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Qatar: Anti-Terror Legislation Amended

(Aug. 16, 2017) On July 20, 2017, the Amir of Qatar issued Decree No. 4 of 2017 to amend Law No. 11 of 2004 on combating terrorism. Decree No. 4 of 2017 covers the definition of acts of terrorism.  (Qatar Amir Issues Decree to Amend Provisions of Anti-Terror Law, AL ARABIYA (July 20, 2017).)

Specifically, article 1 of the newly enacted legislation modifies article 333 of Law No. 11 of 2004 on the definition of acts of terrorism. The new article stipulates, “[a]nyone other than those authorized by law who violates the inviolability of the private life of individuals without their consent shall be punished by imprisonment for a period not exceeding two years and by a fine not exceeding 10,000 riyals [about US$2,695].” Under article 333, acts of terrorism include the following:

  1. Destroying a special message or cable addressed to another individual;
  2. Electronically eavesdropping on a phone call or, wiretapping;
  3. Recording or transferring conversations held in a private place, by means of a device of any kind; and
  4. Capturing or transferring pictures or videos of an individual or individuals in a private place, by means of a device of any kind. (Law No. 4 of 2017, Amending Law No.11 of 2004, 4 AL JARIDAH AL-RASMYIAH (Mar. 3, 2017) (in Arabic).)

The recent modification of Law No. 11 of 2004 comes after the signing of a bilateral agreement between the Government of the State of Qatar and the Government of the United States to fight terrorist funding.  (Qatar Amir Issues Decree to Amend Provisions of Anti-Terror Law, supra.)  The agreement lays out a series of steps that each country will take in the coming months and years to interpret and disable terrorist financing and to intensify counter-terrorism activities. (U.S., Qatar Sign Agreement on Combating Terrorism Financing, REUTERS (July 10, 2017).)

Prepared by Abdullah Alkayat Alazemi, Law Library intern, under the supervision of George Sadek,  Legal Research Analyst.

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Afghanistan: Cyber Crime Code Signed into Law

(Aug. 16, 2017) On June 20, 2017, Afghanistan President Mohammad Ashraf Ghani signed into law the Cyber Crime Code, which forms part of the country’s new Penal Code. (Walasmashar Da Internete Jarmono Qanon Tawshih Karry [President Signed the Law of Cybercrimes], PAJHWAK Pashto (June 20, 2017).)  The Penal Code is being drafted by the Law Enforcement and Academic-Legal Research Institute of the Ministry of Justice. (Copy of formal letter from the Institute to the Ministry of Communications and Information Technology [MCIT] (Jawza 24, 1396 [June 14, 2017], received by author from MCIT spokesperson Najeeb Nangial.)

There are 11 different codes and 63 miscellaneous provisions on crime that will be merged into the Penal Code. An advisor to the Ministry of Justice, Mohammad Ashraf Rasoli, says “the new Penal Code of Afghanistan addresses the needs of today’s social and economic environment of Afghanistan, and makes the penalty commensurate with the crime.” (Jazaee Kod Aw Da Afghanistan Par Jazaee Qanon EE Agheeza [The Penal Code for Cybercrimes and Its Impact on Afghanistan’s Penal Code], AZADI RADIO [RADIO LIBERTY] (Sawr 12, 1395 [May 1, 2016]); Tariq Ahmad, Afghanistan: Government Announces New Draft Penal Code, GLOBAL LEGAL MONITOR (July 1, 2016).)

Currently there are more than four million Internet users in Afghanistan, whose population is 34 million. (Afghanistan: Internet Usage, Broadband and Telecommunications Reports, INTERNET WORLD STATS  (last visited July 21, 2017).)  According to Motherboard, a website that reports on advances in information technology, “[t]he telecom sector has substantially grown over the last decade to become one of the largest revenue generating sectors in Afghanistan with annual average revenue of $139.6 million—accounting for more than 12 percent—of total government revenues.” (Ruchi Kumar, As Afghanistan Comes Online, It Grapples with Its First Cybersecurity Law, MOTHERBOARD (Jan. 7, 2017); Javid Hamdard, The State of Telecommunications and Internet in Afghanistan Six Years Later (2006-2012) (Mar. 2012), United States Agency for International Development (USAID).)

Features of the Cyber Crime Code

The hacking of webpages and online defaming of people, especially public figures, are common cyber crimes in Afghanistan and heretofore there has not been a law to regulate Internet use and prosecute cyber criminals. (Da Internete Jarmono Da Makhnewe Qanon Jorrige [A Law Is Enacted to Prevent Cyber-Crimes], SHAMSHAD TV Pashto (Hamal 20, 1396 [Apr. 9, 2017]).)

Section 12 of the Penal Code of Afghanistan comprises provisions on cybercrimes, along with crimes related to health and agriculture. Cyber crimes are defined as crimes that occur in cyberspace through the use of modern technology, information, and electronic communication.  (Letter on Reading the Draft Copy of the Cybercrime Code, Articles 363 and 855- 881, as Part of the New Penal Code of Afghanistan (Draft Cyber Crime Code) (June 21, 2017), art. 855 (author’s copy).)  Crimes of disrupting a computer network,  using of illegal means to access a computer system, programs, and computerized information,  changing or destroying a computer system or the password and security code of the system, or installing viruses in the system may incur a penalty ranging from a fine of AFG600 (about US$9) to short-term , long-term, and even life imprisonment.  (Id. arts. 856, 857, & 858.)  Short-term imprisonment is imprisonment for more than six months up to one year; medium-term imprisonment, one year up to five years; and long-term imprisonment, from five years up to 16 years.  (Penal Code (May 15, 2017), art. 166, Ministry of Justice website (in Pashto & Dari).)  The Penal Code also provides for “continued” imprisonment for a term of 16 years up to 20 years and life imprisonment for from 20 years up to 30 years. (Id.)

