Library of Congress Global Legal Monitor
United Kingdom: Supreme Court Rules on Widowed Parent’s Allowance for the Surviving Unmarried Partner
(Sept. 18, 2018) On August 30, 2018, the Supreme Court of the United Kingdom issued a ruling stating that “section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 [the Act] is incompatible with article 14 of the ECHR [European Convention on Human Rights], read with article 8, insofar as it precludes any entitlement to widowed parent’s allowance by a surviving unmarried partner of the deceased.” (In the Matter of an Application by Siobhan McLaughlin for Judicial Review (Northern Ireland)  UKSC 48, para. 45, UK Supreme Court website; Social Security Contributions and Benefits (Northern Ireland) Act 1992, UK legislation.gov website; European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, arts. 8 & 14, Nov. 4, 1950, ETS 5, European Court of Human Rights website.) The declaration places pressure on the government to amend or repeal the incompatible sections of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 in order to provide equal opportunity under the law for both previously married and unmarried people who have lost their partners to be able to access financial support.
Section 39A of the Act, as amended by the Civil Partnership Act 2004, states that an individual is entitled to a widowed parent’s allowance solely if his or her deceased spouse or civil partner meets several conditions. (Social Security Contributions and Benefits (Northern Ireland) Act 1992, § 39A, legislation.gov website; Civil Partnership Act, 2004, sched. 24, pt. 5, legislation.gov website.) The Act, however, makes no mention of those couples who had children and had been cohabiting at the time one of the partners died. Siobhan McLaughlin, the applicant in the case, had been living with John Adams, her partner and the father of her four children, for 23 years when he died on January 28, 2014. (Siobhan McLaughlin  UKSC 48, para. 2.) Adams met all of the requirements during his life for McLaughlin to be able to claim bereavement payments and Widowed Parent’s Allowance, bar one: Adams and McLaughlin had never married. (Id. para. 2.) Having been denied both payments by the Northern Ireland Department of Communities, McLaughlin applied for judicial review of the decision, claiming that the decision was incompatible with the ECHR. (Id. para. 3.)
Lady Hale, in writing the majority judgment, applied reasoning accepted by Lord Nicholls of Birkenhead and used by Lord Bingham in a previous case (M v. Secretary of State for Work and Pensions  2 AC 91, para. 17) to rule that Widowed Parent’s Allowance is one of the ways in which “the state evinces respect for children and the life of the family of which they are part” (Siobhan McLaughlin  UKSC 48, para. 19), so Widowed Parent’s Allowance falls within the ambit of article 8 of the ECHR. (Id. para. 22.) Furthermore, in analyzing whether the actions of the Northern Ireland Department for Communities infringed McLaughlin’s article 14 rights, Hale took a purposive approach to interpreting Widowed Parent’s Allowance:
Widowed parents’ allowance is only paid because the survivor is responsible for the care of children who were at the date of death the responsibility of one or both of them. Its purpose must be to benefit the children. The situation of the children is thus an essential part of the comparison. And that situation is the same whether or not the couple were married to one another. It makes no difference to the children. But had the couple been married, their treatment would be very different: their household would have significantly more to live on while their carer is in work.” (Id. para. 27.)
Consequently, Hale ruled that denying McLaughlin the Allowance because she was unmarried infringed her article 14 rights. (Id. para. 42.)
Hale did acknowledge that the government had a legitimate aim in denying McLaughlin the payments—“to promote the institutions of marriage and civil partnership by conferring eligibility to claim only on the spouse or civil partner of the person who made the contributions.” (Id. para. 36.) However this, on its own, was insufficient to justify the infringement, as denying McLaughlin the payments was “manifestly” not a proportionate means of achieving that legitimate aim. (Id. paras. 38 & 39.)
Prepared by Ben Hills, Law Library intern, under the supervision of Clare Feikert-Ahalt, Senior Foreign Law Specialist.
(Sept. 17, 2018) On July 11, 2018, the Italian Constitutional Court issued a decision on the constitutional legitimacy of article 58-quater of Law No. 354 of 1975 regarding prison benefits for persons sentenced to life imprisonment for certain crimes. (Decision No. 149 of July 11, 2018, Issued in a Constitutional Legitimacy Case by Incidental Procedure (the Decision), GAZZETTA UFFICIALE [OFFICIAL GAZETTE, G.U.] (July 18, 2018) (in Italian), G.U. website.)
Background of the Case
By a resolution passed on April 28, 2017, the Surveillance Tribunal of Venice requested that the Italian Constitutional Court rule on the issue of the constitutionality of article 58-quater, para. 4 of Law No. 354 of July 26, 1975, Provisions on Penitentiary Organization and on the Implementation of Private and Restrictive Measures on Freedom. (Legge 26 luglio 1975, n. 354, Norme sull’ordinamento penitenziario e sulla esecuzione delle misure privative e limitative della liberta’, G.U. No. 212, Aug. 9, 1975.) In its original version, this article (Legge 26 luglio 1975 n. 354, article 58-quater, para. 4, OP Italiano website) provided that persons convicted of kidnapping for purposes of terrorism or subversion and kidnapping for purposes of robbery or extortion who caused the death of the victim were not eligible for the penitentiary benefits (assignment to outside work, premium permits, and measures alternative to detention) set forth in article 4-bis of Law No. 354 of 1975 unless the convicted persons effectively served at least two-thirds of the sentence or at least 26 years if condemned to life imprisonment without parole. (CODICE PENALE [PENAL CODE], art. 289-bis & art. 630, Altalex website; Legge 26 luglio 1975, n. 354.)
The Court examined whether the challenged provision violated articles 3 and 27, para. 3 of the Italian Constitution. (COSTITUZIONE DELLA REPUBBLICA ITALIANA [CONSTITUTION OF THE ITALIAN REPUBLIC], Italian Senate website; Italy’s Constitution of 1947 with Amendments Through 2012, Comparative Constitutions Project website.) Article 3 establishes that all citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, or personal and social conditions. Article 27, para. 3 states that punishments may not be inhuman and must aim at reeducating the convicted.
Reasoning of the Court
The Court noted that the referring Venice court had received a request for the prison benefit of limited freedom from an inmate convicted of kidnapping for purposes of extortion that resulted in the death of the victim. (Decision, considerations of fact 2, para. 1.) The Venice court had also noted that the inmate had developed a critical appreciation of the seriousness of the crime he had committed that had led to an “exceptional commitment to university studies” and “invariably regular good conduct” within the penitentiary, where he performed beneficial work. (Id. considerations of fact 2, para. 2.) In addition, the Venice court had highlighted that the inmate was offered an employment contract for an outside job subject to a semifreedom prison benefit (id.) and ruled that article 4-bis of Law No. 354 of 1975 forbade the court from granting the benefit requested by the inmate. The court consequently asked the Constitutional Court to rule on the constitutionality of the legal provision in question. (Id. considerations of fact 2, paras. 3–4.)
The Constitutional Court held that article 27, para. 3 of the Constitution prevailed over article 4-bis of Law No. 354 of 1975, as the constitutional goal of the reeducational purpose of criminal punishments trumps the legislative purpose of crime prevention enshrined in article 4-bis of Law No. 354. (Id. considerations of fact 2.1, para. 1.)
It its reasoning, the Court also took into consideration the gravity of the crimes for which the inmate in the case under review was convicted. (Id. considerations of fact 2.1, para. 6.) The Court also mentioned that Law No. 354’s purpose was to fight organized crime, but that successive legislation favored the gradual reinsertion into society of convicted persons through the expanion of benefits for those who demonstrated their participation in rehabilitative work. (Id. considerations of law 2.1, para. 1.) The Court recalled that in 1991 the legislature reacted to the growing menace from organized mafia crime by imposing restrictions on convicted felons’ access to prison benefits, and that article 4-bis reflects such legislative intent. (Id. considerations of law 2.1, paras. 2–3.) However, the Court noted that successive legislative amendments to article 4-bis introduced the possibility for those convicted of certain serious crimes to receive prison benefits in exchange for collaboration with the judicial authorities. (Id. considerations of law 2.1, para. 5.) Nevertheless, this legislative trend to expand benefits to such persons excluded those benefits covered by the aforementioned article 58-quater. (Id. considerations of law 2.2, para. 1.) The Court mentioned that article 58-quater did not include the exception of collaboration with the judicial authorities for those convicted under articles 289-bis and 630 of the Penal Code. (Id. considerations of law 2.2, para. 4.)
The Court also reviewed other criminal legislation to determine if persons sentenced to life imprisonment enjoyed the prison benefits that article 4-bis of Law No. 354 of 1975 denied to those convicted under articles 289-bis and 630 of the Penal Code. (Id. considerations of law 3, para. 2.) The Court found that the majority of those sentenced to life imprisonment under other legislation are eligible for certain penitentiary benefits, including outside work after ten years of imprisonment; premium permits based on expiation of the penalty; semifreedom after twenty years of imprisonment; parole after 26 years of imprisonment; or conditional freedom in certain situations. (Id. considerations of law 3, para. 3.)
The Court considered that this disparity in treatment by the legislation runs counter to articles 3 and 27, para. 3 of the Constitution, due to their intrinsic unreasonableness relative to the constitutional goal of the necessary reeducational function of the sentence. (Id. considerations of law 4.)
