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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.

Egypt: Constitutional Court Grants Coptic Christians the Right to Paid Leave for Pilgrimage to Jerusalem

(Feb. 17, 2017) On February 5, 2017, the Supreme Constitutional Court of Egypt rendered a decision granting Coptic Christians who are civil servants the right to paid work leave for one month to make a pilgrimage to Jerusalem.  (Egypt Court Rules Coptic Christians, Like Muslims, Have Right to Paid Holidays for Pilgrimage, EGYPTIAN STREETS (Feb. 8, 2017).)

The Court stated that the Civil Service Law discriminates against Coptic Christians.  (Id.)  While article 51(1) of Law No. 81 of 2016 on the civil services grants Muslim civil servants the right, once in a career, to paid leave of 30 days to conduct a pilgrimage to Mecca, it denies the same right to Coptic Christians who are interested in visiting the city of Jerusalem, for the purpose of a religious pilgrimage to Christian holy sites.  (Law No. 81 of 2016, 43a AL-JARIDA AL-RASSMYAH (Duplicate) (Nov. 1, 2016) (in Arabic).)

The Court also asserted that article 51(1) is in violation of articles 4 and 9 of the Egyptian Constitution of 2014.  Article 4 of the Constitution states that the people are the guardians of national unity, which is based on the principles of equality, justice, and equal opportunity among citizens.  Article 9 provides that the state ensures equal opportunity for all citizens without discrimination.  (Constitution of the Arab Republic of Egypt (2014), State Information Service website (unofficial translation).)

Reaction to the Decision 

Human rights activists and legal scholars praised the court decision.  Naguib Gobrail, the lawyer who filed the lawsuit three years ago that resulted in this ruling, stated that the decision is an unprecedented victory for the rule of law that eliminates religious discrimination against Coptic Christian civil servants.  (Taha Sakr, Will It Be Easy for Coptic Egyptians to Go on Pilgrimage to Jerusalem?, DAILY NEWS (Feb. 5, 2017).)

Background

Coptic Christians were banned from visiting Christian holy sites in the city of Jerusalem by the late Coptic Christian Pope, Pope Shannoda III, in 1980, and by a ministerial resolution issued by the Egyptian Minister of the Interior (equivalent to the U.S. Department of Homeland Security) in 2010. (Id.)  On February 2, 2010, moreover, the Administrative Judicial Court of Egypt, the country’s adjudicative body for administrative disputes related to presidential and ministerial decisions, upheld this resolution issued by the Minister of the Interior to prevent Christians living in Egypt from visiting the Church of the Resurrection and the Church of the Nativity in Jerusalem.  (George Sadek, Egypt: Administrative Court Prohibits Christians from Visiting Churches in Jerusalem, GLOBAL LEGAL MONITOR (Mar. 24, 2010); see also The Administrative Court Upheld a Ministerial Resolution Preventing Coptic Christians from Going to Jerusalem, AL JARIDA (Mar. 2, 2010) (in Arabic).)

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Israel: Law on the Regulation of Settlement in Judea and Samaria

(Feb. 16, 2017) On February 6, 2017, the Knesset, Israel’s parliament, passed a law for the regulation of settlements on land in Judea and Samaria (the West Bank).  (Law on Regulation of Settlement in Judea and Samaria, 5777-2017, SEFER HAHUKIM [BOOK OF LAWS, SH] (the official gazette) No. 2604 p. 394 at 410 (Feb. 13, 2017), available at Ministry of Justice website (scroll to issue no. 2604).)  The land in Judea and Samaria subject to regulation is defined as that on which Israeli settlements were built “in good faith” or “with the consent of the state.”  (Id. § 3.)

The law provides for registration of land ownership under the name of the government official in charge if ownership has not otherwise been identified.  (Id. § 3(1).)  Additionally, it provides for the expropriation of the rights to use and possession of privately owned land in the region.  Such expropriation will be in effect until a political resolution on the status of the West Bank is achieved.  (Id. § 3(2).)  Landowners whose property rights have been affected will be compensated monetarily or by grant of alternative land.  (Id. § 8.)

The law provides for the establishment of an assessment committee for the determination of the appropriate value of the use of privately owned land expropriated in accordance with the law’s provisions, after hearing the owner’s claims.  (Id. § 9.)  The law further requires the establishment of an appellate committee to review appeals of decisions made by the assessment committee.  (Id. § 10.)

