25.09.20 – 02.10.20

Greetings! We are pleased to present ‘TeLawgram’, our new weekly segment focussing on events of legal importance – in India and elsewhere. For your ease, we will be providing a brief summary of events, as well as a reading list that explores different points of view. With TeLawgram, we hope to both inform readers and expand the debate. Feel free to peruse our Call for Papers and Webinars Section. Happy Reading!

Week 1

India
International
CfPs and Seminars

India

The Hathras Case

The central issue in the national conversation today is the rape and murder of a 19 year old Dalit woman in the Hathras District of Uttar Pradesh. After almost two weeks in a hospital, she succumbed to her injuries on 29th September 2020. In her dying declaration, she accused four upper-caste men. Concerningly, there are allegations of a compromised investigation by the police.

A video alleged to be the dying declaration of the victim has been sidelined. The police report does not mention details of forensic analysis – whether there was one, or what its findings were. The victim’s body was burnt between 2AM and 2:30AM despite the protestations of her family. While the Uttar Pradesh police maintain that there is no evidence of rape, this claim is contradicted by the MLC report from the hospital where she was admitted. These issues, among others, became so central to the national narrative that the Allahabad HC took suo moto cognizance of the events following the death of the victim.

Suggested Readings: 

1. The Allahabad HC’s order taking suo moto cognizance
2. An open letter by 90 Civil Servants demanding that an SC/ST Atrocities Prevention case be filed against the District Magistrate and the Hathras Police

The Babri Masjid Decision

A special CBI court ruled earlier this week that the demolition of the Babri Masjid was a spontaneous act by anti-national ‘elements’. It acquitted all 32 accused and ruled out criminal conspiracy due to “lack of (any) conclusive evidence”.

The Court was reluctant to accept newspaper reports, as originals had not been produced before it. The photographs were not accepted because there were no negatives, although the person who shot those images testified from the witness box. The court also said that the video footage was not acceptable because the filming was not clear and none of it had been produced in sealed envelopes. The Special CBI Court’s ruling marks the next step in the complex series of litigations following the demolition of the Babri Masjid in 1992.

Suggested Reading:

Click here for the Order.

The Gujarat Factory Notifications Judgement 

In April 2020, six states in India issued  notifications suspending certain provisions of labour laws. Gujarat was one such state which issued a notification allowing factories to pay the workers disproportionately lower wages for extra hours.

In a judgement that comes as much needed relief for the workers whose lives have been in shambles due to the pandemic, the Supreme Court quashed the notification issued by the State of Gujarat. Rejecting the contentions of the respondents, that the Pandemic has created “extreme financial exigencies”, it held that the pandemic would not fall within the definition of “public emergency” as the security of the State was not threatened. The Court stated that the objective of the Factories Act was to ensure occupational health and safety. The court relied on the Directive Principles of State Policy, ruling that the workers must not be the only ones bearing the burden of the pandemic as they form the “backbone” of our economy. Does the ruling of the Apex Court indicate that the DPSPs will be used as an interpretative tool when confronted with statutory language referring to “public emergenc[ies]” that do not threaten the security of the State?

Suggested Readings:

1. Gujarat Mazdoor Sabha v. State of Gujarat, W.P.(Civil) No. 708 of 2020, https://main.sci.gov.in/supremecourt/2020/11439/11439_2020_34_1501_24245_Judgement_01-Oct-2020.pdf. 
2. Labour and Employment Department, Gandhinagar, Notification GHR/2020/92/FAC/142020/346/M3 (July 20, 2020), https://www.labour.gujarat.gov.in/Portal/News/525_1_factories_act.pdf. 
3. Gautam Bhatia, Coronavirus and the Constitution – XXXVII: The Pandemic, Labour Rights, and the Supreme Court’s Judgment in Gujarat Mazdoor Sabha (Oct. 1, 2020), https://indconlawphil.wordpress.com/2020/10/01/coronavirus-and-the-constitution-xxxvii-the-pandemic-labour-rights-and-the-supreme-courts-judgment-in-gujarat-mazdoor-sabha/.