The Court added that the automatic character of the temporal prohibition to access penitentiary benefits precludes the judge from evaluating individually the reeducational path followed by those sentenced to life imprisonment, as required by the Constitution and established by settled case law of the Constitutional Court. (Id. considerations of law 7, para. 2.) Moreover, such judicial function required by the Constitution is impeded by article 4-bis of Law No. 354 of 1975 when the respective judge has, on the basis of the merits of the case, already established that the convicted person no longer constitutes a danger to society. (Id. considerations of law 7, para. 4.)
Holding of the Court
In consequence, the Constitutional Court declared the unconstitutionality of the part of article 58-quarter, para. 4 of Law No. 354 of 1975 applying to persons sentenced to life imprisonment without parole for the crime established in article 630 of the Penal Code (kidnapping for the purposes of robbery or extortion resulting in the death of the kidnapped victim). (Id. holding 1.)
As a result of its first declaration, the Court also declared the unconstitutionality of the part of article 58-quarter, para. 4 of Law No. 354 of 1975 applying to persons sentenced to life imprisonment without parole for the crime established in article 289-bis of the Penal Code (kidnapping for the purposes of terrorism or subversion resulting in the death of the kidnapping victim). (Id. holding 2.)
Persons convicted for the crimes established in articles 289-bis and 630 of the Penal Code are therefore now eligible for the penitentiary benefits established in article 4-bis of Law No. 354 of 1975 (assignment to outside work, premium permits, and measures alternative to detention).
(Sept. 14, 2018) On June 27, 2018, the Supreme Court of the United Kingdom issued a declaration that “sections 1 and 3 of [the Civil Partnership Act 2004, (CPA)], to the extent that they preclude a different sex couple from entering into a civil partnership, are incompatible with article 14 of [the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)] taken in conjunction with article 8 of the Convention.” (Steinfeld and Keidan, R (on the Application of) v. Secretary of State for International Development (in Substitution for the Home Secretary and the Education Secretary)  UKSC 32, para. 62, BAILII website; CPA 2004, §§ 1 & 3, UK legislation.gov website; European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, arts. 8 & 14, Nov. 1950, ETS 5, European Court of Human Rights website.) The declaration places significant pressure on the government to amend or repeal the incompatible sections of the CPA 2004 in order to provide equal opportunity under the law for both same-sex and different-sex couples to become civil partners.
Prior to 2013, the only route for same-sex couples to have their relationship acknowledged before the law was by registering as civil partners in accordance with section 1 of the CPA. (CPA 2004, § 1.) The institution of marriage was reserved purely for heterosexual couples. After the passage of the Marriage (Same Sex Couples) Act 2013 (MSSCA), however, the ability to get legally married was extended to same-sex couples. (MSSCA 2013, legislation.gov website.) This, however, did not lead to the amendment or repeal of the CPA, as a result of which, same-sex couples were faced with a choice about whether they wanted to have their relationships legally recognized through marriage or civil partnership.
As pointed out by the plaintiffs in the recent case, the same choice does not exist for heterosexual couples. The CPA defines a civil partnership as “a relationship between two people of the same sex” (CPA 2004, § 1), meaning that a heterosexual couple must get married in order for their relationship to be legally recognized. The plaintiffs, however, did not wish to get married because of the “patriarchal nature” of the institution of marriage, but did want the legal protections that come from having one’s relationship formally recognized, such as property rights if one partner dies. (Cecilia Lei, U.K. Supreme Court Rules It’s Unfair to Offer Civil Unions Only to Same-Sex Couples, NATIONAL PUBLIC RADIO (June 27, 2018).)
Lord Kerr, in writing the judgment, noted that,
[w]hen Parliament enacted MSSCA it consciously decided not to abolish same sex civil partnerships or to extend them to different sex couples, even though, we were told, it was recognised at that time that this would bring about an inequality of treatment between same sex partners and those of different sexes and that this inequality was based on the difference of sexual orientation of the two groups. (Steinfeld and Keidan,  UKSC 32, para. 7.)
The government argued that it delayed deciding one way or the other—either abolishing or extending civil partnerships to all couples—because it wished “to wait for a time until further hard evidence was available to enable it to take a considered view as to what to do.” (Id. para. 33.) However, Kerr dismissed this approach as indicative of, “at best, an attitude of some insouciance.” (Id.) Kerr also went on to explain that he did not find that the government had a legitimate aim for infringing on the human rights of heterosexual couples because the legislative goal of extending the period for information gathering “cannot be characterised as a legitimate aim” (id. para. 42); there was a readily available, less intrusive method for achieving the required goal that the government could, and should, have used (id. para. 50); and finally, even if one allowed the government’s aim to be legitimate, a fair balance had not been struck between the rights of the discriminated and the interests of the community that the government claimed to represent (id. paras. 51–52).
Prepared by Ben Hills, Law Library intern, under the supervision of Clare Feikert-Ahalt, Senior Foreign Law Specialist.
(Sept. 13, 2018) The Basic Act on Countermeasures Against Gambling Addiction was enacted in Japan in July 2018. (Basic Act, Act No. 74 of 2018, KANPOU [OFFICIAL GAZETTE] Extra ed. No. 154 (July 13, 2018), National Printing Bureau website (in Japanese).) The Basic Act will become effective by mid-October 2018. (Id. Supp. Provisions art. 1.)
The Basic Act defined gambling addiction as a condition in which a person’s obsessive gambling hinders him or her from engaging in normal everyday life or having a normal social life. (Basic Act art. 2.) Under the Basic Act, the national government must establish the Basic Plan on Promotion of Countermeasures Against Gambling Addiction. (Id. art. 12.) Prefecture governments must establish their own plans for countermeasures against gambling addiction in line with the Basic Plan. (Id. art. 13.) Further, the national and local governments must adopt measures to educate people about gambling addiction in various settings, such as schools and work places (id. art. 14) and take steps to establish specialized medical institutions, mental health counseling, and legal counseling for gambling addicts in localities (id. arts. 16 & 17).
The enactment of the Basic Act corresponds to the resolution of the House of Councillors that was adopted when the House passed the Act on Promoting the Development of Specified Complex Tourist Facilities Areas in December 2016. (Integrated Resort Promotion Act, Act No. 115 of 2016, Ministry of Justice’s Japanese Law Translation website; Resolution Attached to the Bill of the Integrated Resort Promotion Act, Dec. 13, 2016, House of Councillors website.) The Resolution called for the enhancement of countermeasures against gambling addiction. The Integrated Resort Promotion Act had defined the term “complex tourist facilities” as “facilities integrating casino facilities, convention and conference facilities, recreation facilities, exhibition facilities, accommodation facilities and other facilities.” (Integrated Resort Promotion Act art. 2.) Establishing casinos is illegal in Japan unless specific legislation to allow them is enacted. (Ministry of Justice Criminal Affairs Bureau, Material Provided by Ministry of Justice for 8th Conference on Promotion of Development of Specified Complex Tourist Facilities Areas, Prime Minister of Japan and His Cabinet website (July 18, 2017) (in Japanese).) Thus, opponents of the Integrated Resort Promotion Act had labeled it the “Lifting the Ban on Casinos Act.” (Keep Fighting Against Gambling Halls, AKAHATA (Dec. 16, 2016) (in Japanese).)
(Sept. 12, 2018) In July 2018, the Cairo Misdemeanor Court found a Lebanese female tourist, Mona el-Mazbouh, guilty of deliberately spreading false rumors against Egypt that damage the country’s reputation. The court had initially sentenced the defendant to 11 years in prison before reducing the sentence later on the same day to eight years of imprisonment. (El-Sayed Gamal El-Din, Egypt’s Court Sentences Lebanese Tourist to 8 Years in Jail for Insulting Egyptians in Viral Video, AL-AHRAM (July 7, 2018).)
Facts of the Case
After posting a video clip on her Facebook page complaining about being sexually harassed in the streets of Egypt, Mazbouh was arrested at Cairo airport while leaving the country. In her clip, she called Egypt a lowly, dirty country; Egyptian men pimps; and women prostitutes. She alleged that taxi drivers and young men had sexually harassed her in the streets of Cairo and claimed that her money and belongings had been stolen. (Lebanese Woman Sentenced to Eight Years for “Insulting” Egypt, AL JAZEERA (July 8, 2018).)
Mazbouh was charged with spreading false rumors harming the reputation of the country and insulting the Egyptian people. Her defense attorney used a plea of insanity in her defense, claiming that in 2006 his client underwent surgery to remove a blood clot located in her brain, which impairs her ability to control her anger. (Jason Lemon, Tourist Gets Eight-Year Prison Sentence After Calling Egypt “Son of a B**** Country,” NEWSWEEK (July 8, 2018).) On September 9, 2018, the Appellate Misdemeanors Court approved Mazbouh’s appeal and repealed the decision rendered by the First Instance Court. However, it ordered that she be deported immediately and pay a fine of 10,700 Egyptian pounds (about US$598). (Egypt to Free Lebanese Tourist Sentenced to 8 Years for Insulting Country, TIMES OF ISRAEL (Sept. 9, 2018).)
Article 80(d) of Egypt’s Penal Code states that whoever deliberately spreads false information or rumors abroad about the internal conditions of the country that might weaken the country’s financial credibility or harm the country’s national interests is punishable by six months to five years’ imprisonment and a fine. (Law No. 58 of 1937 on the Penal Code, Manshurat website (in Arabic).)
