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The background in Wright v Ver [2020] EWCA Civ 672 is the mysterious history of Bitcoin and its creator, ‘Satoashi Nakamoto’. “Satoshi Nakamoto” is the pseudonym used by the person, or persons, who developed Bitcoin. On 31 October 2008 an academic paper was published under the name of Satoshi Nakamoto titled “Bitcoin: A peer to peer electronic cash system”. The academic paper described the manner in which the electronic cash system operated. Dr Craig Wright, claimant and appellant, is a national of Australia who now lives in Surrey. He has lived in the UK since December 2015 after emigrating from Australia. He also became a citizen of Antigua and Barbuda in 2017. He is a computer scientist with a particular interest in cryptocurrencies, including Bitcoin. Dr Wright says that he is Satoshi Nakamoto.

Roger Ver, defendant and respondent, is a bitcoin investor and commentator on bitcoin and other cryptocurrencies. Mr Ver was born in California, and raised in Silicon Valley. He moved to Japan in 2005. In 2014 he renounced his US citizenship and became a citizen of St Kitts & Nevis, although he continues to live in Japan. Mr Ver does not accept that Dr Wright is Satoshi Nakamoto.

The judgment does not address whether Dr Wright is Satoshi Nakamoto.

Dr Wright claims that he was libelled by Mr Ver in a YouTube Video posted on the Bitcoin.com YouTube channel on about 15 April 2019, a tweet containing the YouTube Video posted on Mr Ver’s Twitter Account on 3 May 2019, and a reply on Mr Ver’s Twitter Account posted on 3 May 2019 some 8 minutes after the tweet from Mr Ver. The defamatory meaning of these publications is said to be that Dr Wright “had fraudulently claimed to be Satoshi Nakamoto, that is to say the person, or one of the group of people who developed Bitcoin”.

Never more (data produced were broken down over periods) than 7 of the total YouTube views were in the UK. 7% of Mr Ver’s Twitter followers are in the UK. By judgment dated 31 July 2019 Mr Justice Nicklin found that England and Wales was not clearly the most appropriate place in which to bring the libel claim in this action and made a declaration that the Court had no jurisdiction to hear the claim.

The Court of Appeal, Dingemans LJ leading, agreed. Brussels Ia is not engaged. The jurisdictional test is section 9 of the Defamation Act 2013 – I previously discussed it in Sadik v Sadik: ‘A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.’

At 56 Dingemans notes that after Brexit, the Act’s reach will increase.

The first instance judge had argued inter alia that the evidence showed that Dr Wright was putting down roots in the UK and that would increase the reputational interests that Dr Wright had in this jurisdiction but that could not displace the global reputation that he enjoyed.

Dr Wright’s counsel submitted that the judge had set Dr Wright an impossible task by requiring him to adduce evidence of actual harm to his reputation in each candidate jurisdiction, and concluding that in the absence of such evidence Dr Wright could not satisfy the jurisdictional test. Further it was submitted that the judge had wrongly failed to carry out a comparative assessment as to whether each candidate jurisdiction was appropriate for the claim, and therefore failed to carry out the task mandated by s9.

Relevant factors for jurisdiction are discussed at 61 ff. Evidence will have to be shown of all the places in which the relevant statement has been published, as well as the number of times it has there been published. Targeting the publication at an English audience clearly will be an issue. Further elements include the availability of fair judicial processes in the other jurisdictions in which publication occurred. The available remedies from the Courts of the other jurisdictions may be relevant, as may be the costs of pursuing proceedings in each possible jurisdiction. Other factors that might impact on access to justice, for example language barriers, can be relevant. The location of likely witnesses is another feature that may be relevant. This list of factors is not exhaustive.

In a mercifully succinct manner, Dingemans J reviews all the elements and decides the test has not been met here.

A good primer for the 2013 Act.

Geert.

