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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.

Sweden: Supreme Court Rules Live Broadcast of Rape Is Aggravated Defamation but Not Violation of Duty to Report Ongoing Rape

(Aug. 8, 2018) On July 2, 2018, the Swedish Supreme Court ruled that a man who had filmed an ongoing rape and broadcast it on Facebook Live was guilty of aggravated defamation (grovt förtal) but not of the crime of failure to report a rape. (Högsta domstolen [Swedish Supreme Court], Case No. B 3552-17 (July 2, 2018), Supreme Court website.) The prosecutor had initially charged the man with failure to report an ongoing rape, aiding in the rape, and aggravated defamation. (Id. ¶¶ 3–4.) Failure to report an ongoing rape is a separate crime in Sweden. (6 kap. 15 § Brottsbalken (BrB) [CRIMINAL CODE], Swedish Parliament website.)

Background

On a night in January 2017, one woman, incapacitated because of alcohol and drug consumption, was consecutively raped by two men while a third filmed and streamed the incident. (Case No. B 3552-17, ¶¶ 1–3.) Subsequently, both the District Court and the Appeals Court convicted the third man of failing to report the crime and of aggravated defamation, but not of aiding in the rape. (Id. ¶¶ 6–8.)

Supreme Court Holding

The Supreme Court found that because the prosecutor had initially prosecuted him for involvement in the crime, it could not also charge the man with failure to report the crime in the alternative, as fear of being charged with an ongoing crime is a legal defense against having to report it. Thus, the Supreme Court held that because the man was charged with aiding in the crime meant he could not be charged with failure to report it. (Id. ¶¶ 15–16.)

Aggravated Defamation Defense

The defendant had argued in defense against the aggravated defamation charge that the broadcast of the rape on Facebook Live was protected by his constitutional rights to broadcast under the Yttrandefrihetsgrundlagen (YGL)—The Fundamental Law on Freedom and Expression. If deemed a constitutionally protected broadcast the action could not have resulted in a conviction of aggravated defamation. Under Swedish law, some broadcasts by private citizens are constitutionally protected. To be constitutionally protected a broadcast must be directed to the public and be viewed as “a program” as defined in the Web Broadcast Rule. (Id. ¶¶ 21, 26; 1 kap. 6 Yttrandefrihetsgrundlagen (YGL) [Fundamental Law on Freedom of Expression], Parliament website.)

The Supreme Court found that in order for a broadcast to constitute a broadcast “program,” the broadcast needs to have a thematic purpose and that not all spontaneous broadcasts could be described as programs. In this case the live streaming on a closed Facebook page could not be considered a program and was thus not constitutionally protected. Accordingly, the broadcast could be considered as aggravated defamation. (Case No. B 3552-17, ¶¶ 28, 29, 32.)

Sentencing

The Supreme Court ruled that the man should be sentenced to four months’ imprisonment, as he had committed the crime while on probation. (Id. Domslut & ¶ 36.)

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Norway: Supreme Court Rules on Boundaries of Hate Speech

(Aug. 7, 2018) On April 12, 2018, the Norwegian Supreme Court issued a judgment under which a person was sentenced to prison for hate speech. (Norges Høyesterett [Norwegian Supreme Court] Dom [Case No.] HR-2018-674-A, Lovdata website; HR-2018-674-A, Supreme Court website.) The Court found that the man, who on August 15, 2015, had repeatedly called another man of Somali descent “*expletive* darky [jaevla svarting]” and “*expletive* negro” (jaevla neger)” had violated the Norwegian provision on hate speech. (NORWEGIAN PENAL CODE, 135a Straffeloven LOV-1902-05-22-10.)

The Penal Code criminalizes hate speech, specifically stating in section 135a that

[a] person who willfully or through gross negligence publicly utters a discriminatory or hateful expression is punishable by fines or imprisonment of up to three years. The use of symbols also counts as an expression. Aiding and abetting is punishable in the same way.

[“]Discriminatory or hateful expression[”] means to threaten or insult anybody, or to promote hate, persecution, or contempt for anyone because of their

  1. skin color, or national or ethnic origin,
  2. religion or faith,
  3. homosexuality, lifestyle, or sexual orientation, or
  4. disability

(§ 135a Straffeloven (translation by author).)

The Penal Code was revised in 2005, and the hate provision in section 135a of the old Code was incorporated into section 185 of the 2005 Penal Code. (NORWEGIAN PENAL CODE, as revised in 2005, § 185, Lovdata website.) Thus, although the crime was committed while the old Code was in force, the precedent of the old Code applies in interpreting the provision in the current Code.

