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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Australia: Privacy Protections Applicable to COVID-19 Contact Tracing App Enacted

(May 29, 2020) On May 15, 2020, the Privacy Amendment (Public Health Contact Information) Act 2020 (Cth) was enacted in Australia. The act adds a new part to the Privacy Act 1988 (Cth) that specifically regulates the use and disclosure of data collected when people download and use the Australian government’s COVID-19 contact tracing mobile phone application, COVIDSafe.

About the App

The COVIDSafe app was launched on April 26, 2020. The app is voluntary to download and uses Bluetooth to detect and record a person’s contacts with other users; it does not record location information. The app generates encrypted references codes for each user and also stores, in an encrypted form, the date, time, and proximity of a user’s contacts on their phone. Users are unable to access this information. User contacts are automatically deleted 21 days after they have been stored on the phone.

When a user tests positive for COVID-19, state and territory health officials who undertake contact tracing will ask the user for permission to upload the data from the app into a central storage system. The information will then be used to support their usual contact tracing processes.

At the end of the pandemic, users will be prompted to delete the app, and all information in the central storage system will also be deleted.

The privacy policy applicable to the app is available online.

Interim Determination

At the time the app was launched, the minister for health issued an interim determination under the Biosecurity Act 2015 (Cth) containing privacy protections that would apply until primary legislation was enacted. The provisions of the determination ensured that data from the app would be used only to support contact tracing efforts; required that users consent to have data from their device uploaded to the data store; prevented app data from being retained or disclosed outside Australia; required that all data in the data store be deleted at the end of the pandemic; and provided that no one can be forced to download or use the app or upload data to the data store. A breach of these requirements was made a criminal offense.

Legislation

The government introduced a bill to enshrine and extend the above protections into law on May 12, 2020. The bill was enacted on May 15, 2020. The resulting Privacy Amendment (Public Health Contact Information) Act 2020 contained additional protections that included providing for the national privacy regulator—the Office of the Australian Information Commissioner (OAIC)—to have oversight of the app data; extending the Privacy Act’s Notifiable Data Breaches provisions to apply to the app data; legally obligating the administrator of the data store to delete registration data on request; setting out a process for data to be deleted at the end of the pandemic; and requiring that the minister for health and the OAIC submit reports regarding the app.

Impact of the App

On May 24, 2020, the minister for health stated that the COVIDSafe app had reached six million downloads (about 23% of the total population) and that it is “helping state and territory public health officials automate and improve manual contact tracing of the coronavirus.” He further stated that “the COVIDSafe app is playing a significant role in Australia’s world-leading health response to the coronavirus pandemic, with several countries having expressed interest in learning from its positive impacts in Australia.”

However, various commentators have raised concerns about the app, including its effectiveness and privacy implications, and have argued that use of the data by state and territory officials has so far been very limited.

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New Zealand: New COVID-19 Public Health Response Legislation Enacted

(May 28, 2020) On May 13, 2020, the COVID-19 Public Health Response Act 2020 was enacted in New Zealand. The act provides a new legal framework for making and enforcing orders containing restrictions and requirements for businesses, gatherings, and movement in response to COVID-19. It was enacted in time for the country’s move to “Alert Level 2” status under the government’s four-level alert system for responding to the pandemic. Previously, the government utilized various orders and other instruments made under existing laws, including the Health Act 1956, Civil Defence Emergency Management Act 2002, and Epidemic Preparedness Act 2006, to make and enforce rules for Alert Levels 3 and 4. New Zealand entered full lockdown, at Alert Level 4, on March 25, 2020, and moved to Alert Level 3 on April 28, 2020.

Upon the introduction of the legislation on May 12, the attorney-general explained that “[t]here will be fewer restrictions under Alert Level 2 but those remaining still need to be enforceable. We don’t want these narrower controls to rely on a National State of Emergency.” Upon its passage by the Parliament on May 13, he stated that “[t]he COVID-19 Public Health Response Act will ensure controls on gatherings of people and physical distancing are still enforceable while narrowing the Police powers from those that applied under Level 3 and Level 4.”

The act empowers the minister of health and director-general of health to make various orders (“section 11 orders”) related to, for example, the movement and association of people, physical distancing, isolation or quarantine, gatherings, medical examinations, provision of information for contact tracing, and specified actions that must be taken on premises or other places. Such orders must be approved by a resolution of the House of Representatives under section 16 of the act and are also disallowable instruments, according to section 17 of the act.