On 10–11 October 2019, the Albert-Ludwig-University of Freiburg (Germany) hosted the final conference of the German branch in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC2BE). Funded by the Justice Program (2014-2020) of the European Commission, the project aimed to assess the working in practice of the “second generation” of EU Regulations on procedural law for cross-border cases, i.e. the European Enforcement Order, Order for Payment, Small Claims and the Account Preservation Order Regulations (see our earlier post here). As a result, an open-access database of CJEU and national case law has been created which is available here. The presentations given at this conference have now been published in the second issue of the 2020 volume of the Zeitschrift für Vergleichende Rechtswissenschaft (German Journal of Comparative Law), Germany’s oldest continuously published review of comparative and PIL legal issues. The abstracts of the articles read as follows:

Informierte Entscheidungen in der grenzüberschreitenden Forderungsdurchsetzung – Vorstellung und Ergebnisse eines internationalen Forschungsprojekts [Informed Choices in Cross-Border Enforcement – Presentation and Results of an International Research Project]

Jan von Hein, University of Freiburg (Germany) – ZVglRWiss 119 (2020) 123–142

An efficient cross-border enforcement is more important than ever in light of the increasing economic integration of the EU. In order to achieve this aim, creditors may freely choose between enforcing a claim under Brussels Ibis or by means of the 2nd generation Regulations. Thus, weighing the pros and cons of choosing between one of the various options has become more difficult. This article presents the main findings of the EU-funded study „Informed Choices in Cross-Border Enforcement – IC2BE“, which is based on an extensive evaluation of case law and interviews with practitioners from eight Member States.

Der Anwendungsbereich der EU-Verordnungen zur grenzüberschreitenden Forderungsdurchsetzung [The scope of the EU Regulations on Cross-Border Enforcement of Claims]

Michael Stürner, University of Konstanz (Germany) – ZVglRWiss 119 (2020) 143–166

As part of the judicial cooperation in civil matters, the EU has issued a number of regulations on cross-border enforcement of debts. So far, this harmonization brings about piecemeal solutions with a certain lack of coherence. While those Regulations all apply in civil and commercial matters, they differ in their scope of application depending on the individual goal pursued by the act. The paper analyses those differences with a view to the material and geographical scope of application and discusses possible steps towards a reform, such as the abolition of the Enforcement Order Regulation or the consolidation of the various legal acts in a horizontal instrument (“Regulation Brussels 0”).

Die Sicherung von Forderungen im europäischen Zivilprozessrecht [Interim measures to secure monetary claims in European Civil Procedure]

Christian Heinze, University of Hanover (Germany) – ZVglRWiss 119 (2020) 167–196

Interim measures to secure monetary claims are addressed in several instruments of European civil procedure law, ranging from jurisdiction and recognition of foreign judgments, over special rules for cross-border proceedings and into sectoral procedural law for intellectual property disputes. The following article provides an overview of the relevant provisions and develops proposals on how a more coherent regulation at European level could be achieved.

Der Beitrag der Gerichtsorganisation zur Effizienz der grenzüberschreitenden Forderungsdurchsetzung [The Contribution of National Judicial Organization to the Efficiency of the International Recovery of Money Claims]

Christoph Althammer, University of Regensburg (Germany) – ZVglRWiss 119 (2020) 197–219

Measures taken by the national judicial organization have so far played only a minor role in improving cross-border enforcement of claims and diverge considerably in the European Member States. This is where the competence of the European legislature conferred by Art. 81 TFEU ends, so that harmonization efforts that are autonomous for the Union are difficult to implement. So far, the topic has been of practical importance in connection with the concentration of jurisdiction in central courts and the transfer of judicial matters to other judicial officers. However, the ECJ has recently made it clear in a different technical context that it wants to shape the national judicial organization more “European” in the future.

Der Beitrag der modernen Informationstechnologie zur Effizienz der grenzüberschreitenden Forderungsdurchsetzung [The Contribution of Information Technology to the Efficiency of the International Recovery of Money Claims]

Florian Eichel, University of Berne (Switzerland) – ZVglRWiss 119 (2020) 220–236

The article outlines how digitization and digitalization may contribute to make cross-border judicial recovery of money claims more efficient. It also considers the proposals for reform of the European Service and the European Evidence Regulations.

Anerkennungs- und Vollstreckungsversagungsgründe im Europäischen Zivilprozessrecht [Grounds for Refusing Recognition and Enforcement of Foreign Judgments in European Civil Procedural Law]

Haimo Schack, University of Kiel (Germany) – ZVglRWiss 119 (2020) 237–253

Even after the abolition of exequatur proceedings in art. 39 Brussels Ibis Regulation the grounds for non-recognition in art. 45 have been kept intact, albeit only after a separate motion by the debtor. Many other EU regulations, however, have significantly restrained the control by the enforcement State. The concurring and different provisions ask too much of the practitioners and invite abuse. The constitutionally mandated protection of the debtor in the enforcement State must not be sacrificed on the altar of an absolutely free movement of judicial decisions. The Regulation (EC) No. 805/2004 creating a European Enforcement Order for uncontested claims is outdated and should be scrapped.

