at all phases:
• Analytic-deliberative processes
• Deliberation can frame & interpret Analysis (new
information); Analysis informs (new insights, questions &
problem formulation)
• Communication– all stakeholders
Barcelona 2/32
14 January 2014
Lessons from Risk Governance discourses
• Rationales of participation must be revisited
• Normative – Consent of the governed
• Substantive – Scientific analysis is enriched by the insights of
outsiders
• Instrumental – Clearing up/identifying misunderstandings and
creating trust & credibility
Barcelona 2/32
14 January 2014
Lessons from Risk Governance discourses
• Ladder of participation* - a continuum of increasing intensity of
participation
• Exploitation (one way collection of information with no
participation)
• Information sharing (two-way communication after the results)
• Consultation (on topics and issues)
• Consultation (on results and interim findings)
• Collaboration (in decision making)
• Transformation (community participation in research)
* McCall & Peters-Guarin (2012)
Barcelona 2/32
14 January 2014
Lessons from Risk Governance discourses
NRC 1993 refers to 4 forms of communication
• Information
• One-way enlightenment of the target and this implies that
the target can grasp, realise and comprehend the meaning
of the information
• Documentation
• Provides transparency when the public cannot or have not
been involved in the index risk process but need or want to
know the reasoning behind a process decision. Grasp and
understanding on the part of the target is secondary.
Barcelona 2/32
14 January 2014
Lessons from Risk Governance discourses
• Two-way communication or mutual dialogue
• To achieve two-way learning through an exchange of
arguments, experiences, impressions and judgements
• Mutual decision-making and involvement
• To ensure that the concerns, interests and values of the target
stakeholders are represented in the decision making process,
taken up appropriately and integrated within it.
Barcelona 2/32
14 January 2014
Lessons from Risk Governance discourses
Deliberation is critical – it should lead to decisions that are more
informed, rational, inclusive, democratic, credible and legitimate
It affects the acceptance of RC by:
• Involving consensual & adversarial processes
• Encouraging conferring, exchanging views considering evidence,
negotiating & persuading etc.
• Clarifying consensus & disagreement
• Increasing mutual understanding
• Reducing mistrust
Barcelona 2/32
14 January 2014
Lessons from Risk Governance discourses
Whole process of deliberation/participation/communication
• Purposeful with carefully planned design
• Transparent, coherent, rational, credible, fair, flexible, iterative,
resourced
• Roles allocated
• Design choices of:
• Methods (Ladder of participation)
• Who
• How (selection of representatives)
• When
• Benefits (better inclusion & selection in decision making) v Burden
(delay, inefficiency & cost)
Barcelona 2/32
14 January 2014
Lessons from Risk Governance discourses
For each interaction, what is its designed objective? What does a
Win look like for all stakeholders? What they want, not just what
they need!
• Enlightenment – Getting the message across
• Building up confidence, trust, and credibility in risk
management
• Persuasion - Inducing risk reduction through communication
• Resolving conflict and providing conditions for co-operative
decision-making
Barcelona 2/32
14 January 2014
We can
make many
cosmetic &
other
changes to
it but …
Barcelona 2/32
14 January 2014
Is it fit for
purpose in
2014?
Barcelona 2/32
14 January 2014
Should we
try a new
model in the
near future?
Barcelona 2/32
14 January 2014
If yes, what features
should we look for
and why?
