14 january 2014 barcelona 1/32. legal aspects of communication richard bretton supervisors: dr. j....

14 January 2014 Barcelona 1/32

Legal aspects of Communication Richard Bretton Supervisors: Dr. J. Gottsmann & Dr. R. Christie richard.bretton@ 14 January 2014 Barcelona 1/32

14 January 2014 Barcelona 2/32 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

14 January 2014 Barcelona 2/32 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.

14 January 2014 Barcelona 2/32 1948 UNDHR reflected in over 60 international treaties including: 1950 European Convention on Human Rights

14 January 2014 Barcelona 2/32 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 freedomto receive and impart information

14 January 2014 Barcelona 2/32 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

14 January 2014 Barcelona 2/32 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

14 January 2014 Barcelona 2/32 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

14 January 2014 Barcelona 2/32 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

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 14 January 2013 Governance 22/32

Unmitigated Risk Vulnerability Exposure Hazard Governance 23/32 14 January 2013

Unmitigated Risk Vulnerability Exposure Hazard Allegation Hazard assessment was inadequate Lack of analysis of seismic hazards Failure to consider some indicators that could define the probability of the occurrence of an earthquake Under-estimation of "multiple indicators and the correlation between these indicators" "carried out in a superficialapproximategeneric & totally ineffective way" Judge Governance 24/32 Temporal Spatial Physical parameters When, how long? Where from/to? Intensity? 14 January 2013

Unmitigated Risk Vulnerability Exposure Contextual Social & Economic fragility + Lack of resilience or capacity to cope & recover Second order effects Non-hazard dependent Allegation Communication between the Major Risk Committee (CGR) and the public not as planned & as required by law It was direct and not via the Civil Protection Department (DPC) a filter imposed by law The direct communicationamplified the effectiveness of the reassuring message producing devastating effects on the precautionary habits traditionally followed by the victims (29 out of 309) "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 Governance 25/32 14 January 2013

Vulnerability Physical Physical susceptibility First order effects Hazard dependent Allegation The Defendants' argument that risk reduction includes "reducing the vulnerability of existing structures is totally unfounded "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 Governance 26/32 14 January 2013

14 January 2014 Barcelona 2/32 Garcs v Chile (2013) Mario Segundo Ovando Garcs, 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

14 January 2014 Barcelona 2/32 Garcs 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

14 January 2014 Barcelona 2/32 Lessons from Recent cases Good C is a critical risk mitigation option Good C is expected Post facto scrutiny will cover Cs: 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 (Garcs) ordered to give proper redress in HRC's (Budayeva)

14 January 2014 Barcelona 2/32 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

14 January 2014 Barcelona 2/32 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

14 January 2014 Barcelona 2/32 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)

14 January 2014 Barcelona 2/32 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.

14 January 2014 Barcelona 2/32 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.

14 January 2014 Barcelona 2/32 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

14 January 2014 Barcelona 2/32 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)

14 January 2014 Barcelona 2/32 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

14 January 2014 Barcelona 2/32 We can make many cosmetic & other changes to it but

14 January 2014 Barcelona 2/32 Is it fit for purpose in 2014?

14 January 2014 Barcelona 2/32 Should we try a new model in the near future?

14 January 2014 Barcelona 2/32 If yes, what features should we look for and why?

14 January 2014 Barcelona 3/32 Current risk governance models Based on 1483 USA National Research Council Report (the Red Book Model) Linear, Sequential, Not-iterative, Non- Deliberative Starts with Hazard Assessment (value-free) Proceeds to Risk Assessment (context- rich) Proceeds to Risk Management Communication mostly one-way from scientists to risk managers and interested & affected parties

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) January 2014 Barcelona 2/20

Societal risks (primary) Institutional risks (secondary) January 2014 Barcelona 3/20

January 2014 Barcelona 4/20 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")

If we opened the Black Box TODAY, what historic roles and practices would it contain? Hazard Assessment Extreme Case January 2014 Barcelona 5/20 HazardsObjective Absolute Truths (with no or little subjective content) capable of characterisation Hazards - Uncertainties Epistemic, Aleatory, Limited acknowledgement of Limitations, No clear Assumptions

January 2014 Barcelona 6/20 Experts - Role"Detached observer" Experts Output (Impact) "Good Hazard Characterisation" for use by separate Risk managers

January 2014 Barcelona 6/20 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

January 2014 Barcelona 7/20 Experts - ProcessTop-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, Garcs v Chile)

January 2014 Barcelona 7/20 Experts - Governance No self-regulation? No agreed professional standards? Experts Behaviour Societal risks MORE important than Institutional risks - Little evidence yet of Blame- related behaviours

January 2014 Barcelona 8/20 Risk managers - Role Appoint good experts & accept their expert Output Public - Appearance Inferior, Unscientific, Inappropriate, Unsophisticated, Cynical, Wrong CommunicationPowerful Truth telling/educating weak/ignorant Risk managers & Public Social Science end-of-pipe bolt-on to assist "education"

January 2014 Barcelona 8/20

Possible drivers for change January 2014 Barcelona 9/20 Changing legal expectations of governance National Governance laws L'Aquila, Italy; Garcs v Chile International Human Rights Oneryldz v Turkey 2005 Budayeva v Russia 2008 Kolyadenko v Russia 2012

January 2014 Barcelona 9/20 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)

January 2014 Barcelona 9/20 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

January 2014 Barcelona 9/20 Changing general expectations of governance Deliberation in risk governance: Who Various combinations of scientific & 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

January 2014 Barcelona 9/20 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

January 2014 Barcelona 9/20 Changing status & role of scientists Emerging discourse about the continued suitability of traditional role of earth scientists as "detached observers" limited to providing context- free (value-free) hazard assessments Should they lose their pretensions to be "innocent & apolitical" & become "participant-observers or activists"?

January 2014 Barcelona 9/20 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 expectationsor growing signs of "blame- related" behaviour!

January 2014 Barcelona 9/20 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

January 2014 Barcelona 9/20 Growing appreciation of the role of social & other sciences In future, a multi-disciplinary approach will be important with roles for experts in: Weather Signal processing & data analysis Agriculture Civil & Structural engineering Human & Animal health Telecommunications Public communication Internet & Social media Cross border & cross hazard management

January 2014 Barcelona 9/20 Growing appreciation of the role of social & other sciences In future, social science input will be seen as not just 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

January 2014 Barcelona 9/20 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)

14 January 2014 Barcelona 2/32 Should we try a new model in the near future? Yes

14 January 2014 Barcelona 2/32 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

14 January 2014 Barcelona 2/32 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

14 January 2014 Barcelona 2/32 The differences in the new model Who is involved What information is summarised How information is summarised

14 January 2014 Barcelona 2/32 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!

14 January 2014 Barcelona 2/32 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

14 January 2013 Governance 13/32

14 january 2014 barcelona 1/32. legal aspects of communication richard bretton supervisors: dr. j....

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human rights slide

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economic rights right

duty holders rights

private life

rights freedoms of individuals

individual life

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