The act provides for various enforcement powers under sections 20 to 25, including powers of entry without a warrant, the power to give directions, powers to close roads and stop vehicles, the power to direct a person to give identifying information, and the power to direct a business to close. It also contains offenses and infringement notice procedures under sections 26 to 32. Offenses may be punished with fines of up to NZ$4,000 (about US$2,480) or imprisonment for up to six months. Infringement offenses may be set out in section 11 orders and are subject to an infringement fee of NZ$300 (about US$186) or a court-imposed fine of up to NZ$1,000 (about US$620).

The act was passed under parliamentary urgency procedures and was the subject of public controversy, both for the speed of its passage and its contents, particularly with respect to the powers of warrantless entry granted to police. In response to these concerns, the government decided to refer the legislation to a parliamentary select committee for review, with the review to be completed within the 90-day period specified in the act, after which Parliament must consider whether to renew the act.

An order made under the act, the COVID-19 Public Health Response (Alert Level 2) Order 2020, came into effect on May 14, 2020. It permits gatherings of up to 10 people, provided those people all know each other (being friends or family) or records are kept to enable contact tracing. Up to 50 people are allowed to gather for funerals. Businesses are required to ensure, to the greatest extent possible, that people entering their premises remain two meters (about 6.6 feet) away from each other unless they are part of a group of fewer than 10 friends or family, although workers can be at least one meter apart, and must keep records for contact tracing purposes.

On May 25, 2020, the government announced that, from May 29, gatherings of up to 100 people will be permitted, including “gatherings at your home, events outside of home and public venues – including church services, weddings and, funerals and tangihanga.” An amendment to the original order was subsequently published on May 27, permitting the larger gatherings and reducing the physical distancing requirements to one meter for businesses, among other amendments.

The May 25 announcement also stated that the cabinet will review the settings for Alert Level 2 on June 8 and will consider a move to Alert Level 1 no later than June 22.

As of May 26, 2020, New Zealand had 22 active cases of COVID-19, with one person hospitalized. The total number of confirmed or probable cases was 1,504, including 21 deaths. Only one new case had been added to that total in the previous week.

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Italy: Update on Measures to Fight the Covid-19 Pandemic

(May 28, 2020) On May 17, 2020, the president of Italy’s Council of Ministers issued a decree containing measures to implement Decree-Laws No. 19 of March 25, 2020, and No. 33 of May 16, 2020, on urgent measures to deal with the COVID-19 pandemic. Additionally, on May 19, 2020, a new ordinance issued by the Presidency of the Council of Ministers governing certain commercial activities in relation to the pandemic took effect in the country.

Further Implementation of Decree-Law No. 19 of 2020

Decree-Law No. 19 of 2020 contained stringent new measures concerning violations of restrictions imposed during the Covid-19 pandemic. As of March 27, 2020, the Council of Ministers was discussing a decree-law to be approved within 15 days that would consolidate all legislation previously enacted to tackle the COVID-19 pandemic. The Decree of May 17, 2020 (Decree) fulfilled this purpose, specifying that all of the restrictive measures included in the consolidated legislation and regulations would be valid until June 14, 2020. (Decree art. 11.1.)

Additionally, the Decree of May 17, 2020, contains 17 addenda dealing with different topics. Addendum 1 approves a protocol between the Italian government and the Catholic Church concerning the reopening of religious venues and events. The protocol addresses diverse topics, including

  • health safety measures to prevent and contain the pandemic, such as taking parishioners’ temperatures on entry and preventing crowded conditions at religious venues;
  • maintaining at least one meter (about 3.3 feet) of distance between persons;
  • use of volunteers to guarantee organized entry into religious facilities;
  • setting up separate entrances and exits to ensure a smooth flow of circulation;
  • mandatory use of face masks at religious sites;
  • prohibiting the entry of persons who have tested positive for COVID-19 or are experiencing a fever equal to or higher than 37.5 degrees Celsius (99.5 degrees Fahrenheit);
  • use of hand sanitizer in the interior of religious facilities;
  • thorough periodic cleaning of places and objects exposed to the public;
  • maintenance of dry holy water fountains;
  • reducing the number of religious ministers during celebrations to a minimum;
  • use of an organist but not choirs;
  • prohibiting exchanges of the sign of peace;
  • additional sanitary measures for distributing and receiving communion;
  • holding confessions in large, airy places guaranteeing both distancing and confidentiality;
  • posting a sign at church entrances indicating the maximum number of participants according to the size of the edifice, among other essential indications.