Background

The hate speech occurred after a fight broke out between the two men around 2:30 a.m. in the town of Halden, during which the defendant pushed the Somali man, who retaliated by throwing a baked potato that struck the defendant in the back of his head. (HR-2018-674-A, ¶ 9.) The defendant claimed that his comment was not related to the victim’s skin color or race but should be seen as any other kind of curse word unrelated to the man’s ethnicity. The Supreme Court rejected this argument. (Id. ¶ 13.) The Court also determined that the speech qualified as hate speech according to the provision in the Code because it had clearly been made in public (Id. ¶ 11.)

In a previous case the Court had found that calling a security guard a similar name to that used in the current case was illegal. The Court in that decision noted that the security guard had not in any way provoked the defendant and that security guards as a group were in need of special protection. (Id. ¶ 19.) In this case, the Court likewise found that the comment was clearly derogatory and meant to show disrespect on the basis of color, as specified in section 135a of the Code. But the Court also needed to determine whether “the comment nevertheless is free from punishment because of the [heated] situation under which it was made.” (Id. ¶ 18.) The Court found that it was not. (Id. ¶ 20.)

The verdict clarifies the boundaries of free speech versus hate speech in Norway and makes it clear that terms such as “negro” or “darky” are criminalized no matter in what circumstances they are uttered. The fact that a person of color starts the altercation or escalates a conflict cannot be used as a defense. (Id. ¶ 21.) Thus, under Norwegian law, a person is always protected from derogatory and discriminatory comments based on skin color, ethnicity, sexuality, or disability, even when such comments arise during an argument or fight.

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China: Courts Required to Provide Judicial Process Information Through One Online Platform

(July 31, 2018) China’s highest court, the Supreme People’s Court (SPC), recently released the Provisions on the Publication of Judicial Process Information by People’s Courts on the Internet (SPC Provisions). Entering into effect on September 1, 2018, the Provisions require all courts in China to provide judicial process information through one online platform—the China Judicial Process Information Online— set up by the SPC. (Zuigao Renmin Fayuan Guanyu Renmin Fayuan Tongguo Hulianwang Gongkai Shenpan Liucheng Xinxi de Guiding [SPC Provisions on the Publication of Judicial Process Information on the Internet by People’s Courts] (Mar. 4, 2018, effective Sept. 1, 2018), SPC website, English translation available on the Westlaw China website (by subscription).)

The judicial process information required to be provided on the platform includes information on case filings and closings, prosecutors, organs carrying out criminal punishments, parties to the cases, courts and judges, adjudication procedures, periods of adjudication, services, appeals, and the time and venue of litigation activities. (Id. art. 7.)

Information on the platform is in general restricted to the parties to the cases and their legal representatives, agents, and defense counsels. Courts may, however, decide to make available such information of “cases with major social impact” to the general public. (Id. art. 1.)

The SPC Provisions also encourage courts to implement the use of more electronic tools in providing judicial process information, such as mobile phones, litigation service platforms, voice messages, and emails. (Id. art. 3.) Besides the website, the SPC’s own judicial process information platform, for example, provides information through a mobile phone app, WeChat (a Chinese messaging and social media system comparable to WhatsApp or Facebook), and an official micro blog. (Zuigao Renmin Fayuan Shenpan Liucheng Xinxi Gongkai Wang [SPC Judicial Process Information Network] (last visited July 31, 2018).)

The platform has started running with currently available information on courts of Hebei Province, Jiangsu Province, Qinghai Province, and the Ningxia Hui Autonomous Region. Other courts are gradually uploading their information. (Zhongguo Shenpan Liucheng Xinxi Gongkai Wang [China Judicial Process Information Online] (last visited July 31, 2018).) The SPC has also required Chinese courts to publish their judgments on another SPC platform, China Judgements Online, since 2013. (Homepage, ZHONGGUO CAIPAN WENSHU WANG [CHINA JUDGMENTS ONLINE] (last visited  July 31, 2018); Laney Zhang, China: Rules of Online Publication of Court Judgments Revised, GLOBAL LEGAL MONITOR (Feb. 9, 2017).)

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Germany: New Law Allows Consumer Class Actions

(July 31, 2018) On July 17, 2018, a new law to allow consumer class actions (“model declaratory proceedings”) was published in Germany’s Federal Law Gazette. The Act will enter into force on November 1, 2018. (Gesetz zur Einführung einer zivilprozessualen Musterfeststellungsklage [Act to Introduce Civil Model Declaratory Proceedings], July 12, 2018, Bundesgesetzblatt [BGBl.] [FEDERAL LAW GAZETTE] I at 1151.)