With effect from the date of publication, the law suspends all pending administrative orders for the evacuation and destruction of settlements subject to regulation until the expiration of such orders upon the completion of planning procedures for land subject to regulation under the law’s provisions.  The suspension and expiration requirement does not apply to orders issued for the implementation of judicial decrees or court decisions.  (Id. §§ 6-7.)  An appendix to the law lists 16 specific settlements for which all pending enforcement and administrative orders must be suspended and authorizes the Minister of Justice, with the approval of the Knesset Constitution, Law, and Justice Committee, to add additional settlements to this list by means of a decree.  (Id. § 11 & Appendix.)

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Japan: Act on Promotion of Use of Bicycles

(Feb. 16, 2017) The Act on Promotion of the Use of Bicycles was promulgated on December 16, 2016.  (Act No. 113 of 2016, KANPO, Extra Ed. No. 278 (Dec. 16, 2016) at 38 (in Japanese).)  The Act will be effective within six months of the promulgation date.  (Id. Supp. Provisions, art. 1.)  This is the third act that is dedicated to bicycles.  The other two bicycle laws are the Act on Development of Bicycle Paths (Act No. 16 of 1970) and the Act on Comprehensive Promotion of Safety of Biking and Parking Spaces for Bicycles (Act No. 87 of 1980).

The new Act recognizes that:

  1. The bicycle is an environmentally friendly transportation device;
  2. Bicycles are reliable transportation devices during natural disasters; and
  3. Biking benefits riders’ health.  (Id. art. 1.)

Based on the Act, a Bicycle Promotion Headquarters is established under the jurisdiction of the Ministry of Land, Infrastructure and Transport.  (Id. art. 12.)  The national government is obligated to create a Bicycle Promotion Plan.  (Id. art. 9.)  The Plan will include measures for the development of bike paths and bike parking spaces, the facilitation of bike rental businesses, and the development of a system to utilize bicycles during disasters, among other subjects.  (Id. art. 8.)  Prefectural and municipal governments are encouraged to make similar plans.  (Id. arts. 10 & 11.)

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Australia: Bill Passed Requiring Notification of Data Breaches

(Feb. 15, 2017) On February 13, 2017, the Australian Senate voted to pass the Privacy Amendment (Notifiable Data Breaches) Bill 2016 (Parliament of Australia website). The House of Representatives had passed the bill on February 7, 2017.

The Office of the Australian Information Commissioner (OAIC) currently has a voluntary notification system for data breaches and has published best practice guidance on handling them. (OAIC, Data Breach Notification – A Guide to Handling Personal Information Security Breaches (Aug. 2014).)

Background

The establishment of a data breach notification requirement was recommended by the Australian Law Reform Commission (ALRC) in its 2008 report titled For Your Information: Australian Privacy Law and Practice (ALRC Report 108 (Aug. 2008)). The Parliament has since enacted amendments to the Privacy Act 1988 (Cth) to implement many of the Commission’s recommendations, but these did not include a mandatory notification system for data breaches. (See Kelly Buchanan, Australia: New Privacy Law Comes into Effect, GLOBAL LEGAL MONITOR (Mar. 21, 2014).) The previous government had introduced legislation on this issue in 2013, but it failed to gain sufficient support prior to the election that year.  (Privacy Amendment (Privacy Alerts) Bill 2013, Parliament of Australia website.)

The current government again took up the issue in 2015, following a report by the Parliamentary Joint Committee on Intelligence and Security, which recommended the “introduction of a mandatory data breach notification scheme.” (Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, at xxv (Feb. 27, 2015); Press Release, George Brandis & Malcolm Turnbull, The Australian Government has Responded to the Inquiry of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) into the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (Mar. 3, 2015), Attorney-General for Australia website.) In December 2015, the Attorney-General’s Department released a discussion paper and exposure draft of a serious data breach notification bill for public comment. (Serious Data Breach Notification, ATTORNEY-GENERAL’S DEPARTMENT (last visited Feb. 13, 2017).) The resulting bill was introduced in the Parliament in October 2016.

The Explanatory Note for the 2016 bill recognizes international developments since the ALRC’s report, including that “[i]n the United States, 47 states, the District of Columbia and three territories have implemented mandatory data breach notification” and a national standard had been proposed by President Obama in January 2015. In addition, ”the European Union has introduced regulations that mandate data breach notification. In May 2014, New Zealand announced plans to introduce a two-tier mandatory data breach notification scheme. On 16 June 2015, Canada passed legislation to introduce a national mandatory data breach notification scheme.” (Privacy Amendment (Notifiable Data Breaches) Amendment Bill 2016: Explanatory Note 9 (George Brandis) (Oct. 2016).)