Schnittstellen und Wechselwirkungen zwischen dem europäischen Zivilprozessrecht und dem nationalen Vollstreckungsrecht [Interfaces and Interactions between European and National Enforcement Law]

Caroline Meller-Hannich, University of Halle (Germany) – ZVglRWiss 119 (2020) 254–275

There are various ways of transferring a title into the enforcement system of foreign European Union member states, depending on the applicable EU-Regulation. This leads to an unclear legal situation that is to be solved by either the consolidation of the regulations of the second generation or by drafting one unitary system allowing for the freedom of enforcement title movement within the scope of all regulations. The German national executive and implementing law also needs to be revisited. The abolition of the exequatur in the Brussels Ia Regulation has resulted in unanswered questions concerning the enforcement procedure that must be clarified by jurisdiction. This applies in particular to the interpretation and adaptation of the title, the possible enforcement measures and the differentiation between the requirements of enforceability and the conditions for the enforcement procedure. This article will highlight these unanswered questions and suggest potential solutions.

Christopher Marsden (University of Sussex) has posted Transnational Internet Law on SSRN.

The greatest, and certainly to a Westphalian nation-state-centered universe most revolutionary, challenge for regulation is the increasing co-operation between national, regional and international networks of regulators, to regulate the Internet. Reidenberg coined the term ‘lex informatica’ to explain its transnational legal nature, based on Berman and Kaufman’s analysis of mediaeval lex mercatoria, rather than Jessup’s transnational law. In Part 2, I briefly consider the technical standards that permit Inter-networking and thus the Internet. Part 3 examines how standards – including commercial and legal standards – have created a transnational lex informatica. In Parts 4-5, I focus on two phenomena of the transnational Internet law evolution. The first is governance by contract for all commercial transactions, even those that are ostensibly free of monetary value, in which the contractors are trading private information for advertising revenue. The second is the ‘open Internet’, laws protecting some aspects of network neutrality.

The paper is forthcoming in Peer Zumbansen (ed.), Oxford Handbook of Transnational Law (OUP 2020). It can be downloaded here.

The American Association of Private International Law (ASADIP) has postponed its annual conference to a later date in 2021, given the current pandemic. The 2021 conference is entitled “Private International Law and Modern Technologies” and will be held on 4-5 November 2021 in Washington DC (USA). The venues of the conference will be Georgetown University and the Organization of American States (OAS). Blockchain technology and its interrelation with PIL features prominently in the general topics to be discussed. For more information, click here.

As regards recent activities, ASADIP has proudly announced the translation into Spanish of the article of Hans van Loon, former Secretary General of the HCCH, entitled “The Global Horizon of Private International Law: Inaugural Lecture” delivered during the Hague Academy’s Private International Law Session of 2015  (published in Recueil des cours Vol. 380, Pages 9-108, apparently only available in book form). The Spanish translation of Hans van Loon’s article is “El horizonte global del Derecho internacional privado” and is fully available here.

Thank you Matthias Lehmann for flagging X v Yelp , held 14 January 2020 at the Bundesgerichthof (German federal court) and to Jef Ausloos for drawing our attention to X and Avrotros v Facebook BV and Facebook Ireland ltd held 15 May 2020. An English summary of that case is here. Note that the Dutch case is one in interlocutory proceedings. Both concern the application of Article 7(2) Brussels IA at the jurisdictional level, and Rome II at the applicable law level, with respect to reputational damage.

In the German Yelp case, a German gym had complained that Yelp’s review algorithm had created a distorted picture of its business. Jurisdiction was established under Article 7(2) Brussels Ia per CJEU Bolagsupplysningen: centre of interests in Germany.  As to applicable law, the pickle is A1(20(g) Rome II which excludes from its scope of application,  “non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation”.

Under residual German PIL, claimant has a choice between lex locus damni or lex locus delicti commissi. Matthias points to the difficulty:  if companies have ‘personality rights’ within the meaning of Rome II (Bolagsupplysningen clearly suggests they do; but that is a jurisdictional case) then the issue ough to be held exempt from Rome II. Except, a big chunk of unfair trading practices consists of thrashing a competitor’s reputation – and A6 Rome II has a specific lex causae for unfair trading practices.