The National Digital Library of India’s Copyright Guide

As India seeks to digitize libraries and increase the accessibility of scholarly works, libraries often face various copyright issues in the intellectual property realm. It was in this light that the National Digital Library of India (NDLI) published its Copyright Guide to assist libraries in lawfully keeping digital copies of works. The Copyright Guide throws light upon the templates to be used for record keeping, the rights of users and, the approach to be taken to balance the moral rights of authors, and the desire to increase accessibility.

The NDLI called for feedback on its Guide by 30th September. Does the Copyright Guide provide clarity regarding the definition of “non-commercial library” under the Copyright Act? Does the Guide provide clarity regarding the templates that must be used for record keeping? Is the Indian Copyright Act keeping up with its foreign counterparts with regard to library exceptions? 

Suggested readings: 

1. Anupriya Donchak, National Digital Library of India’s (NDLI) Copyright Guide (Feedback) Part I (Sept. 29, 2020), https://spicyip.com/2020/09/national-digital-library-of-india-ndlis-copyright-guide-feedback-part-1.html.
2. Anupriya Donchak, National Digital Library of India’s (NDLI) Copyright Guide (Feedback) Part II (Sept. 29, 2020), https://spicyip.com/2020/09/national-digital-library-of-india-ndlis-copyright-guide-part-ii.html.
3. Smriti Mallapaty, India pushes bold ‘one nation, one subscription’ journal-access plan (Sept. 30, 2020), https://www.nature.com/articles/d41586-020-02708-4

The Suggested Readings are intended to be representative and not exhaustive. We will continue to refine and expand this list in order to bring it in line with recent developments

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International

Brazil’s Data Protection Law has come into force

On 18th September 2020, the Lei Geral De Proteção de Dados Pessoais (“General Law for Data Protection” or “LGPD”), the data protection law of Brazil came into force.  Similar to the EU’s General Data Protection Regulation (GDPR), the LGPD requires certain legal bases for processing data and provides Brazilian residents with many enumerated rights over their personal data. The LGPD applies to any processing operation carried out by a natural person or a legal entity, of public or private law, irrespective of the means used for the processing. The law evinces application irrespective of the country where the processor’s  headquarters are located in or the country where the data is located, provided that the processing operations are carried out in Brazil or personal data was collected in Brazil. The LGPD requires consent in situations involving personal data. As per the LGPD’s ‘legitimate interests’ clause, data can be used for purposes other than what the data was originally collected for. While there are several similarities between the LGPD and the GDPR, there are points such as the legal bases and mandatory data breach notifications on which the LGPD goes further than the European legislation.

Suggested Readings:

1. Fabiano Deffenti, Brazil’s Data Protection Law to come into force TODAY (Sept. 18, 2020), http://lawsofbrazil.com/2020/09/18/brazils-data-protection-law/.
2. Luiza Parolin, Brazil’s Data Protection Law (Sept. 23, 2020), https://www.csis.org/blogs/technology-policy-blog/brazils-data-protection-law/
3. What is the LGPD? Brazil’s version of the GDPR, https://gdpr.eu/gdpr-vs-lgpd/ (last visited Oct. 03,2020).
4. H.E. Sussman & M. Rouvalis, Brazil’s LGPD Poised to Take Effect in a Matter of Days, (Sept. 1, 2020), https://blogs.orrick.com/trustanchor/2020/09/01/brazils-lgpd-poised-to-take-effect-in-a-matter-of-days/.

Turkey’s “Social Media Act” has come into force

The Social Media Act came into force on 1 October, 2020. In Turkey, print and broadcast media platforms are already under government control.  Now, the new Act plans on extending the government’s pervasive control over social media as well. As per the Act, foreign social network service providers, whose services are accessed from Turkey more than 1 million times a day are required to appoint a permanent representative in Turkey. The data of users must also be stored within the territory of Turkey. 