Features of the Bill

The 2016 bill amends the Privacy Act 1988 (Cth) (Federal Register of Legislation) “to introduce mandatory data breach notification provisions for agencies, organisations and certain other entities that are regulated by the Privacy Act.”  (Explanatory Note, supra, at 2. ) Under the amendments, organizations must report an “eligible data breach” to the OAIC and notify affected customers immediately.  An eligible data breach occurs “where personal information held by an entity is subject to unauthorised access or unauthorised disclosure and a reasonable person would conclude that the access or disclosure would be likely to result in serious harm to any of the individuals to whom the personal information relates.” (Id. at 59; Privacy Amendment (Notifiable Data Breaches) Bill 2017, sch 1 item 3, inserting new section 26WE(2), Parliament of Australia website.)

There is an exception for situations where the entity takes remedial action before the access or disclosure results in serious harm. (Privacy Amendment (Notifiable Data Breaches) Bill 2017, sch 1 item 3, inserting new section 26WF.) Other exceptions relate to law enforcement-related activities and the application of secrecy provisions in other laws. (Id. sch 1 item 3, inserting new sections 26WN & 26WP.)

The bill specifies that the statement to the OAIC must include a description of the data breach, the kinds of information involved, and recommendations for steps that those affected should take in response to the incident. (Id. sch 1 item 3, inserting new section 26WK.) Affected individuals must then be notified of the contents of the statement. (Id. sch 1 item 3, inserting new section 26WL.) The OAIC may also direct an entity to provide notification of an eligible data breach that it believes to have occurred. (Id. sch 1 item 3, inserting new section 26WR.) A failure to notify that is found to constitute a serious interference with privacy under the Privacy Act 1988 (Cth) can be penalized with a fine of up to AU$360,000 for individuals and AU$1.8 million for organizations (about US$274,560 and US$1.37 million, respectively). (Id. sch 1 item 2, inserting new section 13(4A); Privacy Act 1988 (Cth) s 13G; Crimes Act 1914 (Cth) ss 4AA & 4B, Federal Register of Legislation.)

The amendments will come into effect one year after the bill receives Royal Assent, during which time the OAIC will be working with businesses and agencies to prepare for the commencement of the notification system. (Press Release, Timothy Pilgrim, Mandatory Data Breach Notification (Feb. 13, 2017), OAIC website.)

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Kenya: High Court Declares Penal Code Provision on Criminal Defamation Unconstitutional

(Feb. 14, 2017) On February 6, 2017, the Constitutional and Human Rights Division of the High Court of Kenya at Nairobi found unconstitutional article 194 of the country’s 1930 Penal Code, which relates to criminal defamation.  (Jacqueline Okuta & another v Attorney General & 2 others [2017] eKLR, Kenya Law website.)  Two individuals, Jacqueline Okuta and Jackson Njeru, who were on two separate occasions each arraigned on criminal defamation charges for posting items on the Facebook page Buyer beware-Kenya, brought the petition challenging the legality and continued enforcement of the provision.  (Id. at 2.)  The challenge relied on two provisions of the 2010 Kenyan Constitution: the freedom of expression clause and the limitation of rights and fundamental freedoms clause.  (Id. at 3; The Constitution of Kenya (2010), §§ 24 & 33, Embassy of the Republic of Kenya, Washington D.C.website.)

The Penal Code

The Penal Code states, “[a]ny person who, by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed libel.”  (Penal Code of 1930, art. 194, Cap. 63 (Aug. 1, 1930), Kenya Law website.)  The Code defines the term “defamatory matter” as a “matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation; and it is immaterial whether at the time of the publication of the defamatory matter the person concerning whom the matter is published is living or dead.”  (Id. art. 195.)  The general punishment imposed on conviction for a misdemeanor, including defamation, is a maximum of two years in prison and/or a fine.  (Id. art. 36.)

The Constitutional Provisions on Freedom of Expression

The Bill of Rights chapter in the 2010 Kenyan Constitution includes a freedom of expression clause.  The first  part of this clause states, ”[e]very person has the right to freedom of expression, which includes … [the] freedom to seek, receive or impart information or ideas; … freedom of artistic creativity; and … academic freedom and freedom of scientific research.”  (The Constitution of Kenya, art. 33(1).)