The German court does not address the issue directly for it held that claimant had made an implicit choice for lex locus damni – German law: the same result as Rome II would have had.

In the Dutch case, the Court likewise holds jurisdiction on the basis of centre of interests,  and then squarely applies A4 Rome II’s genral lex locus damni rule (the action was based against Facebook, arguing that FB was not taking enough measures to block fake/fraudulent bitcoin ads on its platform).

On the choice of court suggestion of Facebook, the court holds that current dispute is not of a contractual nature and that FB’s contractual choice of court and law does not extend to same; it leaves undecided whether the celebrity at issue can be considered a ‘consumer’ for jurisdictional purposes (their FB use I imagine potentially having developed into, or even started as professional use: see the dynamic nature per CJEU C-498/16 Schrems). There must be more argument in there.

Interesting cases, with both courts cutting corners.

Geert.

Court establishes jurisdiction on the basis of A7(2) BIa per Bolagsupplysningen
Then however squarely applies Rome II to what it calls 'reputational damage' – not discussing A1(2)(g) personality rights exception
Compare DE decision reported @eapilorg here https://t.co/0i1OyrK0fM https://t.co/ggBOH1pgMQ

— Geert Van Calster (@GAVClaw) May 28, 2020

The author of this post is Nadia Rusinova, Lecturer in International/European Private Law at The Hague University of Applied Sciences. This is the sixth in a series of posts aimed to explore the impact of the coronavirus crisis on the phenomena of mobility and exchange that form the constituent elements of private international law, and to discuss the responses that private international law rules provide to the challenges posed by the crisis itself (see the previous contributions by Giovanni Chiapponi, Matthias Lehmann, Tomaso Ferando, Caterina Benini and Aygun Mammadzada). The EAPIL blog welcomes further contributions on such topics, either in the form of comments to the published posts or in the form of guest posts. Those interested in proposing a guest post for publication are encouraged to contact the blog’s editorial team at blog@eapil.org.

Despite the obvious need for extraordinary measures during the pandemic, the restrictions we face as a response to the threat posed by the COVID-19 engage a number of rights, protected under the ECHR (hereinafter, the Convention). Individuals are entitled to fundamental rights protection even – and especially – in case of an emergency. In this sense, we already ask ourselves: are the adopted measures proportionate and targeted, are they required by the exigencies of the situation, are they not inconsistent with other obligations under international law? Do we need new approaches to respond to this unprecedented situation?

The importance of private international law for family issues in an era of globalization is immense and the topic acquires particular significance due to the increasing mobility and internationalization of the child and of the family. The private international law aspects of international child and family law in the context of international child abduction, intercountry adoption, cross-border surrogacy, cross-border relocation, etc. are frequently dealt with in many cross-border cases and these rapid developments must result in the development of uniform guidelines.

Some of the most important are found in the recently published COVID-19 Toolkit of the Hague Conference on Private International Law, also announced in this blog.

With international borders closed and containment measures in place, cross-border movement of people and goods is subject to unprecedented restrictions. In many jurisdictions, children and families remain stranded. Access to government services remains limited. Legal procedures have been delayed or suspended. Without doubt the future judgments and decisions of European Court of Human Rights (hereinafter, the Court) in this context will have an impact on the main issues of private international law, including the recognition and enforcement of foreign judgments.

This post focuses on the potential impact of the COVID-19 measures on the assessment of Article 8 violations in its family life aspect. As this is a complex question, this post explores an issue of how the State responses can be seen as an interference in the family life and whether the States ensured adequate regard for Article 8 rights in the context of the pandemic. In particular, concrete example of how domestic courts apply the imposed measures in handling remote family law proceedings is discussed, and the compliance of these approaches with the requirements of the Convention is analyzed.

In the present abnormal circumstances, the fundamental principles of substantive law remain unchanged. Therefore, the procedural aspect of Article 8 is in the center of this post as closely linked to the rights and interests protected by Article 6 of the Convention.

The legal aspects of a pandemic of this magnitude is still terra incognita for the domestic courts and understandably, for the Court as well. The only judgment so far, which concerns the impact of influenza quarantine seen as an interference in the family life related to a parent-child contact is Kuimov v Russia (2009).

