Legitimate Authority in Forceful Resistance and the Consent Requirement

Individual victims of injustice may permissibly engage in a range of dissident activities to challenge unjust practices, policies, or institutions, so they could better enjoy their entitlements as a matter of justice. Resisters typically claim to engage in resistance for a larger group of victims, but the conditions leading to resistance tend to prevent them from obtaining a clear mandate from their “constituents.” In recent debates on legitimate authority to use defensive force, several theorists argue that such authority requires actual and informed consent of the victims on whose behalf resistance is undertaken. This article argues against that view. Two interpretations of the consent requirement are examined. In the first, consent of the people is measured by popular support for a resistance movement. In the second, consent is regarded as a kind of moral resource that can serve to justify defensive force. After refuting the arguments in support of the consent requirement, this article develops an alternative account of legitimate authority in forceful resistance which is not based on consent. It identifies a set of criteria for evaluating the insurgents’ claim to legitimate authority.

Neurointerventions and informed consent

It is widely believed that informed consent must be obtained from a patient for it to be morally permissible to administer to him/her a medical intervention. The same has been argued for the use of neurointerventions administered to criminal offenders. Arguments in favour of a consent requirement for neurointerventions can take two forms. First, according to absolutist views, neurointerventions should never be administered without an offender’s informed consent. However, I argue that these views are ultimately unpersuasive. The second, and more plausible, form defences of the consent requirement may take are more moderate in that they accept the use of neurointerventions in some (rare) cases, but not in (most) others. Based on common rationales for consent in medical interventions, I discuss whether four moderate approaches in defence of the informed consent requirement for medical interventions succeed in establishing that informed consent must be obtained from offenders prior to administering neurointerventions to them. I offer novel critical perspectives on approaches that have already received some attention in the literature (ie, bodily integrity and harm), and I critically discuss other approaches to defending informed consent in a medical context that have not yet received due attention (ie, self-ownership and trust). Ultimately, I argue that it is not obvious that any of these considerations support a requirement of offenders’ informed consent to neurointerventions. Lastly, however, I suggest that there is at least one overlooked fact as regards how courts currently employ mandatory neurointerventions, which may support such a requirement.

Dark and bright patterns in cookie consent requests

Dark patterns are (evil) design nudges that steer people’s behaviour through persuasive interface design. Increasingly found in cookie consent requests, they possibly undermine principles of EU privacy law. In two preregistered online experiments we investigated the effects of three common design nudges (default, aesthetic manipulation, obstruction) on users’ consent decisions and their perception of control over their personal data in these situations. In the first experiment (N = 228) we explored the effects of design nudges towards the privacy-unfriendly option (dark patterns). The experiment revealed that most participants agreed to all consent requests regardless of dark design nudges. Unexpectedly, despite generally low levels of perceived control, obstructing the privacy-friendly option led to more rather than less perceived control. In the second experiment (N = 255) we reversed the direction of the design nudges towards the privacy-friendly option, which we title “bright patterns”. This time the obstruction and default nudges swayed people effectively towards the privacy-friendly option, while the result regarding perceived control stayed the same compared to Experiment 1. Overall, our findings support the notion that the EU’s consent requirement for tracking cookies does not work as intended. Further, we give insights into why this might be the case and recommendations on how to address the issue.

Consequences of the Use of Personalization Algorithms in Shaping an Offer – A Private Law Perspective

Personalization mechanisms in consumer e-commerce allow for the adjustment of the time, form and manner of contact, the way of concluding the contract and the availability and content of the offer. Subsequently concluded agreements can be seen as a new phase of development of the consumer transaction model – secondary individualization replaces standardization. The possibility of concluding contracts on a massive scale is retained, but with added granularity and flexibility that mimic the individualisation of transactions. Special provisions for personalized contracts are missing on the EU level and within the Polish legal system.The starting point is an analysis of the reaction of the traditional private instruments of Polish law towards the personalization of offers – case law and doctrinal approach towards the concept of a standard contract and an individually negotiated one are examined. Next, the pre-contractual stage is investigated – the personalization process is explored from the perspective of unfair practices regulation, and the legal basis for the personalization process in the context of the GDPR is discussed. While Polish national law focuses on combating the undesired results of personalization, the EU initiatives aim at granting ex-ante protection. The mechanism in directive 2005/29/EC is being supplemented with an information protection mechanism (consent requirement). The limitations of this model are identified and some alternative solutions are proposed.