Barcelona 3/32
14 January 2014
Current risk governance models
• Based on 1483 USA National Research
Council Report (the Red Book Model)
• Linear, Sequential, Not-iterative, NonDeliberative
• Starts with Hazard Assessment (value-free)
• Proceeds to Risk Assessment (contextrich)
• Proceeds to Risk Management
• Communication mostly one-way from
scientists to risk managers and interested &
affected parties
Barcelona 2/20
January 2014
Black Box
A device, system or object in respect of which we know the inputs and
outputs but we do not know (or do not need to know) the internal
process or workings (Latour 1487)
Barcelona 3/20
January 2014
Societal risks (primary)
Institutional risks (secondary)
Barcelona 4/20
January 2014
Hazard Assessment
Monitoring & other
INPUTS
Hazard assessment
OUTPUTS
I think we should be
more explicit here in
step two where it says
"THEN A MIRACLE
OCCURS")
Barcelona 5/20
January 2014
If we opened the Black Box TODAY, what historic roles and
practices would it contain? Hazard Assessment Extreme Case
Hazards
Objective Absolute Truths (with no or little
subjective content) capable of characterisation
Hazards Uncertainties
Epistemic, Aleatory, Limited acknowledgement
of Limitations, No clear Assumptions
Barcelona 6/20
January 2014
Experts - Role
"Detached observer"
Experts – Output
(Impact)
"Good Hazard Characterisation" for use by
separate Risk managers
Barcelona 6/20
January 2014
Experts – Output
values
Independent, Purely Scientific, Appropriate,
Precise, Adequate, Socially & Politically
Neutral, Unbiased, Objective, Accurate,
Truthful, Correct, Trusted, Respected
Experts Appearance
Superior, Powerful, Controlling, Arrogant,
Contemptuous, Distant, Secretive, Uncaring,
Optimistic about their Values
Barcelona 7/20
January 2014
Experts - Process
Top-Down, Distant & Separate from Sequential
Risk Assessment
Unaccountable - Not Recorded, Transparent,
Open, Accessible, Democratic, Auditable
Experts – External
scrutiny
Direct by peer review, Occasional by public &
media
None by legal & regulatory authorities
(exception Human Rights cases, L'Aquila trial,
Garcés v Chile)
Barcelona 7/20
January 2014
Experts Governance
No self-regulation? No agreed professional
standards?
Experts –
Behaviour
Societal risks MORE important than
Institutional risks - Little evidence yet of Blamerelated behaviours
Barcelona 8/20
January 2014
Risk managers - Appoint good experts & accept their expert Output
Role
Public Appearance
Inferior, Unscientific, Inappropriate,
Unsophisticated, Cynical, Wrong
Communication Powerful Truth telling/educating weak/ignorant Risk
managers & Public
Social Science end-of-pipe bolt-on to assist
"education"
Barcelona 8/20
January 2014
Barcelona 9/20
January 2014
Possible drivers for change
Changing legal
expectations of
governance
National Governance laws
L'Aquila, Italy; Garcés v Chile
International Human Rights
Oneryldz v Turkey 2005
Budayeva v Russia 2008
Kolyadenko v Russia 2012
Barcelona 9/20
January 2014
Changing general
expectations of
governance
Trend towards more open &
transparent government with goals of :
• Openness & Transparency
• Involvement
• Proportionality & Consistency
• Evidence
• Responsibility & Accountability
National Freedom of Information laws
(supported by International Human
Rights conventions & case law Claude
Reyes et al. v Chile 2006)
Barcelona 9/20
January 2014
Changing general
expectations of
governance
In democratic societies, more
"deliberative & inclusive" processes
have been suggested
Deliberation advocated:
• as an alternative or an addition to
purely analytical procedures of both
assessing & managing risk
• to help improve accountability &
transparency
Barcelona 9/20
January 2014
Changing general Deliberation in risk governance:
expectations of
• Who – Various combinations of scientific &
governance
technical specialists, risk managers, interested
& affected parties
• Why – To increase understanding & to arrive
at substantive decisions
• What - Roles, subjects, methods, analytical
results
• How – Discuss, ponder, exchange observations
& views, reflect upon information/judgements,
& persuade about matters of mutual interest
• Form – Formal/Informal negotiating,
mediation, debating, consulting, commenting
Barcelona 9/20
January 2014
Changing status & role
of scientists
In many countries, less respect for:
• Hierarchical authority
• Social institutions
• Scientific communities
• Science – Knowns less complete, More unknowns
BUT ALSO…
More risk anxiety
Higher expectations of governance
based on perception of better science
Barcelona 9/20
January 2014
Changing status & role
of scientists
Emerging discourse about the
continued suitability of traditional role
of earth scientists as "detached
observers" limited to providing contextfree (value-free) hazard assessments
Should they lose their pretensions to be
"innocent & apolitical" & become
"participant-observers or activists"?