In this case foster homes’ management refused the father to exercise his rights of access to his child on the ground that an influenza quarantine had been introduced, however the applicant could speak to the child on the telephone during this time. After the quarantine in the foster home was lifted, the father could resume his face-to-face meetings with his child.

In its assessment the Court found that the restrictions on the father’s access to the child were imposed with the “legitimate aim of protecting child’s health and rights”. Moreover, the Court accepted the Governments’ explanation that the access to the foster home was restricted due to a quarantine, which did not last an unreasonably long time – around 7 weeks. In addition, the father was allowed to come and see the child through the glass window on a weekly basis. In the circumstances of the case and regard being had to the States’ margin of appreciation, the Court was of the view that there was no violation of Article 8 on account of the restrictions imposed by the authorities on the applicant’s access to the child, in respect of the period of the quarantine.

In response to the COVID-19 pandemic, already mid-March it became clear that measures should be taken, and taken fast, by the States in order to protect individual human rights. Further steps need to be taken in the next days, weeks and months, may be even years; we will experience the consequences for long time ahead. The impact of these measures will be widely felt, and some groups will be affected more than others. All in all, these measures entail the broadest mass restriction of liberties our generation have ever seen.

The rights protected by Article 8 of the Convention make no exception. On the contrary – family life and particularly parent-child relationships suffer to a high extent from the rollercoaster we found ourselves in. As a consequence, the domestic courts are called upon to assess, elaborate and reflect on this situation for years ahead. Naturally, this is the rationale behind the multiple derogations to Article 8. Therefore, even adequately taken in order to respond to the threat posed by COVID-19, these measures will have certain implications on the future assessment of Article 8 violations by the Court as well.

This would be completely new perspective when determining what would constitute a breach of Article 8 in the aforementioned context. The Corona crisis places also the question how is the vulnerability of the children needs to be regarded in the current pandemic. The Court will be asked to adjust to this new setting its child-specific human rights approach, developed with the years, taking into consideration three interrelated concepts: the inherent vulnerability of children, the best interests of the child and the circumscribed children’s autonomy which gradually increases with their evolving maturity (see, among others, M. and M. v Croatia, § 171).

The Court has found that the notion of “family life” under Article 8 of the Convention encompasses de facto “family” ties. The existence or non-existence of “family life” for the purposes of Article 8 is essentially a question of fact depending on the existence of close personal ties. The interferences in parent-child relationships could impact not only the “classical” parental responsibility disputes and child abductions, but foster care and adoption cases as well.

As to the derogations from obligations under the Convention, the Council of Europe acknowledges in the document titled Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis: A Toolkit for Member States that the measures taken by the States vary depending upon the specific situation in the States concerned.

The large margin of appreciation of States as regards the existence of emergency and of the required measures is unavoidable. As suggested by Kanstantsin Dzehtsiarou, the magnitude of this crisis will clearly translate into significant margin of appreciation allowed to the authorities. This in turn means that the Court will apply looser test of proportionality and if the measures go beyond what is necessary under this loose test of proportionality, then violations are possible.

Potential violations of Article 8 have already been voiced in domestic court proceedings over the last few weeks. The Court will likely be asked to deal with similar allegations in the future. It is of course uncertain how the Court will look at these allegations and whether the current crisis will affect the interpretation of the Convention. The Kuimov case, a quarantine with a duration of 7 weeks and a limited local impact can hardly compare to the current global pandemic. Thus, the roles and perspectives of different stakeholders in child law in the private international law sphere at international level (parents – mothers and fathers, judges, the children themselves, other relatives, etc.) need to be reconsidered to respond adequately to this new situation.

If we try to foresee how the future case-law will look, the first question is what can be considered as “interference” in the current situation. The primary purpose of Article 8 is to protect against arbitrary interferences with private and family life, home, and correspondence by a public authority (Libert v France, §§ 40-42). This obligation is of a negative kind, described by the Court as the essential object of Article 8 (Kroon and Others v the Netherlands, § 31). However, Contracting States also have positive obligations to ensure that Article 8 rights are respected including as between private parties (Evans v the United Kingdom [GC], § 75).

In this sense, interference in times of Corona, related to the right of family life under Article 8 are clearly present. Firstly, the application of the general, mainly procedural rules, adopted by the state’s authorities in emergency response to the COVID-19, and secondly, to give example of particular application of these responses – the various approaches taken by courts in determining how to deal remotely with the specific case in the context of the pandemic.