Article 308 of the Code punishes any individuals who commit the act of insult, slander, cursing, or attacking the dignity and reputation of others with a term of imprisonment. The provision does not specify the period of imprisonment. However, article 302 of the Code grants the judge personal discretion in setting the penalty and period of imprisonment for an offense if the provision does not determine such a period. (Id.)
The original decision against Mazbouh was issued by the Cairo Misdemeanor Court of First Instance. Under article 402 of the Law of Criminal Procedure, a defendant sentenced to prison in a misdemeanor case has the right to file an appeal before the Misdemeanor Court of Appeal within 10 days from the date the court of first instance rendered its decision. (Law of Criminal Procedure No. 150 of 1950 and Its Amendments, Ministry of Justice website (in Arabic).
(Sept. 11, 2018) On July 18, 2018, Sir Cliff Richard OBE was awarded £210,000 (about US$270,360) in general damages after the British Broadcasting Corporation (BBC) was held liable for infringing his privacy rights over the filming and broadcast of a search of his UK property by South Yorkshire Police (SYP) in relation to allegations of historical child sexual abuse. (Richard v. The British Broadcasting Corporation (BBC) & Anor  EWHC 1837 (Ch).) Sir Cliff was never arrested or charged over the allegations, and the investigation, known as Operation Kaddie, was subsequently dropped by the Crown Prosecution Service (CPS) due to insufficient evidence. (Statement in Operation Kaddie, CPS (June 16, 2016).)
The judge, Justice Mann, ruled in this case that Sir Cliff had a “reasonable expectation of privacy” against both the SYP and the BBC. (Richard, EWHC 1837, paras. 252, 261.) Consequently, Sir Cliff’s rights to privacy under article 8 of the European Convention on Human Rights as brought into English law by the Human Rights Act 1998 were engaged both when his home was searched and when that information was turned over to the BBC by the SYP. (European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (ECHR) art. 8, Nov. 4, 1950, ETS 5; Human Rights Act 1998, §§ 1 & 2; Richard, EWHC 1837, para. 263.) Furthermore, and critically for the implications of this decision, he ruled that, “as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation.” (Id. para. 248.)
Having established that Sir Cliff’s article 8 rights were engaged, Justice Mann went on to rule that, although the BBC has a right to freedom of expression (as provided for under article 10 of the ECHR) and was owed special consideration due to its nature as a journalistic institution (as specifically mentioned in section 12(4) of the Human Rights Act), Sir Cliff’s rights to privacy “were not outweighed by the BBC’s rights to freedom of expression.” (ECHR, supra, art. 10; Human Rights Act 1998 § 12(4); Richard, EWHC 1837, para. 315.) Consequently, the judge concluded that “the BBC is liable for infringing Sir Cliff’s privacy rights when it disclosed, by broadcasting, the fact that Sir Cliff was the subject of an investigation for historic sexual abuse and that his property was being searched in connection with that investigation.” (Richard, EWHC 1837, para. 323.)
After consideration of the damage done to Sir Cliff’s reputation (id. paras. 334–346), finances (id. paras. 400–408), and health (id. para. 352) by the infringement on his right to privacy, Justice Mann awarded £210,000 in damages from the BBC (id. para. 453).
Following the decision, media outlets have claimed that the ruling, and specifically the precedent that a suspect generally has a reasonable expectation of privacy while under police investigation, will fundamentally change the way police investigations are covered in the news. In a statement on July 18, 2018, the BBC news director, Fran Unsworth, said that she does not believe that the ruling is “compatible with liberty and press freedoms” because “[i]t means police investigations, and searches of people’s homes, could go unreported and unscrutinised. It will make it harder to scrutinise the conduct of the police and we fear it will undermine the wider principle of the public’s right to know. It will put decision-making in the hands of the police.” (Press Release, Fran Unsworth, BBC Director of News and Current Affairs, BBC Statement Regarding Ruling in Sir Cliff Richard Case (July 18, 2018).)
Prepared by Ben Hills, Law Library intern, under the supervision of Clare Feikert-Ahalt, Senior Foreign Law Specialist.
India: Punjab Passes Amendments to Indian Penal Code and Code of Criminal Procedure Making Sacrilege of Certain Religious Texts a Crime
(Sept. 10, 2018) On August 28, 2018, the Punjab Legislative Assembly (Punjab Vidhan Sabha) passed the Indian Penal Code (Punjab Amendment) Bill, 2018 and the Code of Criminal Procedure (Punjab Amendment) Bill, 2018 to introduce amendments to the Indian Penal Code and Code of Criminal Procedure (applicable only in the state of Punjab) that make committing sacrilege against certain religious texts punishable with life imprisonment. (Punjab Passes Bills Making Desecration of Religious Texts Punishable with Life Term, THE WIRE (Aug. 28, 2018).)
On August 21, 2018, the Cabinet of the State Government of Punjab approved the amendments with the stated aim of “taking a major step towards curbing such incidents [of sacrilege] and maintaining communal harmony in the state.” (Press Release, Government of Punjab, Punjab Cabinet Okays Amendments to CrPC & IPC to Make Sacrilege of All Religious Texts Punishable with Life Imprisonment (Aug. 21, 2018).)
The Indian Penal Code (Punjab Amendment) Bill, 2018 includes the insertion of Section 295AA into the Penal Code to provide that “whoever causes injury, damage or sacrilege to Sri Guru Granth Sahib, Srimad Bhagwad Geeta, Holy Quran and Holy Bible with the intention to hurt the religious feelings of the people, shall be punished with imprisonment for life.” (Id.) Section 295 was also reportedly amended to increase the term of imprisonment for the offense of “injuring or defiling [a] place of worship with [the] intent to insult the religion of any class” from two years to 10 years. (INDIAN PENAL CODE, Act No. 45 of 1860, § 295, National Informatics Centre’s India Code website; Punjab Assembly Passes Bill Seeking Life Sentence for Sacrilege of Religious Texts, THE HINDU (Aug. 28, 2018).)
Background of the Amendments
In April 2017, the Chief Minister of the Indian state of Punjab, Captain Amarinder Singh, who leads the Congress party government, set up a commission called the Justice Ranjit Singh Commission to investigate “various incidents of sacrilege of the holy Guru Granth Sahib and other religious texts.” (Press Release, Government of Punjab, Justice (RETD) Ranjit Singh Submits Full & Final Report on Sacrilege Cases to Punjam CM (Aug. 16, 2018).) The Commission was to investigate incidents in the “previous two years as well as the police firing on villagers protesting one such incident in October 2015. The firing at Kotkapura and Behbal Kalan had left two people dead and several injured.” (Sruthisagar Yamunan, Punjab’s Move to Expand India’s Blasphemy Laws Is a Blow to Freedom of Expression, SCROLL.IN (Aug. 23, 2018).) The Punjab Chief Minister accepted the recommendations of the Commission. (Id.)
In 2016 two bills—the Indian Penal Code (Punjab Amendment) Bill, 2016 and the Code of Criminal Procedure (Punjab Amendment) Bill, 2016—which amended the Indian Penal Code and the Code of Criminal Procedure, respectively, were passed by the Punjab Assembly during the previous Shiromani Akali Dal (SAD)-Bharatiya Janata Party government, establishing life imprisonment “for any sacrilege of the holy Guru Granth Sahib,” the religious scripture of the Sikh religion. According to one report “[t]he bills were introduced after several incidents related to the desecration of the holy book in various parts of the state were reported in 2015. The earlier bill passed by the state Assembly in March 2016 had been objected to by the Centre on the grounds that it should include punishment for sacrilege against all religions and not exclusively for the Sikh religion.” (Vandana, How Congress Govt in Punjab Is Attacking Freedom of Speech with Law Against “Sacrilege” of Religious Texts, DAILY O (Aug. 22, 2018).)
Though the provincial government has defended the move as justified for preserving communal harmony in the state, certain sections of the public and media have termed the amendments regressive, politically motivated, and a threat to freedom of speech and expression, with some even comparing them to Pakistan’s blasphemy laws. (“Is This Pakistan?” Punjab Cabinet Faces Ire for Making Sacrilege of Religious Text Punishable for Life, ZEE NEWS (Aug. 22, 2018); Punjab’s Effort to Criminalise Blasphemy Further Is Dangerous, HINDUSTAN TIMES (Aug. 24, 2018).)
(Sept. 7, 2018) On July 12, 2018, the German Federal Court of Justice (Bundesgerichtshof, BGH) held that user agreements for digital social media accounts are inheritable. Upon the death of the account holder, the user agreement passes to the heirs by operation of law, and the heirs are subrogated to the rights of the deceased, in accordance with § 1922 of the Civil Code. Access to the account is precluded neither by the postmortem personality rights of the deceased, nor by the confidentiality of telecommunications, nor by data protection law. (BGH, July 12, 2018, Docket No. III ZR 183/17, ECLI:DE:BGH:2018:120718UIIIZR183.17.0, BGH website; BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE], Jan. 2, 2002, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 42, 2909; 2003 BGBl. I at 738, as amended, § 1922.)
Facts of the Case
The plaintiffs are the parents of a deceased 15-year old daughter. The defendant is the social media platform Facebook. On January 4, 2011, the deceased registered a user account with the defendant with the permission of her parents. On December 3, 2012, she was fatally injured when she was hit by an incoming train under circumstances that are still unclear. (BGH, III ZR 183/17, para. 3.) The plaintiffs unsuccessfully tried to get access to her user account with her login details, but the defendant had turned their daughter’s profile into a so-called “memorial page.” When an account is turned into a memorial page, access to the user data is not possible even with the login details. However, the content remains on the servers and is visible to the selected audience. Depending on the privacy settings, friends may share memories on the page. The general terms and conditions of the defendant do not mention the rules on “memorial pages.” (Id. at 4.)