Qualified Institutions to Bring Class Actions

The Act authorizes certain qualified institutions to sue a company on behalf of consumers at the Higher Regional Court (Oberlandesgericht OLG). “Qualified institutions” are defined as institutions that are qualified according to the German Act on Injunctive Relief (UKlaG) to bring representative actions on behalf of consumers and that

  • are composed of at least ten other consumer protection associations or at least 350 natural persons;
  • have been on the list of associations qualified to bring an action under § 4 of the UKlaG or the list of the European Commission for entities qualified to bring an action under article 2 of Directive 2009/22/EC on injunctions for the protection of consumers’ interests for at least four years;
  • in execution of their statutory tasks generally protect consumer interests on a nonprofit basis by carrying out educational or advisory tasks;
  • do not bring model declaratory proceedings for profit; and
  • do not receive more than 5% of their financial resources from businesses.

The Act contains a nonrebuttable presumption that consumer associations that are mainly publicly funded fulfill the aforementioned requirements. (Act to Introduce Civil Model Declaratory Proceedings art. 2, no. 5, § 606, para. 1; Unterlassungsklagengesetz [UKlaG] [Act on Injunctive Relief], Aug. 27, 2002, BGBl. I at 3422, 4346, as amended, German Laws Online website; Notification from the Commission Concerning Article 4(3) of Directive 2009/22/EC of the European Parliament and of the Council on Injunctions for the Protection of Consumers’ Interests, Which Codifies Directive 98/27/EC, Concerning the Entities Qualified to Bring an Action Under Article 2 of this Directive, 2016 O.J. (C 361) 1, EUR-LEX website.)

Admissibility of Consumer Class Actions

The qualified institutions must show that at least ten consumers are affected by the allegations made in the lawsuit. Furthermore, at least fifty consumers must register their claims in the to-be-established claims register for model declaratory proceedings within two months after it has been publicly announced in the claims register that a model declaratory proceeding has been filed. (Act to Introduce Civil Model Declaratory Proceedings art. 2, no. 5, § 606, para. 3.) Other consumers may join the model declaratory proceedings until the end of the day for which the first court date has been set. (Id. art. 2, no. 5, § 608, para. 1.)

From the day that the model declaratory proceeding is pending, no other action may be filed against the same defendant in the same matter. If several actions on the same matter are filed the same day, the court will join the cases. As long as a model declaratory proceeding is pending, individual consumers that registered their claims are enjoined from filing a separate lawsuit against the defendant concerning the same subject matter. (Id. art. 2, no. 5, § 610.)

End of Proceedings

Model declaratory proceedings end either with a settlement or a declaratory judgment. (Id. art. 2, no. 5, §§ 611-613.) Settlements become binding when they are approved by the court and when less than 30% of the registered consumers withdraw from the settlement within the one-month time frame. (Id. art. 2, no. 5, § 610.) A declaratory judgment can be appealed within one month to the Federal Court of Justice (Bundesgerichtshof, BGH). (Id. art. 2, no. 5, § 614.)

Reactions

The German Federal Minister of Justice, Katarina Barley, commented that “[w]hoever is in the right must win his case. The introduction of the ‘one for all lawsuit’ strengthens consumers […] and helps them enforce their rights – for free and fast. […] Examples [include] the Diesel scandal […]. [The ‘one for all lawsuit’] contributes to a democratization of our legal system and strengthens trust in the rule of law.” (Press Release, Bundesministerium der Justiz und für Verbraucherschutz [Federal Ministry of Justice and Consumer Protection], Die „Eine-für-Alle-Klage“ kommt – Bundestag beschließt Gesetz zur Musterfeststellungsklage (MFK) [The “One for All Lawsuit” Is Coming – Parliament Approves Act on a Model Declaratory Proceeding] (June 14, 2018), Federal Ministry of Justice and Consumer Protection website (translation by author).)

The Federal Association of Consumer Associations (Verbraucherzentrale Bundesverband, VZBV) generally welcomed the introduction of model consumer class actions as a “milestone for consumer rights.” However, the VZBV criticized the fact that the requirements for qualified institutions prohibit smaller regional or specialized institutions from filing suits on behalf of consumers, among other things. (Press Release, Verbraucherzentrale Bundesverband [Federal Association of Consumer Associations], Musterfeststellungsklage verabschiedet [Model Declaratory Proceeding Approved] (June 14, 2018), Federal Association of Consumer Associations website.)

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