14 January 2014 Barcelona 1/32. Legal aspects of Communication Richard Bretton Supervisors: Dr. J....
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14 January 2014 Barcelona 1/32. Legal aspects of Communication Richard Bretton Supervisors: Dr. J. Gottsmann & Dr. R. Christie richard.bretton@ 14 January
Legal aspects of Communication Richard Bretton Supervisors: Dr.
J. Gottsmann & Dr. R. Christie richard.bretton@ 14 January 2014
Barcelona 1/32
Slide 3
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
Slide 4
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.
Slide 5
14 January 2014 Barcelona 2/32 1948 UNDHR reflected in over 60
international treaties including: 1950 European Convention on Human
Rights
Slide 6
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
Slide 7
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
Slide 8
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
Slide 9
9
Slide 10
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
Slide 11
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
Slide 12
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
Slide 13
Unmitigated Risk Vulnerability Exposure Hazard Governance 23/32
14 January 2013
Slide 14
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
Slide 15
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
Slide 16
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
Slide 17
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
Slide 18
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
Slide 19
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)
Slide 20
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
Slide 21
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
Slide 22
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)
Slide 23
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.
Slide 24
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.
Slide 25
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
Slide 26
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)
Slide 27
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
Slide 28
14 January 2014 Barcelona 2/32 We can make many cosmetic &
other changes to it but
Slide 29
14 January 2014 Barcelona 2/32 Is it fit for purpose in
2014?
Slide 30
14 January 2014 Barcelona 2/32 Should we try a new model in the
near future?
Slide 31
14 January 2014 Barcelona 2/32 If yes, what features should we
look for and why?
Slide 32
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
Slide 33
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
Slide 34
Societal risks (primary) Institutional risks (secondary)
January 2014 Barcelona 3/20
Slide 35
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")
Slide 36
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
Slide 37
January 2014 Barcelona 6/20 Experts - Role"Detached observer"
Experts Output (Impact) "Good Hazard Characterisation" for use by
separate Risk managers
Slide 38
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
Slide 39
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)
Slide 40
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
Slide 41
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"
Slide 42
January 2014 Barcelona 8/20
Slide 43
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
Slide 44
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)
Slide 45
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
Slide 46
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
Slide 47
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
Slide 48
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"?
Slide 49
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!
Slide 50
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
Slide 51
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
Slide 52
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
Slide 53
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)
Slide 54
14 January 2014 Barcelona 2/32 Should we try a new model in the
near future? Yes
Slide 55
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
Slide 56
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
Slide 57
14 January 2014 Barcelona 2/32 The differences in the new model
Who is involved What information is summarised How information is
summarised
Slide 58
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!
Slide 59
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