They are also required to comply with court orders over the removal of certain content. The new law could see companies facing fines, blocking of advertisements, or have bandwidth slashed by up to 90 percent, which could block people’s access to their sites. All these measures are severely expected to increase censorship, which would be a major blot on the exercise of free expression within the country. Additionally, the amendments introduce a version of the “right to be forgotten”—a concept previously non-existent in Turkish law.

Suggested Readings:

1. Akshita Tiwary, Analysing the Effects of Turkey’s Social Media Regulation Bill (Sept. 17, 2020), https://www.jurist.org/commentary/2020/09/akshita-tiwary-turkey-social-media-bill/.
2. Kayahan Cantekin, Turkey: Parliament Passes Law Imposing New Obligations on Social Media Companies (Aug. 6, 2020), https://www.loc.gov/law/foreign-news/article/turkey-parliament-passes-law-imposing-new-obligations-on-social-media-companies/.
3. S. Araz & E. Campbell, Censorship, streamlined: Turkey’s social media law and the future of free speech online in the Middle East (Aug. 11, 2020), https://www.mei.edu/publications/censorship-streamlined-turkeys-social-media-law-and-future-free-speech-online-middle.

EU launches legal action against UK for breaching BREXIT withdrawal agreement

The European Union has sent legal notice to the United Kingdom for breaching its obligations under the withdrawal agreement. The EU alleges that the UK has breached its international law obligations by not acting in good faith. The UK cannot unilaterally amend an international treaty, and has to adhere to its obligations. The UK government intends to legislate the UK Internal Market Bill, which overrides the Northern Ireland Protocol maintained under the EU-UK Withdrawal Agreement. The draft bill provides goods from Northern Ireland unrestricted access to the UK market, therefore touching upon the issue of trade between the four countries of the UK. This, according to the government, acts as a safety net against possible retaliation by the EU with respect to trade restrictions between Ireland.

Suggested Readings:

1. Christopher Muttukumaru, The UK prepares to breach its International Law obligations under the UK/EU Withdrawal Agreement (last visited Oct. 02, 2020), https://www.fidefundacion.es/The-UK-prepares-to-breach-its-International-Law-obligations-under-the-UK-EU-Withdrawal-Agreement_a1491.html.
2. European Commission, 2020. [online] Available at: <https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1798> [Accessed 1 October 2020].
3. Karim El-Bar, European Commission launches legal action against UK ( Oct. 1, 2020), https://www.aa.com.tr/en/europe/european-commission-launches-legal-action-against-uk/1991900.

Switzerland voters uphold free movement with the European Union

The citizens of Switzerland upheld the mutual freedom to live and travel freely between the European Union countries and Switzerland. The voters rejected a referendum placed by the Swiss People’s Party (SVP) that proposed to limit immigration into Switzerland from EU countries. The Agreement on the Free Movement of Persons (AFMP) is one of the seven bilateral agreements between Switzerland and the EU, which provides EU citizens the freedom to live, work and study in Switzerland. This agreement is a part of a package of seven bilateral agreements, collectively called the Bilateral Agreement I, formed in 1999.

The People’s Party believes Switzerland would benefit from placing restrictions on immigration since it places citizens in line for better access to jobs, social security and helps retain the Swiss identity. However, 62% of citizens voted in favour of maintaining EU relationships. Several referendums had been previously held on the continuation of the AFMP, with the citizens voting for its continuation.

Suggested Readings:

1. Sergio Carrera, Elspeth Guild & Katharina Eisele, No Move without Free Movement: The EU-Swiss controversy over quotas for free movement of persons (April, 2015), https://www.ceps.eu/wp-content/uploads/2015/04/PB331%20EU-Swiss%20Mobility%20.pdf.