The plaintiffs allege that access to their daughter’s Facebook account is necessary to determine whether she was harboring suicidal thoughts before her death and to defend against claims for damages from the train driver. (Id. at 5.) The court of first instance ruled in favor of the plaintiffs, whereas the court of appeals ruled against them, holding that the confidentiality of telecommunications prevented the defendant from transmitting telecommunication content to heirs. (Id. at 6 & 12.) The Federal Court of Justice set aside the decision of the court of appeals and held in favor of the plaintiffs. (Id. at 8.)
The Federal Court of Justice stated that the user agreement between Facebook and the deceased is a contract that passed to the heirs by operation of law according to section 1922, para. 1 of the German Civil Code. It held that the parents therefore have a right to access the account and its digital content. (Id. at 19 & 21.) Neither the contractual terms nor the type of contract excludes the hereditability, in the opinion of the Court. (Id. at 23.) The rules on “memorial pages” are not part of the general terms and conditions. (Id. at 27.) Furthermore, the Court held that even if they were part of the general terms and conditions, they would not be valid, because they unreasonably disadvantage the other party to the contract. The rules do not explicitly prohibit the hereditability, but they undermine it by preventing access to the account by the heirs. (Id. at 30.) Furthermore, the Court stated that they also prevent the heirs from exercising their essential contractual rights, meaning accessing the account and its content and disposing of it. (Id. at 31.)
The Federal Court of Justice ruled that hereditability is also not barred by the type of contract. (Id. at 33.) It explained that the contractual obligations are not strictly personal in nature. Only the user-created content has relevance with regard to personality rights. The services of the defendant, however, do not differ from user to user and there is therefore no protected interest of the defendant to refuse to perform those services for the heirs. (Id. at 35 & 36.) Furthermore, the Court held that the situation is comparable to analog communications such as letters and diaries that have strictly personal content. (Id. at 49.) Such analog documents are inheritable as can be inferred from section 2047, para. 2 and section 2373, sentence 2 of the Civil Code, and there seems to be no reason to treat digital content differently, in the opinion of the Court. It is not the way the information is stored that is strictly personal but the content of the information. (Id. at 49 & 50.)
In addition, the Court held that the confidentiality of telecommunications does not bar the heirs from accessing the account. The defendant is not forced to transfer personal data to a third party, because the heirs became a party to the user agreement upon the death of their daughter. (Id. at 56 & 60.)
Finally, the Federal Court of Justice held that honoring the plaintiffs’ request would not violate data protection laws, because the EU General Data Protection Regulation (GDPR) does not apply to the personal data of deceased persons. (Id. at 64 & 67; Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation) (GDPR), recital 27, 2016 O.J. (L 119) 1). In addition, the GDPR does not bar the defendant from providing the heirs access to the content, because the processing is necessary for (1) the performance of a contract and (2) the purposes of the legitimate interests pursued by plaintiffs. (BGH, III ZR 183/17, at 70; GDPR, art. 6, para. 1(b) & (f).) In this case, the Court concluded that defending themselves against the claim for damages by the train driver and finding out whether their daughter committed suicide constitute legitimate interests to pursue. (BGH, III ZR 183/17, at 74, 80, 81.)
Japan: Civil Code Amended to Enable Elderly Widows and Widowers to Continue Living in Deceased Spouse’s Residence
(Sept. 6, 2018) The inheritance chapter of Japan’s Civil Code was amended in July 2018. (Act to Amend Civil Code and Domestic Relations Case Procedure Act, Act No. 72 of 2018, KANPOU [OFFICIAL GAZETTE] Extra Ed., No. 154, at 4 (July 13, 2018), National Printing Bureau website (in Japanese).) The amendment will become effective by July 2019. (Act No. 72 of 2018, Supp. Provisions art. 1.)
Among other things, the amendment created the right for a widow or widower to continue living in an inherited residence. When a widow or widower has lived in a home that belonged to her/his deceased spouse at the time of the spouse’s death, the widow or widower will have right to keep living there for free if the spouse has granted the widow or widower such a right or if the right is given when the estate is divided among the heirs. (CIVIL CODE, as amended by Act No. 72 of 2018, art. 1028.) In the latter instance, there are two types of cases: (1) the heirs agree to give such a right to the widow or widower, and (2) the widow or widower requests the court to grant her/him such a right, and the court finds it necessary to maintain that right, even if doing so is to the detriment of the owner of the residence. (Id. art. 1029.) Such a right to residence lasts until the widow or widower dies, but can end sooner than that. (Id. art. 1030.) The owner of the residence is obligated to register the widow or widower’s right to residence. (Id. art. 1031.) The widow or widower cannot transfer the right and cannot rent the residence to others. (Id. art. 1032, paras. 2 & 3.) Because the appraisal value of the right to the residence would be lower than that of residence’s ownership value, the widow or widower would likely receive other assets from her/his spouse besides the residence. (Cabinet Decision on Spouse’s Right to Residence, Bill to Amend Civil Code and Others, MAINICHI (Mar. 13, 2018) (in Japanese).)
Even if a widow or widower does not obtain the right to keep living at the residence owned by her/his deceased spouse, if the widow or widower was living at the residence for free at the time of the spouse’s death, the widow or widower will be able to keep living at the residence for free for six months after the estate is divided. (Id. art. 1037.)
In addition, in the case of a widow or widower who had been married to the deceased spouse for 20 years or more, if the deceased spouse before his/her death gave their residential property to the partner as a gift or left it to the spouse in his/her will, the value of the property is to be excluded from the value of the estate when the estate is divided among the heirs. (Id. art. 903, para. 4.)
(Sept. 5, 2018) On August 24, 2018, the Democratic Republic of the Congo’s Independent National Electoral Commission (Commission Electorale Nationale Independente, CENI) declared Jean-Pierre Bemba Gombo ineligible to run in the country’s upcoming presidential election. (Décision No. 028/CENI/BUR/18 du 24 août 2018 déclarant irrecevable les candidatures des indépendants, des partis, et des regroupements politiques à l’élection du président de la République [Decision No. 028/CENI/BUR/18 of 24 August 2018 Declaring the Candidacies of Independents, Parties, and Political Groups Ineligible for the Election of the President of the Republic]; Annexe à la Décision N°028/CENI/BUR/18 du 24 août 2018 : Liste des candidatures déclarées irrecevables à l’élection du président de la République [Annex to Decision No. 028/CENI/BUR/18 of 24 August 2018: List of the Candidates Declared Ineligible for the Election of the President of the Republic].)
Jean-Pierre Bemba was nominated in July 2018 by the Mouvement de Libération du Congo (Congo Liberation Movement, MLC) party to be their candidate in the presidential elections scheduled to take place on December 23, 2018. (Sarah Ettedgui & Nicolas Boring, Democratic Republic of the Congo: Party Names Ex-warlord for Presidential Election Following ICC Acquittal, GLOBAL LEGAL MONITOR.) Prior to that, Bemba had been acquitted of charges of war crimes and crimes against humanity by the Appeals Chamber of the International Criminal Court, which overturned a 2016 Trial Chamber decision finding him guilty of these charges. (Id.) The MLC argued that Bemba should be allowed to run following his acquittal. (Mohammed Yusuf, Decision on Bemba Ballot Push Could Affect Congo’s Election, VOA (Aug. 29, 2018).) However, the CENI based its decision on the fact that the ICC had found Bemba guilty of suborning witnesses in his trial. (Annexe à la Décision N°028/CENI/BUR/18 du 24 août 2018, supra). Bemba appealed this decision, but the appeal is still pending. (Ettedgui & Boring, supra; Jean-Pierre Bemba “Cannot Run for DRC President,” BBC NEWS (Aug. 25, 2018).)
Bemba has appealed the CENI’s decision, and the Constitutional Court is expected to issue a ruling on his eligibility by September 19. (Yusuf, supra). Observers have noted that Bemba enjoys significant support among the population, and his exclusion from the elections risks affecting the next president’s legitimacy in the eyes of many voters. (Id.)
(Aug. 31, 2018) On July 4, 2018, the Maltese government enacted three laws whose goal is to make Malta a haven for projects that rely on blockchain and other distributed ledger technology (DLT). The Malta Digital Innovation Authority Act (MDIA Act), Innovative Technology Arrangements and Services Act (ITAS Act), and Virtual Financial Assets Act (VFA Act) in combination aim to provide a robust legislative and regulatory framework, yet one that does not negatively affect the growth of technology companies that use DLT. (MDIA Act, July 15, 2018, cap. 591; ITAS Act, 2018, cap. 592; VFA Act, 2018, cap. 590 (all on Ministry for Justice, Culture and Local Government’s Laws of Malta website).)