However, this right is not absolute.  The second part of the same constitutional provision imposes a limitation on the right to freedom of expression by limiting its application in certain instances.  More specifically, this right to freedom of expression cannot be invoked to protect expression relating to war propaganda, incitement of violence, or hate speech or advocacy of hatred, including ethnic incitement.  (Id. art. 33(2).)  Further, the provision states, ”[i]n the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.”  (Id. art. 33(3).)

The limitation of the rights and fundamental freedoms clause stipulates further limitations on freedom of expression and restrictions on the manner in which such limitations may be put in place.  It states:

(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent  that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including––

 (a)  the nature of the right or fundamental freedom;

 (b)  the importance of the purpose of the limitation;

 (c)   the nature and extent of the limitation;

 (d)  the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and

 (e)  the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

(2)   Despite clause (1), a provision in legislation limiting a right or fundamental freedom—

 (a)  in the case of a provision enacted or amended on or after the Constitution of Kenya effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom,and the nature and extent of the limitation;

 (b) shall not be construed as limiting the right or fundmental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and

 (c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.

(3)  The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.  (Id. art. 24.)

The Ruling

At the outset of its ruling, the Court noted that most rights and freedoms that citizens enjoy are not absolute in nature and that such rights are “subject to limitations that are necessary and reasonable in a democratic society for the realization of certain common good such as social justice, public order and effective government or for the protection of the rights of others.”  (Jacqueline Okuta & another v Attorney General & 2 others, supra.)

The issue in the case revolved around the instances and the degree to which the rights may be limited.  On this, the Court noted that restrictions on freedom of speech must be limited to the prevention of “the expression of thought which is intrinsically dangerous to public interest and [nothing else].”  (Id.)  The Court found that criminal defamation does not fall into that category because it “aims to protect individual interests” and not that of the public.  (Id.)  The Court further noted that a “common way” for ascertaining whether a limitation imposed on a fundamental right or rights is warranted is by undertaking the proportionality test.  (Id.)  It outlined a four-prong proportionality test developed by a number of authors under which a limitation would be permissible.  These are:

[if] (i) [the limitation] is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (“proportionality stricto sensu” or “balancing”) between the importance of achieving the proper purpose and the special importance of preventing the limitation on the constitutional right.  (Id.)

However, the Court noted, even in instances where the limitation may be proportional, imposing a limitation may still be unjustified if doing so would have a severe impact on individuals or groups.  (Id.)

The Court then moved to determine whether it is necessary to criminalize defamation in order to accomplish an ordinarily legitimate purpose.  It split this question into two parts, one relating to the consequence of criminalization and the other to the availability of alternative remedies to dealing with defamation.  (Id.)  With regard to the first question, the Court found that the offence of criminal defamation, while similar to other offences in many ways, is distinctive in that it has a stifling and chilling effect on “the right to speak and the right to know.”  (Id.)  The Court elaborated as follows:

For example it cannot be denied that newspapers and modern communication methods play a vital role in disseminating information in every society, whether open or otherwise. Part and parcel of that role is to unearth corrupt or fraudulent activities, executive and corporate excesses, persons who are dangerous to the society and other wrongdoings that impinge upon the rights and interests of ordinary citizens. It is inconceivable that the citizens, the media and Civil Societies could perform investigative and informative functions without defaming one person or another. The overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain. This, in turn, may result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.  (Id.)

The Court further noted that the gravity of the penalty imposed for this offence adds to the severity of its effect and “is clearly excessive and patently disproportionate.”  (Id.)

With regard to the second question, the Court found that the availability of a civil remedy for defamation means that criminalization of  defamation does not meet one of the elements of the proportionality test, which is “[a]nother very compelling reason for eschewing resort to criminal defamation.”  (Id.)

The Court then held that “the invocation of criminal defamation to protect one’s reputation is … unnecessary, disproportionate and therefore excessive and not reasonably justified in an open society based on human dignity, equality and freedom.  (Id.)  The Court further held that article 194 of the Penal Code is “unconstitutional and invalid to the extent that it covers offences other than those contemplated under Article 33(2)(a)-(d)” and its continued enforcement against the petitioners “would be unconstitutional and/or a violation of their fundamental right to the freedom of expression … .”  (Id.)

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