Shortly after the seriousness of the situation became clear, many States responded to the threat posed by the COVID-19 by setting the rule that decisions regarding parental responsibility still apply, with the caution that the exercise of parental rights and right of access has to be respected in the health context. Due to the pandemic, courts are mostly closed and, generally, the only applications that can be reviewed in family matters are international child abduction cases, urgent claims to obtain a restraining order in cases of domestic violence and, in some cases, provisional and protective measures. As to pending and future cases – for instance parental disputes that are not yet introduced to the court but still might be urgent, the hearings that were originally set during the “lockdown period” have generally been cancelled or postponed. Lodging new applications is possible, but they are not immediately entertained.

As an example of the emergency measures adopted in some States, a state of health emergency was declared in France for two months from 24 March 2020 until 24 May 2020. During the lockdown, the courts have been dealing only with international child abduction cases and urgent applications for restraining order in cases of domestic violence. In Spain, precautionary measures under Article 158 of the Spanish Civil Code are available at this time only in urgent cases. Deadlines remain suspended until further notice, but since 15 April 2020, it has been permissible to file new applications with the court. In Italy the suspension has some exceptions, namely in the field of family law matters and protection of vulnerable people:
some Juvenile Tribunal procedures take place, like adoption procedures, foreign children without parents procedures, children brought away from their families, and situations of heavy risk for the child; surprisingly the same procedures in front of the Court of Appeal are not explicitly exempted from suspension.

In sum, Europe-wide, the message from the governments is that existing judgments on custody and access must be maintained, except where there is a concrete risk to the child’s health because of one of the parents’ behavior or living environment, which may give an opening to a modification. The difficulty arises from the fact that assessment of all particular claims is far not realistic having in mind the dimensions of the pandemic and the limited resources of the courts to react at this moment.

However, the courts soon recognized that regardless the danger of potential contamination, blanket policy that children should follow their usual visitation regimes is inconsistent with a comprehensive analysis of the best interests of the child. Therefore, the presumption is that existing parenting arrangements and schedules should continue, but subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to, including strict social distancing.

This approach reflected into recent court decisions, concerning the rights protected by Article 8. The health, safety and well-being of children and families remains the courts’ foremost consideration during COVID-19. In many cases, a parent’s personal risk factors (through employment or associations, for example) required controls with respect to their direct contact with a child. A parent’s lifestyle or behavior in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) raised sufficient concerns about parental judgment that direct parent-child contact would have to be reconsidered.

Turning to the question how these interferences are to be assessed in the light of the Convention, we should note that like most Convention rights, Article 8 is not absolute. Article 8(2) enumerates the legitimate aims which may justify proportionate interference by a public authority and potential infringement upon the rights protected in Article 8.

At least three of these justifications in the aforementioned context can well be related with the Corona crisis: public safety, protection of the health, and protection of the rights and freedoms of others. In the present situation the purpose of the measures is clearly to limit the spread of the Coronavirus by imposing certain limitations, and it logically seems to constitute “legitimate aim”.

The Court is however quite succinct when it comes to assessing the existence of a legitimate aim within the meaning of Article 8(2) (S.A.S. v France [GC], § 114). Following the rule established in its case-law, in future cases it will be for the respondent Governments to demonstrate that the interference pursued a legitimate aim (Mozer v the Republic of Moldova and Russia [GC], § 194). They will need to show that the particular measure in question aimed at protection of public safety, health, and rights and freedoms of others, depending upon the specific situation in the particular country.

Moreover, the States concerned will need to argue the proportionality of these measures, which might be the greater challenge in this situation. As a principle, the restriction impacting upon fundamental rights is unlikely to be proportionate if a less restrictive method could have been used to achieve this legitimate aim. The concept of proportionality in times of pandemic puts great burden on the authorities, requiring them to strike a fair balance between the interests of the individual whose rights are being impinged upon, and the interests of others or of the community. When life is at stake, like now, that is a particularly difficult balance to strike. In the context of the current pandemic the question is: could these measures be less restrictive?

At this point it is almost impossible to determine the proportionality of the emergency responses, because we must primarily assess the legislative choices underlying it. In addition, the national authorities were forced to make initial assessment in days (if not hours), with all the wide margin of appreciation left to them. In this regard, the Court should give leeway to the Contracting States and their policy makers (see this post by Vassilis P. Tzevelekos at Strasbourg Observers for a discussion on this point).