Article 5 of the MDIA Act creates the Malta Digital Innovation Authority (the Authority)—a body whose purpose is to “address the development in Malta of all innovative technology arrangements and innovative technology services” (MDIA Act art. 6) in order to “seek the development of the innovative technology sector in Malta through proper recognition and regulation of relevant innovative technology arrangements and related services” (id. art. 3). The MDIA Act grants the Authority extensive powers to recognize applicants that use “innovative technology arrangements” (defined in article 2 as “intrinsic elements including software, codes, computer protocols and other architectures which are used in the context of DLT, smart contracts and related applications”); investigate applicants that they suspect of not meeting the “quality and integrity standards required … for purposes of recognition or compliance” with the law (id. art. 39); and sanction those who do not comply with a fine of up to €12,000 (about US$14,017) or imprisonment for up to three months, or both (id. art. 40(5)).
The ITAS Act outlines the different methods by which the Authority can recognize “innovative technology arrangements and innovative technology services.” (ITAS Act art. 3(2).) The Authority can certify the qualities, features, attributes, behaviors, or aspects of a particular arrangement as fit for a particular purpose or purposes (id. art. 7(1)) and then issue a certificate that “shall state the details of how the innovative technology arrangement is identified, including any public key or a brand name, and the Certificate shall be given a unique number for purposes of identification” (id. art. 7(6)). There are further safeguards as to the quality of the service provided by the particular arrangements, including a requirement to have a registered technical administrator, who can prove to the Authority that the arrangements can satisfy the service listed on the certificate, in office at all times. (Id. art. 8(4)(c).)
The VFA Act regulates what have become known in wider circles as Initial Coin Offerings (ICOs)—the initial circulating of a cryptographic digital medium of exchange, unit of account, or store of value (a token, coin, etc.) by an issuer, usually in exchange for fiat currency in exchange. The VFA Act mandates that no issuer can make an ICO without first publishing a white paper that has been signed by every member of the issuer’s Board of Administration (VFA Act art. 3) and contains “information which, according to the particular nature of the issuer and of the virtual financial assets offered to the public, is necessary to enable investors to make an informed assessment of the prospects of the issuer, the proposed project and of the features of the virtual financial asset” (id. sched. 1).
Furthermore, that information must be presented in “an easily analysable and comprehensible form.” (Id.) The white paper must also include a warning that the “offering of virtual financial assets does not constitute an offer or solicitation to sell financial instruments.” (Id.) Finally, the white paper must be approved by the registered VFA agent (id. art. 3(3)), who must be appointed and be “at all times in place” with the issuer in order to ensure compliance with the law (id. art. 7(1)).
In parallel, the three new pieces of legislation look to provide a solid regulatory and legislative framework for the use of blockchain and DLT technologies—allowing service providers to be recognized by the government as being legitimately innovative in return for increased public confidence in the accountability of this rapidly growing and cutting-edge sector.
(Aug. 31, 2018) On July 21, 2018, new rules to make money market funds (MMFs) more resilient against financial market difficulties, reduce the risk of runs, and limit cross-border contagion began applying to newly issued MMFs in the European Union (EU). Existing MMFs must show compliance by January 21, 2019. MMFs are mutual funds that invest in short-term debt, such as treasury bills, commercial paper, or certificates of deposit, and are used by investors as an alternative to bank deposits. The recent global financial crisis revealed that some features of MMFs spread or amplify risk throughout the financial system. The EU passed the MMF Regulation to reduce such risk in money market funds. (Regulation (EU) 2017/1131 of the European Parliament and of the Council of 14 June 2017 on Money Market Funds (MMF Regulation), 2017 O.J. (L 169) 8, EUR-Lex website; Press Release, European Commission, Memo: New Rules for Money Market Funds Proposed – Frequently Asked Questions (Sept. 4, 2013), European Commission website.)
The MMF Regulation introduces stricter liquidity requirements for MMFs to meet any sudden withdrawal of investment, establishes rules on portfolio diversification and valuation of assets, increases the requirements for credit quality, prevents MMFs from receiving any external financial support, and imposes direct obligations on MMF fund managers.
Scope of the Regulation
The MMF Regulation applies to all MMFs that are established, managed, or marketed in the EU. (MMF Regulation art. 1, para. 1.) There are three different types of MMFs, with different compliance requirements for each. (Id. art. 3, para. 1.)
- Variable Net Asset Value (VNAV) MMFs: their value depends on the assets they hold and therefore on market fluctuations.
- Public Debt Constant Net Asset Value (CNAV) MMFs: Their value is calculated according to a formula based on the purchase price of the assets (amortized cost method) and remains relatively constant, typically €1.00 (about US$1.17) per share. They must invest 99.5% of their assets in public and government debt and in cash.
- Low Volatility Net Asset Value (LVNAV) MMFs: These funds are newly introduced by the MMF Regulation as an alternative to CNAVs. Their value is constant up to a certain limit. They may use the amortized cost method of valuation for assets with a residual maturity of less than 75 days.
The Regulation introduces new liquidity requirements to ensure there is sufficient liquidity to meet investors’ redemption requirements. 10% of LVNAV MMF assets and 10% of CNAV MMF assets must be able to be repaid by the issuer within a day, and 30% within a week. (Id. art. 24, para. 1(c) & (e).) VNAV MMFs are required to hold at least 7.5% of assets that mature within a day, and 15% that mature within a week. (Id. art. 24, para. 1(d) & (f).)
The MMF Regulation sets portfolio diversification requirements in order to limit risk-taking by the MMFs. (Id. recital 28.) MMFs may therefore not invest more than 5% of their assets in money market instruments, securitizations, and asset-backed commercial papers issued by the same body, and not more than 10% of their assets in deposits made with the same credit institution. (Id. art. 17, para. 1.) In addition, there is a 15% limit on the cash amount in reverse repurchase agreements. (Id. art. 17, para. 5.) Furthermore, MMFs may generally not invest more than 17.5 % of their assets in units or shares of other MMFs. (Id. art. 16, para. 3.) However, there is an exception from the portfolio diversification rules for employee savings schemes, because employees cannot redeem their investment on demand, even in stressed market situations. (Id. recital 30; art. 16, para. 5.)
Article 35 prohibits all MMFs from receiving external support. The MMF Regulation states that the reason for the prohibition is that the contagion risk between the MMF sector and the rest of the financial sector increases through external support. (Id. recital 49.) “External support” is defined as any “direct or indirect support offered to an MMF by a third party, including a sponsor of the MMF, that is intended for or in effect would result in guaranteeing the liquidity of the MMF or stabilising the NAV [net asset value] per unit or share of the MMF.” (Id. art. 35, para. 2.) The Regulation provides a nonexhaustive list of items that constitute external support:
- cash injections from a third party
- purchase by a third party of assets of the MMF at an inflated price
- purchase by a third party of units or shares of the MMF in order to provide liquidity to the fund
- issuance by a third party of any kind of explicit or implicit guarantee, warranty, or letter of support for the benefit of the MMF
- any action by a third party the direct or indirect objective of which is to maintain the liquidity profile and the NAV per unit or share of the MMF (Id.)
The managers of MMFs are responsible for ensuring compliance with the MMF Regulation and may be held liable. (Id. art. 7, para. 4.) They are obligated to establish, implement, and apply internal credit quality assessment procedures to determine the credit quality of the assets they invest in. (Id. art. 19.) This rule is meant to reduce the overreliance on external ratings, which turned out to be a problem during the last financial crisis. (Id. art. 19, para. 4(d); art. 20, para. 1.)
In order to further transparency, MMF managers are obligated to inform investors weekly about
- the maturity breakdown of the portfolio of the MMF;
- the credit profile of the MMF;
- the weighted average maturity (WAM) and weighted average life (WAL) of the MMF;
- details of the 10 largest holdings in the MMF;
- the total value of the assets of the MMF; and
- the net yield of the MMF. (Id. art. 36.)
Furthermore, the managers must provide information on the MMF to the competent authorities on a quarterly basis. (Id. art. 37, para. 1.) As an exception, managers of MMFs with assets worth less than €100 million (about US$117 million) must report on an annual basis. (Id.) The reports must include
- the type and characteristics of the MMF;
- portfolio indicators such as the total value of assets, NAV, WAM, WAL, maturity breakdown, liquidity and yield;
- the results of stress tests and, where applicable, the proposed action plan;
- information on the assets held in the portfolio of the MMF; and
- information on the liabilities of the MMF. (Id. art. 37, para. 2.)
The MMF Regulation is supplemented by a report from the European Securities and Markets Authority (ESMA), which contains technical advice on liquidity and credit quality requirements, draft implementing technical standards to establish a reporting template for managers of MMFs, and guidelines on stress tests. (ESMA, Final Report: Technical Advice, Draft Implementing Technical Standards and Guidelines Under the MMF Regulation (Nov.13, 2017), ESMA website.)
The issue of whether share destruction/share cancellation, a common practice used by CNAV MMFs to reduce the amount of an investor’s shares corresponding to the amount of negative yield, should no longer be allowed for CNAV MMFs, was referred to the European Commission’s legal service. (Id. at 7.)
(Aug. 31, 2018) In June 2017 the Diet (Japan’s Parliament) enacted the House Sharing Business Act, which regulates short-term home renting (minpaku). (Sayuri Umeda, Japan: Law on Renting Rooms in Private Homes to Tourists, GLOBAL LEGAL MONITOR (June 16, 2017).) The new law became effective on June 15, 2018. (Press Release, Japan Tourism Agency, Cabinet Decisions on Order to Set Enforcement Date of House Sharing Business Act and Enforcement Order of House Sharing Business Act (Oct. 24, 2017) (in Japanese).) Under the Act, when there is a need to prevent the deterioration of the living environment in neighborhoods that results from the noise of renters or other issues related to the renting business, the prefectures or certain large cities with jurisdiction over the properties can set an ordinance in order to limit the renting period in a specified area. (House Sharing Business Act, Act No. 65 of 2017, art. 18, e-Gov website (in Japanese).)