The protocol provides that ultimate responsibility for ensuring compliance with the aforementioned measures resides with the respective bishop. Bishops may also allow for the celebration of religious events in open places, provided that the dignity of the celebrations is maintained and sanitary rules are followed.

Similar protocols were also signed with other religious entities operating in Italy. (Addenda 2–7.)

The remaining addenda deal with, among other things, safety measures concerning games in which children and adolescents participate, live shows and movies, commercial activities, workplaces, transportation activities, mass transportation means, and guidelines for the reopening of economic and productive activities in the regions and autonomous provinces.

Sale of Face Masks at Tobacco Stores in Accordance with the Ordinance

To ensure that the largest possible number of persons have access to face masks to protect against the spread of COVID-19, the ordinance allows holders of administrative concessions for the resale of tobacco and other monopolistic items covered by the Italian Tobacconists Federation (Federazione Italiana Tabaccai, F.I.T.) to sell face masks to the public. (Ordinance art. 1(1).)

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United States: Appellate Court Orders Dismissal of Palestinian Suicide Bomb Case on Procedural Grounds

(May 27, 2020) On April 14, 2020, the Court of Appeals for the District of Columbia Circuit determined that civil claims against the Palestinian Authority and the Palestine Liberation Organization (the Palestinian defendants) by victims of a suicide bombing could not withstand a procedural challenge to personal jurisdiction. (Shatsky v. Palestine Liberation Org., No. 17-7168, slip op. (Apr. 14, 2020).)

Underlying Lawsuit

The plaintiffs are victims and relatives of victims of a 2002 suicide bombing in the West Bank. They allege that the Popular Front for the Liberation of Palestine planned and executed the bombing, but that the Palestinian defendants are liable for the attack because their support of the Popular Front enabled the bombing. The claims against the Palestinian defendants were brought under the Anti-Terrorism Act.

The lawsuit was commenced in 2002 in the District Court for the District of Columbia. The case initially went through over a decade of procedural complications. The Palestinian defendants defaulted twice for failing to participate in the litigation but were ultimately successful in their efforts to vacate the defaults. During the same period, the Palestinian defendants asserted (through formal motions and informally) that the claims against them should be dismissed for lack of personal jurisdiction because they lacked the “minimum contacts” with the District of Columbia and the United States required by the Due Process Clause. The District Court repeatedly denied dismissal for lack of personal jurisdiction. By 2011, the Palestinian defendants had formally answered the suit and were participating in the litigation. The case proceeded through two years of discovery. In 2013, the Palestinian defendants moved for summary judgment on the merits without raising a procedural challenge to personal jurisdiction.

While the Palestinian defendants’ summary judgment motion was pending, the Supreme Court issued an opinion that clarified the standard for exercising personal jurisdiction over a nonresident corporation or entity. (Daimler AG v. Bauman, 571 U.S. 117 (2014).) Absent exceptional circumstances, that standard is met only when the corporation has a “home” in the forum—that is, a “formal place of incorporation or principal place of business.” On the basis of the clarified standard, the Palestinian defendants moved for reconsideration of their motion to dismiss for lack of personal jurisdiction. The District Court denied reconsideration because the Palestinian defendants had “repeatedly manifested” consent to the Court’s jurisdiction and had thereby forfeited their objection to personal jurisdiction. Nevertheless, in 2017, the District Court granted the Palestinian defendants’ summary judgment motion on the merits, holding that no reasonable jury could find that they had proximately caused the bombing. The plaintiffs appealed to the Circuit Court.

Appellate Review of Personal Jurisdiction

Despite the plaintiffs’ appeal on the merits, the Circuit Court proceeded to reconsider the Palestinian defendants’ long-running argument that the District Court lacked personal jurisdiction over them. After determining that the procedural issue could be properly considered on appeal, the Court addressed the determinative question of whether the Palestinian defendants’ conduct during the litigation amounted to forfeiture of their objection to personal jurisdiction—in other words, did their tactical shift to litigating the case on the merits mean that they had relinquished their procedural challenge? The Court decided that they had not, stating that the Palestinian defendants’ “full litigation of the issue [of personal jurisdiction] at the outset of the case, preservation of the defense in their answer, and efforts twice to seek post-default reconsideration of the district court’s adverse ruling sufficed to preserve the claim.”

Following succinct analysis, the Court concluded that the Palestinian defendants were clearly not at “home” in the District of Columbia or the United States per the standard set by the Supreme Court, as their headquarters, officials, and activities are all in the West Bank. Further, earlier cases against the Palestinian defendants precedentially established that they are not subject to personal jurisdiction in the United States. Having concluded that the District Court never had personal jurisdiction over the Palestinian defendants at any time during the litigation, the Circuit Court vacated the District Court’s summary judgment decision on the merits in favor of the Palestinian defendants and sent the matter down to the District Court with instructions to dismiss the case against the Palestinian defendants for lack of personal jurisdiction.