Barcelona 9/20
January 2014
Growing tensions in
practice
L'Aquila trial, Italy
• Responses from 35+ organisations
US observatory practices may offend US
legal framework (Fearnley 2013)
Mismatch between
knowledge/experience/competence
of hazard assessors & public risk managers
Poor communication & mismatch of
expectations…or growing signs of "blamerelated" behaviour!
Barcelona 9/20
January 2014
Growing appreciation
of the role of social &
other sciences
In future, a multi-disciplinary approach
will be important with knowledge input
from:
• Economics
• Politics
• Sociology
• Geography
• Psychology
• Ethics
• Law
• History
• Anthropology
• Archaeology
Barcelona 9/20
January 2014
Growing appreciation of In future, a multi-disciplinary approach
the role of social &
will be important with roles for experts in:
other sciences
• Weather
• Signal processing & data analysis
• Agriculture
• Civil & Structural engineering
• Human & Animal health
• Telecommunications
• Public communication
• Internet & Social media
• Cross border & cross hazard
management
Barcelona 9/20
January 2014
Growing appreciation of In future, social science input will be seen
the role of social &
as not just…
other sciences
an end-of-line bolt-on to provide a better
way to get the agreed message across…
but integral to the whole process
contributing to the production & transfer
of knowledge and the making of risk
decisions
Barcelona 9/20
January 2014
Widening reach of
governance
In the future, risk governance practices
may reflect
a growing understanding of :
• Secondary & Tertiary risks
• Cross-border risks
• Global risks
or an
• Holistic (coupling) approach to multiple
hazards (volcanos + earthquakes +
floods + tsunamis + climate change)
Barcelona 2/32
14 January 2014
Should we
try a new
model in the
near future?
Yes
Barcelona 2/32
14 January 2014
The traditional 1893 model (linear/sequential,
narrow):
• Fails to:
•
identify & answer the Q's that users see as
relevant – a failure of integration
•
reflect important perspectives & concerns
• Restricts participation
Risk Characterisation (RC) - a summary of scientific
information for the use of a decision maker
Barcelona 2/32
14 January 2014
RC's are not decision-driven activities
They fail because they provide scientific
information:
• in a way that leads to unwise decisions; and/or
• that is not useful to decision makers
Barcelona 2/32
14 January 2014
The differences in the new model
• Who is involved
• What information is summarised
• How information is summarised
Barcelona 2/32
14 January 2014
RC is seen as:
• Broader process
• Interaction of 2 equally important complimentary approaches
to gaining knowledge, forming understandings of it & reaching
agreement among people
Analysis & Deliberation (A&D)
• Decision-driven activity directed toward:
• informing choices; and
• solving problems
• Not only the end of the analytical process
but an important shaper of it
The tail that wags the whole dog!
Barcelona 2/32
14 January 2014
RC requires:
• Broader understanding of consequences to interested &
affected people (IAP)
• Input from and participation by full & diverse spectrum of IAP,
decision makers, specialists, etc.
• A & D process that is early-starting, explicit, flexible, mutual &
recursive (analysis
deliberation) & purposeful
Governance 13/32
14 January 2013
VALUES & FACT (KNOWLEDGE) INTERTWINED AT INTERFACE
FACT
K
N
O
W
L
E
D
G
E
VALUES
M
A
N
A
G
E
M
E
N
T
D
E
C
I
S
I
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M
A
K
I
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G
Pre-Appraisal
Management
Communication
Appraisal
G
E
N
E
R
A
T
I
O
N
&
Evaluation/Characterisation
VALUES & FACT (KNOWLEDGE) INTERTWINED AT INTERFACE
C
O
L
L
E
C
T
I
O
N
Governance 13/32
14 January 2013
Governance 14/32
14 January 2013
Governance 15/32
14 January 2013
Governance 16/32
14 January 2013