As of June 15, 2018, 52 local governments had enacted such ordinances. Under the House Sharing Businesses Act, a business that rents out all or part of a home for a short-term period must report the business for each home to the local government. 3,728 businesses have made such reports so far, and local governments have completed reviews of 2,210 of them. (Expectations and Complaints Regarding Enforcement of New House Sharing Law, KANKO KEIZAI SHINBUN [TOURISM ECONOMY NEWSPAPER] (July 5, 2018) (in Japanese).) As of August 17, 2018, 100 local governments had adopted such ordinances and completed reviews of 6,297 out of 7,594 business reports. (Japan Tourism Agency, A Chart of Numbers of Reports and Registrations Under the House Sharing Business Act (Aug. 17, 2018), Ministry of Land, Infrastructure, Transport and Tourism website.) The number of reported businesses is significantly lower than the 62,000 units that were listed on Airbnb in spring 2018. Calls for easier procedures for the reporting of such businesses have been made in news media. (Reviews of Minpaku Business Delayed, NIKKEI (July 15, 2018).)
Meanwhile, the number of applications for permission to operate basic lodging facilities (kan-i shukusho), such as pension hotels and hostels, has increased. (Minpaku Reports Hitting the Wall, Kan-i shukusho Increasing, SANKEIBIZ (June 16, 2018).) A basic lodging facility operator must obtain permission from the local government under the Hotel Business Act. (Hotel Business Act, Act No. 138 of 1948, amended by Act No. 84 of 2017, art. 3, e-Gov website (in Japanese).) A basic lodging business cannot operate in an exclusively residential area, and there are other operating requirements as well. (Id.) However, there is no restriction for lodging businesses regarding the maximum number of business days, unlike in the house-sharing business. (House Sharing Business Act art. 2, ¶ 3.) News articles have reported that some of the people who considered engaging in house sharing chose the basic-lodging business instead because the return on the investment is quicker. (Minpaku Reports Hitting the Wall, Kan-i shukusho Increasing, supra.)
(Aug. 31, 2018) On July 5, 2018, the European Parliament voted to halt the passage of the proposed Directive on Copyright in the Digital Single Market (the Directive), voting instead to reopen debate on the provisions by a margin of 318 votes to 278, with 31 abstentions. (Proposal for a Directive of the European Parliament and of the Council on Copyright in the Digital Single Market, Eur. Parl. Doc. COM(2016) 593 final, 2016/0280(COD) (2016), EUR-Lex website; Results of Votes, Annex, Eur. Parl. Doc. P8_PV(2018)07-05(VOT)_EN, European Parliament website.)
In accordance with the July vote, the Directive has been slated for renewed debate before the European Parliament and a vote on September 12, 2018. (Draft Agenda: Sittings of 10/09/2018 – 13/09/2018, Eur. Parl. Doc., Plenary Sittings Directorate (Aug. 7, 2018).)
The rejected Directive represented an attempt, as stated in part 1 of its Explanatory Memorandum, “at achieving a well-functioning market place for copyright” within the single market of the EU, with the aim that the proposed provisions would “have in the medium term a positive impact on the production and availability of content and on media pluralism, to the ultimate benefit of consumers.” The Directive also aimed to partially implement the Marrakesh VIP Treaty by providing a mandatory copyright exemption for books for the visually impaired. (Summary of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (MVT) (2013), WIPO (last visited Aug. 30, 2018); Peter Roudik, European Union: Exclusive Competence over Marrakesh Treaty Confirmed, GLOBAL LEGAL MONITOR (May 23, 2017).)
The Directive generated significant controversy, with criticism from internet technology companies, such as Google, Facebook, and the Wikimedia Foundation, to civil rights organizations and research centers. (Caroline Atkinson, European Copyright: There’s a Better Way, GOOGLE (Sept. 14, 2016); Sam Forsdick, European Parliament Votes Against “Publisher’s Right” Copyright Law Changes as Facebook Warns of “Unintended Consequences,” PRESS GAZETTE (July 5, 2018); Eileen Hershenov, How the EU Copyright Proposal Will Hurt the Web and Wikipedia, WIKIMEDIA (June 29, 2018); Article 13 Open Letter – Monitoring and Filtering of Internet Content Is Unacceptable, LIBERTIES (Oct. 16, 2017); EU Copyright Reform: Evidence on the Copyright in the Digital Single Market Directive, CREATE (Apr. 26, 2018). Articles 11 and 13 of the Directive were noted to be of particular concern as they seemed to dramatically restrict the kind of content that could lawfully be uploaded and shared over the internet by an ordinary user without a license.
Article 11 of the Directive provides “publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the digital use of their press publications”—namely the right to limit or prevent reproduction of a given work by another and the right to authorize or prevent public access to a given work. (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society arts. 2 & 3(2), 2001 O.J. (L 167) 10.) However, such a provision, according to European Parliament Member Julia Reda, would effectively outlaw news aggregate websites that provide links to journalistic content created by others, such as Google News, Huffington Post, and Facebook News Feed. In order to link to such news stories, the linker would have to seek out every author of every linked article and receive permission to link to each individual story, which would limit the ability to effectively disseminate or fact check those stories. (Julia Reda, Extra Copyright for News Sites (“Link Tax”), JULIA REDA (last visited Aug. 30, 2018).)
Article 13 provides that
[i]nformation society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter.
This article would require, for example, a photograph-sharing website to take appropriate and proportionate action to remove an upload of a copy of an artist’s photograph that one of its users has uploaded and is allowing an audience to access for free. (Julia Reda, Censorship Machines (Article 13), JULIA REDA (last visited Aug. 30, 2018).) It would also require that website to have an appropriate system that recognizes anyone but the original rightsholder who attempts to upload that picture, and any such uploads must be shut down preemptively to prevent the abuse of intellectual property. Article 13 suggests that an “appropriate and proportionate” method of achieving this would include “the use of effective content recognition technologies.” However, when one considers the volume of content uploaded to the internet, it clear that such technologies would be the only cost effective method—YouTube alone, for example, receives 300,000 video uploads a day. (Rasty Turek, What YouTube Looks Like in a Day [Infographic], MEDIUM (Feb. 10, 2016).) Automated systems are notorious for making false positive decisions, taking down content that is either covered by exemptions to copyright laws (Hitler “Downfall” Parodies Removed from YouTube, CBS NEWS (Apr. 21, 2010), such as works “for the purpose of caricature, parody or pastiche” (Directive 2001/29/EC art. 5(k)), or works that are not purposeful infringements of Copyright Laws at all (Francis Whittaker, Fans Howl over Taking Down World Cup Twitter Posts for Copyright Issues, NBC NEWS (last updated Aug. 28, 2018).
Italy: New Law Amends Rules on Fixed-Term Employment Contracts, Delocalization of Companies, and Determining Taxpayer Income
(Aug. 30, 2018) On July 14, 2018, a new law amending rules on fixed-term employment contracts entered into force in Italy. (Decree Law No. 87 of July 12, 2018, Urgent Provisions for the Dignity of Workers and Companies) (D.L. No. 87), GAZZETTA UFFICIALE (G.U.), July 13, 2018 (in Italian), G.U. website.)
The new provisions apply to fixed-term employment contracts executed after the effective date of the new law and to the renewals and extensions of contracts in effect on that date. (Id. art. 1(2).) Excluded from the new provisions are contracts entered into by government agencies, which continue to be governed by existing legislation. (Id. art. 1(3).)
New Duration of Fixed-Term Employment Contracts
The new law establishes that employment contracts for a fixed term may have a duration of up to twelve months but not exceed twenty-four months, provided that certain criteria are met. (D.L. No. 87, art. 1(1)(a)(1).) In any employment contract for a fixed-term whose duration exceeds twelve days, the clause for the termination of the contract must be in writing under penalty of nullity. (Id. art. 1(1)(a)(3).) A copy of the contract must be furnished to the workers within five days from the beginning of the employment relationship. (Id.) Fixed-term employment contracts may be extended freely within the first twelve months, after which period they may be extended only if the company has been in compliance with certain requirements established in the law. (Id. art. 1(1)(b)(1).)
Indemnification for Unjustified Dismissals
The new legislation increases the minimum indemnification owed to workers subject to fixed-term employment contracts from four to six monthly payments, and the maximum from twenty-four to thirty-six monthly payments. (Id. art. 3(1).)
Employment Contracts in the Education Sector
In order to ensure that adequate financing for the 2018–19 school year exists throughout the national education system, the law postpones for 120 days the enforcement of judicial decisions imposing the termination of fixed-term or permanent employment contracts with respect to teachers who hold a master’s degree. (Id. art. 4(1).)
Termination of Benefits for the Delocalization of Companies
Delocalization is defined as the transfer of an economic activity or a part thereof by the benefitting company or by a controlled or connected company from the productive site that received the government incentive to another site. (Id. art. 5(6).)
Under the new legislation, Italian and foreign companies operating in the national territory lose the government assistance granted to them as a condition of their carrying out productive investment within an EU country when they delocalize from EU territory to non-EU territory within five years from the date of the benefit. (Id. art. 5(1).)