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Hungary: National Assembly Adopts Act Giving Government Special Powers during Coronavirus Pandemic

(May 26, 2020) On March 29, 2020, Hungary’s National Assembly adopted a special legal regime aimed at “mitigating the consequences of a natural disaster or industrial accident endangering life and property” and preserving the governability of the country in case the National Assembly is not able to meet because of the COVID-19 pandemic. The new law, Act XII of 2020 on the Containment of the Coronavirus (English translation), entered into force on March 31, 2020.

Provisions of the Act

The act empowers the government to rule by decrees during the declared state of danger, suspend the application of certain laws, and “take other necessary extraordinary measures.” (Act § 2.)  Decrees are to remain in force for 15 days but can be extended until the end of the state of danger. (Fundamental Law of Hungary art. 53(3), Apr. 25, 2011, as amended.)

The National Assembly retains right to withdraw the authorization before the end of the state of danger. (Act § 3(2).) The government is obliged to inform the National Assembly or the parliamentary leadership regularly about measures taken to eliminate the state of danger. (§ 4.)

The act specifically addresses the work of the Constitutional Court, stating that it will continue to function during the emergency, although some procedural requirements can be lifted and the justices may participate in court hearings remotely using electronic means of communication. (§ 5(3).) All elections and referenda during the state of danger are suspended, and local elected bodies are to continue their activities for the duration of the state of danger even if their term of service expires. (§ 6.)

The new law amends the Hungarian Criminal Code, adding special punitive measures for violation of the COVID-19 quarantine rules and distribution of fake news concerning the coronavirus. According to the newly introduced amendment, a person found guilty of failing to comply with measures for containing the spread of COVID-19 may be sentenced to a prison term of up to five years. If such a violation results in the death of another person, imprisonment for up to eight years is prescribed. (Act § 10, adding § 322/A to the Criminal Code.) The new law also amends another section of the Criminal Code with a provision stating that “[a] person who, during the period of a special legal order and in front of a large audience, states or disseminates any untrue fact or any misrepresented true fact that is capable of hindering or preventing the efficiency of protection is guilty of a felony and shall be punished by imprisonment for one to five years.” (Act § 10, replacing § 337 of the Criminal Code.)

Prime Minister Victor Orbán emphasized in parliament that he had sought such broad authorization due to the uncertainties surrounding the epidemic.

Expedited Procedure Requested by Government for Adopting the Act 

On March 20, 2020, the Hungarian government submitted to parliament the Bill on Protection against the Coronavirus (Bill T/9790), seeking authorization to extend the state of danger that it had ordered by government decree on March 11, 2020, and requested that this legislation be passed in an urgent manner. If the parliament had agreed to pass this legislation through expedited procedures, the vote on this act would have been scheduled for the following day. According to the parliamentary rules, such a departure from the normal procedure would require the approval of a four-fifths majority of members of parliament (MPs) and the consent of at least some of the opposition MPs. However, the bill ended up being voted on using the regular voting procedure eight days later. Because the government has a constitutional two-thirds majority in parliament, this vote did not require the support of any opposition MPs.

International Reaction

The act was widely criticized by opponents of the government both within and outside of parliament, as well as by representatives of civil society and international organizations. Over 100,000 Hungarian citizens protested against the act in Hungary’s first ever online demonstration.

Amnesty International Hungary, the Hungarian Helsinki Committee, and the Commissioner for Human Rights of the Council of Europe have argued that the bill does not meet the constitutional requirements for a legal emergency order. They are particularly concerned about measures that might be taken by the government that could jeopardize the democratic rights of citizens. As David Vig, Amnesty International’s Hungary director, stated, “[t]his bill creates an indefinite and uncontrolled state of emergency and gives Viktor Orbán and his government carte blanche to restrict human rights. This is not the way to address the very real crisis that has been caused by the COVID-19 pandemic.”

Recent Developments

On May 15, 2020, Prime Minister Orbán stated that he expects that, at the end of May, the government will be able to “return to Parliament the special mandate it was given due to the coronavirus epidemic.” He also defended the government’s decisions as being in accordance with the special legal order that had given authorization to the government and the prime minister to swiftly adopt grave and difficult measures necessitated by the epidemic.

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