2. State Secretariat for Migration SEM, Free Movement of Persons Switzerland – EU/EFTA (June 6, 2019), https://www.sem.admin.ch/sem/en/home/themen/fza_schweiz-eu-efta.html.
3. Switzerland’s European Policy, Bilateral Agreements I (Feb. 2, 2020), https://www.eda.admin.ch/dea/en/home/europapolitik/ueberblick/bilaterale-1.html.  

Thailand initiates legal action against Facebook and Twitter

Thailand’s Ministry of Digital Economy and Society has initiated legal action against Facebook and Twitter for failing to take down certain online content. The Thai government alleges that Facebook and Twitter failed to comply with court orders, mandating the removal of content that purportedly insults the monarchy and spreads fake news. Thailand has strict lese majeste laws under which hefty penalties and fines are imposed on persons speaking against the royal institution. This is the first time cyber laws have been used to curb dialogue against the monarch. As per the orders, a total of 551 posts on Facebook and 69 Twitter posts are to be removed. 

Suggested Readings:

1. iLaw, The Prosecutions Of False Claims With Lèse-Majesté Law, The New Worrying Standard, ( Jan. 13, 2015), https://freedom.ilaw.or.th/en/blog/prosecutions-false-claims-lèse-majesté-law-new-worrying-standard.
2. Wassayos Ngamkham, Govt taking legal action against major social media providers ( Sept. 24, 2020), https://www.bangkokpost.com/thailand/politics/1990975/govt-taking-legal-action-against-major-social-media-providers. 
3. Pavin Chachavalpongpun, Redefining Power: The Politics of Social Media and Information in Thailand (last visited Oct. 01, 2020), https://globalasia.org/v9no4/feature/redefining-power-the-politics-of-social-media-and-information-in-thailand_pavin-chachavalpongpun. 

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CfPs and Seminars

Call for Papers

• Call for Papers for a special issue in the SAGE Journal International Journal of Discrimination and the Law, on COVID-19: Lessons for and from Vulnerability Theory. Submissions Deadline: 31 October 2020·

• The Cambridge Law Review calls for submissions on English law, the law in other common law jurisdictions, European law, and international law; comparative pieces; as well as interdisciplinary legal scholarship that has regard to economics and political studies. ​The deadline is 15 December 2020.   

• The Singapore Law Review calls for papers to be published in the next issue of the Singapore Law Review journal. Submissions for Volume 38 (to be published in 2021) close on 15 December 2020.

• The Baxter Family Competition on Federalism calls for papers for its third edition in early 2021 with the topic: Federalism, Identity and Public Policy in Challenging Times. Submission Deadline: 1 Feb 2021.

• The Washington International Law Journal is currently seeking submissions of articles and translations for its upcoming volumes.

• The KSLR Commercial and Financial Law Blog, part of the King’s Student Law Review is calling for papers. It is an independent, online peer-reviewed academic publication managed by the researchers and law students based at the Dickson Poon School of Law, King’s College London.

Webinars

• Private Equity Transactions Symposium, a virtual conference presented by the Private Equity Subcommittee of the IBA (International Bar Association) Corporate and M&A Law Committee on 7-8 October 2020.

• The Office of Legal Affairs of the United Nations and the German Federal Foreign Office is conducting an online conference on the topic ‘UN at 75: Effective Multilateralism and International Law’, to be held on 9 October 2020.

• The World Commission on Environmental Law is conducting a webinar on Environmental Law in Africa: What is the Role of Civil Society in Environmental Governance? And Fishing on the High Seas and Marine Protected Areas. Date: Tuesday 13 October, Time: 10:00AM -12:30PM Eastern Standard Time (EST).

• The South Asia as part of the London School of Economics engagement programme is conducting an online talk on Colonial Laws And Social Change on Wednesday, 21 October/3-5:00pm UK Time. 

• Global Law at Reading (GLAR) is an initiative by the University of Reading. It has unveiled the programme for the 2020/21 Gandhi Research Seminar Series. GLAR is the home of public international law, EU law and human rights law. The Gandhi Research Seminar Series showcases the work of experts in these fields. It starts from 21 October 2020.