Italian or foreign companies operating in the national territory are entitled to receive different forms of financial assistance from the Italian government. Such financial assistance is aimed at supporting the generation of employment by the beneficiary companies. Upon receiving the financial assistance, beneficiary companies must declare the employment levels (that is, the number of workers employed) allocated to each productive unit or activity affected by the financial assistance. Under the amended legislation, beneficiary companies are obligated not to reduce such employment levels by more than 10% of the total workforce allocated to the respective productive unit or activity within ten years from the date when the respective investment was completed. Beneficiary companies may submit claims justifying a reduction in employment levels. The new legislation reduces the aforementioned term from ten to five years. (Id. art. 6(1); Franco Canna, Aiuti di Stato e Delocalizzazioni, nel Decreto Dignità Confermate Revoca dei Benefici e Sanzioni [State Assistance and Delocalization in the Dignity Decree Confirms Revocation of Benefits and Penalties], INNOVATION POST (July 3, 2018).)
Additionally, when a beneficiary company transfers subsidized assets (that is, assets that have been acquired through government financial assistance) for value or allocates them to production facilities located abroad, even those belonging to the same company, the government agency may recover the depreciation cost of such assets. (Id. art. 7(1).)
Tax Credits for Research and Development Investments
Tax credits for research and development investments exclude costs incurred for the purchase of intangible assets, including usage licenses, incurred by companies belonging to the same holding company. (Id. art. 8(1).) The new law reiterates the requirement that, for tax credits for research and development investments to apply, the concerned assets must be utilized directly and exclusively in the carrying out of such activities. (Id. art. 8(3).)
Measures Against Gambling Addiction
The new law prohibits any type of publicity, even if indirect, for games and betting involving any type of money awards, including at sporting, cultural, or artistic events; on television and radio and in newspapers; and any other publications including billboards and the internet. (Id. art. 9(1).) Effective January 1, 2019, the prohibition also applies to the sponsoring of events, activities, programs, products, or services and any other form of communications with a promotional content. (Id.) The sole exceptions are national lotteries established by law, and the logos on safe and responsible gaming approved by the Customs and Monopolies Agency. (Id.) The law sets forth administrative fines for each violation. (Id. art. 9(2).)
Measures on Fiscal Simplification: The Redditometro
The Redditometro is an instrument through which the state determines the presumed income of taxpayers on the basis of their expenses during the fiscal year. (Redditometro, CORRIERE DELLA SERA (last visited Aug. 27, 2018).) The law amends existing legislation to add that in the determination of the presumed income through the Redditometro, the respective government agencies must include the opinion of the National Statistical Institute (ISTAT, in Italian) and the most representative consumer associations. (Id. art. 10(1).)
(Aug. 30, 2018) The Diet (Japan’s Parliament) passed an act in June 2018 to amend the Civil Code and other laws (Act No. 59 of 2018, KANPOU [OFFICIAL GAZETTE] Extra Ed. No. 132, at 6 (June 20, 2018), National Printing Bureau website (in Japanese)) to lower the age of adulthood to 18 (CIVIL CODE, as amended by Act No. 59 of 2018, art. 4). The Amendment Act will become effective on April 1, 2020. (Act No. 59 of 2018, Supp. Provisions, art. 1.) Currently, the age of adulthood in Japan is 20. (CIVIL CODE, Act No. 89 of 1896, amended by Act No. 44 of 2017, art. 4, Japanese e-Government website (English translation of the Act as amended by Act No. 78 of 2006).)
The voting age in Japan was lowered from 20 to 18 by a 2015 amendment to the Public Offices Election Act. (Sayuri Umeda, Japan: Voting Age Lowered from 20 to 18, GLOBAL LEGAL MONITOR (June 24, 2015).) Two national elections for each house of the Diet have been held since the amendment became effective. (House of Representatives Election, YOMIURI ONLINE (in Japanese) (last visited Aug. 27, 2018); House of Councillors Election, YOMIURI ONLINE (in Japanese) (last visited Aug. 27, 2018).)
Concerns remained in the country that 18- and 19-year-olds would lose important protections if they were regarded as adults. For example, when a minor makes a contract, such as a credit card contract, without a legal guardian’s approval, they can cancel the contract. (CIVIL CODE art. 5.) But regarded as adults, 18- and 19-year-olds cannot cancel contracts when they are targeted by bad businesses. However, lawmakers have rectified this issue by strengthening consumer protections. (Age of Adulthood Expected to Be Lowered to 18 in April 2022 but Concerns Remain, MAINICHI (Mar. 14, 2018).)
The smoking and drinking ages were not changed. The titles and provisions of the Act Prohibiting Underage Smoking (Act No. 33 of 1900) and the Act Prohibiting Underage Drinking (Act No. 20 of 1922) were changed by replacing the word “underage” with the phrase “persons younger than twenty years of age.” (Act No. 59 of 2018, Supp. Provisions, arts 6 & 7.)
(Aug. 30, 2018) On July 27, 2018, Burundi’s education ministry reversed a month-old school pregnancy ban, which had prevented pregnant teens and young mothers, as well as the boys who made them pregnant, from being part of the formal education system. (Nita Bhalla, Burundi Reversing School Pregnancy Ban Not Enough to Protect Girls: Campaigners, REUTERS (July 31, 2018).)
In a directive to the country’s provincial education directors dated June 26, 2018, Dr. Janvière Ndirahisha, Burundi’s Minister of Education, announced that pregnant teens and young mothers, as well as the boys who made them pregnant, no longer had the right to be allowed into public or private schools, although they would be allowed to attend professional training courses. (Nita Bhalla, Burundi School Ban on Expectant Teens “Skewed” Against Girls’ Education, REUTERS (July 4, 2018).)
Campaigners and human rights groups were quick to condemn the ban. Indeed, Naitore Nyamu-Mathenge, a lawyer from the human rights campaign group Equality Now, explained that the ban “disproportionately affects girls as it is skewed towards an abuse of the girls’ rights to education.” (Id.)
Government officials did not give a reason for repealing the controversial policy but may have done so in response to global criticism and numerous violations to national and international laws. (Burundi Reversing School Pregnancy Ban Not Enough to Protect Girls: Campaigners, supra.)
Although local human rights groups welcomed Burundi’s U-turn on its recent ban, campaigners suggest more should be done to curb sexual exploitation and teen pregnancies. (Id.) According to the United Nations Population Fund (UNFPA), 40% of victims of physical or sexual violence in Burundi are teenage girls, about 11% of girls aged 15–19 are sexually active, and 7% have had at least one child. (Queen Nyeniteka, “I Dream of Saving Lives,” UNFPA: EAST AND SOUTHERN AFRICA (Oct. 28, 2016).)
Prepared by Sarah Ettedgui, Law Library intern, under the supervision of Nicolas Boring, Foreign Law Specialist.
(Aug. 29, 2018) On August 15, 2018, the New Zealand Parliament passed the Overseas Investment Amendment Bill (the Bill), which includes provisions that will generally prohibit foreign residents from purchasing existing residential land in New Zealand by categorizing it as “sensitive land.” (Overseas Investment Amendment Bill, PARLIAMENT OF NEW ZEALAND (last visited Aug. 23, 2018); Overseas Investment Amendment Bill 5-4, New Zealand Legislation website.)
The Overseas Investment Act 2005, which was amended by the Bill, requires that overseas people “get consent through the Overseas Investment Office (OIO) before they can invest in New Zealand’s sensitive land, significant business assets and fishing quota.” (Overseas Investment, LAND INFORMATION NEW ZEALAND (last updated Mar. 14, 2017). See also Overseas Investment Act 2005, s 10, New Zealand Legislation website.) Proposed investments must meet certain criteria in the Act. (Overseas Investment Act 2005, s 16.) Overseas persons can currently purchase residential land provided they satisfy certain criteria related to the benefits to New Zealand arising from the purchase. (Id. s 17.) An overseas person is “an individual who is neither a New Zealand citizen nor ordinarily resident in New Zealand” or a corporate entity that is 25% or more owned by an overseas person or persons. (Overseas Investment Act 2005, s 7.)
The Bill will add “residential land” to schedule 1 of the Act, which lists property that is considered to be “sensitive land.” (Overseas Investment Amendment Bill 5-4, cl 5.) According to the Finance and Expenditure Committee’s report on the Bill, the Bill
provides that overseas investors could only obtain consent to buy residential land (that is not otherwise sensitive) in certain situations. They are, broadly:
if they would be developing the land and adding to New Zealand’s housing supply
if they would use the land for non-residential purposes or a residential purpose relating to a core business purpose (for example, accommodating pilots at a remote airport)
if they held an appropriate visa and could show they had committed to reside in New Zealand. (Overseas Investment Amendment Bill 5-3, as reported from the Finance and Expenditure Committee, Commentary.)
The changes will apply to persons who are not “ordinarily resident” in New Zealand, or are not New Zealand citizens. The definition of “ordinarily resident in New Zealand” in the Bill includes persons who hold a residence class visa and who have been residing in New Zealand for at least the previous twelve months. They must also be a tax resident and have been present in New Zealand for at least 183 days during the previous twelve months. Alternatively, a person can hold a residence visa and either be domiciled in the country or be residing there and have the intention of doing so indefinitely. (Overseas Investment Amendment Bill 5-4, cl 7(4).)