To summarize whether the potential infringement upon Article 8 is necessary in a democratic society in these pandemic times, we should follow the approach of the Court and balance the interests of the State concerned against the rights of the individual.

In leading Article 8 case, the Court clarified that “necessary” does not have the flexibility of expressions as “useful”, “reasonable”, or “desirable” (which would be nowadays very convenient), but implies the existence of a “pressing social need” for the interference in question (Dudgeon v. the United Kingdom, § 51). In this context, we should note that if such measures are in principle regarded and announced as a temporary, amended frequently according to the developments and are discontinued as soon as circumstances permit, in pandemic situation with this magnitude the pressing social need such measures to be imposed may be considered as present.

Speaking specifically of the discussed domestic courts’ approaches, of course, the substantial compliance with the Convention cannot be assessed altogether as it would always depend on the unique circumstances of the case. From procedural point of view, of particular interest is the question if the remote or hybrid hearing is sufficiently fair to meet the requirements of Articles 6 and 8 of the Convention. For instance, where lies the balance with the potential delay of the proceedings, in case the remote hearing is considered not suitable in the particular case?

Traditionally, in cases concerning a persons’ relationship with his or her child, there is a duty to exercise exceptional diligence, in view of the risk that the passage of time may result in a de facto determination of the matter (Ignaccolo-Zenide v Romania, § 102; Süß v Germany, § 100, Strömblad v Sweden, § 80) By its nature, a remote hearing, if appropriate at all, can replicate some but not all of the characteristics of a fully attended hearing. The parties should always stay alert to ensure that the dynamics and demands of the remote process do not impinge upon the fundamental principles. Remote hearings also place additional, and in some cases, considerable burdens on the participants – for instance, despite the right of translation is not absolute in the view if the Court, the language barrier appears as greater issue than in the traditional hearings, which in a cross-border context could be decisive.

How in this context to assess if the safeguards of Article 8 and Article 6 have been regarded? There is no straightforward answer, but in the present crisis the assumption must be that such a process is capable of being fair and meets the requirements of both provisions.

First of all, when assessing the suitability of the remote process, the courts must seek to ensure that it does not become overloaded by making distinction between those decisions that must be prioritized and those that must unfortunately wait until proper time is available. In some cases, even when it is much more difficult for the judge to watch the reactions of the parties to the evidence and although this is a general disadvantage of the remote hearing, it cannot be considered as major issue. Overall, the technology could be capable of providing a satisfactory hearing and the judge would understandably continue with remote proceeding, when the urgency is prioritized, even at the expense that at the end the usual basic procedural safeguards may have been in some way overlooked. Despite all this, it seems that this could not be assessed as a violation of Article 8 and 6 in cases when a child has been held in limbo for a long time.

Naturally, the suitability of the remote hearing will be raised (among the other issues) as a complaint before the Court. In its case per case analysis the Court should assess it not only as a separate procedural issue, but also in its interplay with the whole emergency situation.

Different factors should be taken into account, such as whether each of the parties could engage sufficiently with the professional evidence to an adequate degree for the process to be regarded as fair, and whether each of the parties have been able to follow and to understand the court hearing and to instruct their lawyers adequately in a timely manner. Checking that the demands and dynamics of the remote hearing did not encroach upon the central principles of a fair proceedings is crucial.

In these cases it would be good practice already now the domestic courts to discuss it in their arguments, relating to the requirements posed by the Convention (see for a good example the ruling of the Family Court of England and Wales in Re S (a child), § 13). Some pandemic-specific caveats should also be considered, for instance the fact that the highly pressured circumstances in which all the participants are working could lead to a chain reaction in the course of which fundamental legal and procedural principles come to be compromised despite the best intentions of a range of dedicated professionals.

As a conclusion, last months and weeks turned upside down the world as we know it. Governments tried to keep human rights and fundamental freedoms at the heart of measures to combat the pandemic, yet forced to take various emergency actions. At this point we can only guess whether these measures comply with the requirements of the Convention. Now, as the outbreak of COVID-19 slows down, it is probably a good moment to see if human rights are not forgotten in such uncertain times – there is still time to exercise more attentive monitoring of the level of protection and to make better choices.

Bail rural - Indivision