5. Incapacity I: Adults

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter examines cases when a patient is unable to give consent to medical treatment, and considers: the consent requirement under criminal law and civil law; the form that consent should take; and the principle of autonomy. It discusses how the law treats patients who lack capacity or whose capacity is in doubt. It offers detailed analysis of the Mental Capacity Act 2005 and recent Court of Protection decisions. It also covers cases involving the withdrawal of life-prolonging treatment from patients who lack capacity.

Health Research, Consent and the GDPR Exemption

This article analyses the balance which the GDPR strikes between two important social values: protecting personal health data and facilitating health research through the lens of the consent requirement and the research exemption. The article shows that the normative weight of the consent requirement differs depending on the context for the health research in question. This more substantive approach to consent is reflected in the research exemption which allows for a more nuanced balancing of interests. However, because the GDPR articulates the exemption at an abstract and principled level, in practice the balance is struck at Member State level. Thus, the GDPR increases difficulties for EU cross-border health projects and impedes the policy goal of creating a harmonised regulatory framework for health research. The article argues that in order to address this problem, the European Data Protection Board should provide specific guidance on the operation of consent in health research.

MEDICAL TREATMENT V SURGERY: WHERE DOES MEDICAL TREATMENT END AND SURGERY BEGIN IN TERMS OF SECTION 129 OF THE CHILDREN’S ACT?

It has been firmly established in South African law that informed consent prior to the commencement of any form of medical procedure is required by the patient, or proxy decision maker. This principle has been established in South African law by two cases, namely Stoffberg v Elliott (1923 CPD 148) and Castell v De Greeff (1994 (4) SA 408 (C)). If the necessary consent is not obtained, the doctor may, among others, incur liability for civil or criminal assault.Initially, consent to the medical treatment of minors was regulated by the Child Care Act (74 of 1983). In terms of section 39(4) of this Act, a minor who reached the age of 18 years was legally competent to consent to an operation while a minor over the age of 14 could independently consent to medical treatment. (This would include a termination of pregnancy, inclusive of an anaesthetic. See Van Oosten “Choice on Termination of Pregnancy Act: Some Comments” 1999 SALJ 67. A termination of pregnancy is performed in terms of the Choice on Termination of Pregnancy Act (92 of 1996) and not the Children’s Act (38 of 2005), therefore it will not be discussed in this note). Van Oosten also notes that neither the terms “medical treatment” nor “operation” are defined in the Child Care Act.The Child Care Act prescribed a cumbersome procedure that had to be followed if the parent or guardian of a child needed to consent to an operation or medical treatment and the responsible person could not be found, could not consent by reason of mental incapacity, refused to consent or was deceased. In such cases the medical practitioner had to report the matter to the Minister of Social Development who could then give proxy consent (s 39(1) of the Child Care Act). In the case of an emergency when an operation or treatment was necessary to save the life of a minor or prevent serious physical injury and a competent person could not be found to consent, the superintendent of the hospital could consent to the necessary procedure (s 39(2) of the Child Care Act). Concerns were raised that the process was cumbersome, led to delays and was therefore not in the interest of minors who need immediate access to medical treatment. As will be pointed out below, the terms “medical treatment” or “surgery” have also not been defined in the Children’s Act. This note therefore seeks to find a workable solution to address the issue of where medical treatment ends and surgery begins as this has an effect on the consent requirements for these procedures. Finally, recommendations will be made based on the research. To put it in context, the consent requirement in the Children’s Act will be discussed, followed by definitions of medical treatment and surgery as well as the way in which other jurisdictions treated the issue of medical treatment and surgery.

Coercion and the Neurocorrective Offer

According to what Douglas calls ‘the consent requirement’, neurocorrectives can only permissibly be provided with the valid consent of the offender who will undergo the intervention. Some of those who endorse the consent requirement have claimed that even though the requirement prohibits the imposition of mandatory neurocorrectives on criminal offenders, it may yet be permissible to offer offenders the opportunity to consent to undergoing such an intervention, in return for a reduction to their penal sentence. The author calls this the neurocorrective offer. The chapter considers the coercion-based objection to the neurocorrective offer, which claims that offenders cannot provide valid consent to undergoing a neurocorrective on the basis of this offer because it is inherently coercive. Having outlined early formulations of this argument, the author points out that there are in fact two different versions of this objection, which appeal to different understandings of the concepts of coercion, consent, and voluntariness.