According to the government’s explanatory note that accompanied the original version of the Bill, the changes
will lead to a housing market with prices shaped by New Zealand-based buyers. The Bill will therefore make homes more affordable for New Zealand buyers at some times in the property market cycle, including for first home buyers, while also supporting our efforts to build a more productive economy, by helping redirect capital to productive uses. (Overseas Investment Amendment Bill 5-1, Explanatory Note.)
The Minister in charge of the Bill, David Parker, stated that ”[t]his Government believes that New Zealanders should not be outbid by wealthier foreign buyers. Whether it’s a beautiful lakeside or ocean-front estate, or a modest suburban house, this law ensures that the market for our homes is set in New Zealand not on the international market.” (Jessica Long, Labour’s Bill to Curb Foreigners Buying New Zealand Homes Becomes Law, STUFF.CO.NZ (Aug. 15, 2018).)
Critics have argued, however, that foreign buyers only make up a small percentage of the market and banning foreigners from purchasing homes will not have an impact on house prices. (Id.)
The Bill will come into effect two months after it receives royal assent, or earlier by an Order in Council. (Overseas Investment Amendment Bill 5-4, cl 2.)
Democratic Republic of the Congo: Party Names Ex-warlord for Presidential Election Following ICC Acquittal
(Aug. 29, 2018) On June 8, 2018, the International Criminal Court (ICC) Appeals Chamber acquitted Jean-Pierre Bemba Gombo, former vice president of the Democratic Republic of the Congo (DRC), of the charges of war crimes and crimes against humanity. (Press Release, ICC, ICC Appeals Chamber Acquits Mr. Bemba from [sic] Charges of War Crimes and Crimes Against Humanity (June 8, 2018).) On July 6, 2018, his party, the Mouvement de Libération du Congo (MLC), unanimously renewed Bemba as national president of the MLC and named him as their presidential candidate for the DRC’s next presidential election planned for December 23, 2018. (Party Names Ex-warlord Bemba Candidate for DR Congo Presidential Poll, THE EASTAFRICAN (July 13, 2018); John Wessels, DR Congo Opposition Leader Bemba Nominated for Presidential Election, FRANCE 24 (July 13, 2018).)
Pre-trial Chamber and Alleged Crimes
Bemba’s trial started on November 22, 2010, and the Pre-trial Chamber considered there were substantial grounds to believe that during an armed conflict in the Central African Republic (CAR) from October 26, 2002, to March 15, 2003, between MLC forces and a CAR rebel movement led by Francois Bozizé,
- MLC forces, led by Bemba, committed crimes against the civilian population, including rape, murder, and pillaging;
- the attack against civilians was widespread and systematic, since it was carried out on a large scale and targeted a significant number of civilian victims;
- Bemba, as president and commander in chief of the MLC, effectively acted as a military commander and had authority and control over MLC troops; and
- Bemba knew that MLC troops were committing crimes and did not take all necessary and reasonable measures within his power to prevent or repress their commission.
(The Prosecutor v. Jean-Pierre Bemba Gombo: Alleged Crimes (Non-exhaustive List), ICC (last visited Aug. 27, 2018.)
Under the Rome Statute of the ICC, a military commander may be held criminally responsible for crimes committed by forces under his effective command, control, or authority “as a result of his failure to exercise control properly over such forces.” (Rome Statute of the International Criminal Court, July 1, 2002, art. 28(a).)
Trial Chamber III and Appeals Chamber Decisions
On March 21, 2016, Trial Chamber III of the ICC declared, in a unanimous decision, that Bemba was guilty beyond any reasonable doubt of two counts of crimes against humanity (murder and rape) and three counts of war crimes (murder, rape, and pillaging). (Press Release, ICC, ICC Trial Chamber III Declares Jean-Pierre Bemba Gombo Guilty of War Crimes and Crimes Against Humanity (Mar. 21, 2016).)
The Chamber concluded beyond a reasonable doubt that Bemba was effectively acting as a military commander who knew that the MLC forces under his authority and control were committing or were about to commit the crimes charged as per article 28(a) of the ICC Rome Statute. (Id.) Additionally, he failed to take all necessary and reasonable measures to prevent or repress the commission of the crimes. (Id.)
However, on June 8, 2018, the Appeals Chamber of the ICC reversed the Trial Chamber III’s decision and found, by majority, that it had erred on two issues:
- It had erroneously convicted Bemba for specific criminal acts that were outside the scope of the charges as confirmed.
- In its assessment of whether Bemba took all necessary and reasonable measures to prevent, repress, or punish the commission by his subordinates of the other crimes within the scope of the case, the Trial Chamber made serious errors. (ICC Appeals Chamber Acquits Mr. Bemba, supra.)
Indeed, the majority of the Appeals Chamber argued that Bemba could not be held responsible for the actions of his men and that the lower court “ignored the testimony of witness P36 … resulting in the ‘mixed’ composition of the Mondonga Inquiry … and [the MLC’s investigative efforts were] thus indicative of the fact that Mr. Bemba’s power to investigate crimes committed in the CAR was limited.” (Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 A, Judgment on the Appeal of Mr. Jean-Pierre Bemba Gombo, ¶ 172 (June 8, 2018.), ICC website.
On that basis, the Appeals Chamber concluded that Bemba’s conviction must be reversed and that he could not be held criminally liable under article 28(a) of the ICC Rome Statute for the crimes committed by MLC troops during the CAR operation. (Id. ¶¶ 195–198.)
However, Judge Monagen and Judge Hofmanski (dissenting) would have confirmed Bemba’s conviction. (ICC Appeals Chamber Acquits Mr. Bemba, supra.) In their view, the majority reached its conclusion on the basis of an incorrect standard of appellate review. (Id.)
While the majority held that findings of fact that can be reasonably called into doubt must be overturned, Judges Monagen and Hofmanski maintained that appellate courts must rule on questions of how the law is interpreted and applied, turning to questions of fact only when such facts cannot, as a matter of law, stand as interpreted by the trial court. (Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 A, Dissenting Opinions of Judge Monagen and Judge Hofmanski, ¶ 15 (June 6, 2018), ICC website; Kerstin Carlson, Bemba Acquittal Overturns Important Victory for Sexual Violence Victim, THE STAR (July 16, 2018).)
Although the Appeal’s Court overturned Bemba’s 2016 conviction, the ICC is due to issue a ruling in a separate case in which Bemba was sentenced to one year in prison and fined EUR300,000 (about US$346,700) on March 22, 2017, for bribing witnesses during his main war crimes trial. (ICC, Case Information Sheet: The Prosecutor v. Jean-Pierre Bemba Gombo et al., ICC-01/05-01/13 (last updated June 2018).) However, since Bemba has already spent a decade behind bars, legal experts expect him to be released definitively if his time in jail is taken into account. (Party Names Ex-warlord Bemba Candidate for DR Congo Presidential Poll, supra.)
Upcoming Presidential Election
As previously mentioned, following Bemba’s acquittal, the MLC named him as their presidential candidate for the upcoming election in December. (Wessels, supra.) The DRC has been ruled by Joseph Kabila since 2001, despite a two-term constitutional limit that expired in December 2016, under a constitutional clause that enables him to remain in office until the election of his successor. (Id.) Kabila recently announced he would not run in the December 23 election, with Former Interior Minister Emmanuel Ramazani Shadary running in his place. (Lisa Lambert, U.S. Commends Congo’s Kabila for Not Seeking Another Term, REUTERS (Aug. 9, 2018).)
Prepared by Sarah Ettedgui, Law Library intern, under the supervision of Nicolas Boring, Foreign Law Specialist.
(Aug. 28, 2018) On May 31, 2018, the State Council (China’s cabinet) issued a circular on the making of normative documents, which are regulatory documents issued by the government that are not formal regulations as regulated by China’s Law on Legislation, but still impose binding obligations on individuals and legal entities. (Guowuyuan Bangongting Guanyu Jiaqiang Xingzheng Guifanxing Wenjian Zhiding he Jiandu Guanli Gongzuo de Tongzhi [State Council General Office Circular on Strengthening the Formulation and Supervision of the Management of Administrative Normative Documents] (Guo Ban Fa  No. 37, May 31, 2018), State Council website (in Chinese).)
As the making of normative documents is not governed by the Law on Legislation, government authorities have, until now, formulated their own procedures for handling these documents. (Laney Zhang, A Guide to Chinese Legal Research: Administrative Regulations and Departmental Rules, IN CUSTODIA LEGIS (Apr. 8, 2014).)
The Circular provides the definition of normative documents and procedures of their formulation and publication. According to the Circular, normative documents
- are official documents formulated and published by government administrative organs in accordance with legally specified powers and procedures,
- are not State Council administrative regulations, decisions, decrees, departmental rules, or local government rules,
- involve the rights and obligations of citizens, legal persons, and other organizations, and
- have general binding force that are repeatedly applicable within a certain period of time. (State Council General Office Circular, supra. )
Regarding the formulation of normative documents, the Circular calls for more public consultation in the drafting process. It requires, for example, drafts of all documents that “involve vital interests of the people” or “have significant impact on the rights and obligations of citizens, legal persons, and other organizations” to be published for public comment, except for those documents that “must be kept confidential according to the law.” (Id. (translation by author).)
According to the Circular, upon being passed or approved, normative documents must be made open to the public in a timely manner and not be circulated only internally within the government. Moreover, documents that have not been published should not serve as the basis of the government’s administrative practice. (Id.)