The Cyber Crime Code also includes as crimes, punishable with a fine ranging from AFG6,000 to AFG300,000 (about US$89-$4,431) or medium-term imprisonment, the following actions:

  • disclosing the password or security code of an information system (Draft Cyber Crime Code, art. 859);
  • preventing others from having access to an information system (id. art. 860);
  • creating, preparing, and using an information system to commit crimes (id. art. 861);
  • electronic counterfeiting (id. art. 862); and
  • electronic fraud (id. art. 863).

Theft of another person’s Internet service is punishable upon conviction by a fine of twice the amount of the cost of the stolen service.  (Id. art. 865).

Cyber terrorism (id. art. 866), cyber espionage and cyber warfare (id. art. 868), and cyber gambling (id. art. 875) are punishable by the penalties imposed in the other relevant chapters of the Penal Code now being drafted.

Cyber crimes involving personal offenses against individuals include misuse of another person’s identity for committing a crime is punishable with a sentence of medium-term imprisonment (id. art. 869); disclosure of another person’s personal or privacy-related information, punishable with imprisonment for a term of one to three years or a fine of from AFG60,000 to AFG180,000 AFG (id. art. 871); and blackmail, punishable with short-term imprisonment or a fine of AFG30,000 to AFG60,000 (id. art. 872).

For crimes against public morality and chastity, the punishment is a fine of from AFG5,000 to AFG20,000 (about US$74-$295) (id. art. 870), while using cyberspace to broadcast discriminatory remarks and to defame religion are both punishable with a fine of from AFG5,000 to AFG60,000 (id. arts. 873 & 874, respectively). One of the stiffest fines imposed in connection with offenses against social mores is that for disseminating child pornography: medium-term imprisonment of up to two years or a fine of from AFG60,000 toAFG120,000 (id. art. 877).

The new Code protects the online activities of Afghans in general, but has no special provisions to protect the rights of Afghan women, who for the most part cannot use their real names on social media for fear of incurring insulting messages and comments that might harm their own and their family’s reputation.

New Anti-Cyber Attack Unit

To protect official websites and social media pages from cyber attacks by “insurgents” and others, the Ministry of Communications and Information Technology (MCIT) is working on setting up a Cyber Emergency Response Team (CERT) based on consultation with its international counterparts, including U.S. government security agencies. To this end, the Ministry will build a forensics laboratory and provide support to Afghanistan’s Ministry of Information, the National Directorate of Security, and other security agencies. (Kumar, supra.)

Reactions

A former deputy minister of the MCIT, Aimal Marjan, says that, to better enforce the new cybercrime code, the government needs to recruit cyber police and prosecutors and judges who are well-versed in cybercrime law. He added that the government also needs to create a cyber lab equipped with high technology to enhance investigation of the crimes. In Marjan’s view, if the cybercrime code is properly enforced, the misuse of cyber technology, especially social media, would decrease. (Walasmashar Da Internete Jarmono Qanon Tawshih Karry, supra.)

Political activist Naweed Afghan is of the view that the cyber crime law can better protect against harm caused to the national interest by the Internet, especially through the misuse of social media. He stated that the law would ban youths from access to “unethical and non-Islamic websites” and the government would thereby be able to prevent social harm.  (Per Internet the Control and Saar Qanon Somra Mohim Ganny? [How  Important Is the Law on Monitoring and Controlling Use of the Internet?], TATOBAY NEWS (Sawr 3, 1396) [Apr. 4, 2017]).) Rozi Mohammad, a civil society activist in Helmand province, asserts that the new provisions are a highly valuable  addition to the legislation of Afghanistan that frames the use of the Internet.  (Id.)

Prepared by Hijratullah Ekhtyar, Law Library intern, under the supervision of Tariq Ahmad, Foreign Law Specialist.

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Portugal: New Law Further Regulates Surrogate Pregnancy

(Aug. 14, 2017) On July 31, 2017, the Government of Portugal enacted Regulatory Decree No. 6 to further regulate surrogate pregnancy (gestação de substituição), which is governed by Law No. 32 of 2006.  (Decreto Regulamentar No. 6/2017, de 31 de Julho (Regulatory Decree No. 6), DIÁRIO DA REPÚBLICA ELETRÓNIO; Lei No. 32/2006, de 26 de Julho (Surrogacy Law), Procuradoria-Geral Distrital de Lisboa website.)

Surrogate Pregnancy Under the Surrogacy Law

The Surrogacy Law defines surrogate pregnancy as any situation in which a woman is prepared to bear a pregnancy on behalf of another person and to surrender the child after birth by renouncing maternal rights and duties. (Surrogacy Law, art. 8(1).) The Law also establishes that the business relationship of surrogate pregnancy is only possible in exceptional cases and on a gratuitous basis. The cases include the absence of a uterus, injury, or illness that absolutely and definitively prevents the pregnancy of the woman seeking a surrogate or other clinical situations that justify the surrogacy. (Id. art. 8(2).)

Surrogate pregnancy may only be authorized by means of a medically assisted procreation technique using the gametes of at least one of the respective beneficiaries, and in no case may the surrogate mother be the donor of any oocytes used in the procedure. (Id. art. 8(3).) The surrogate pregnancy must be previously authorized by the National Council for Medically Assisted Procreation (Conselho Nacional de Procriação Medicamente Assistida), which oversees the entire process. In addition, the surrogacy is always preceded by a hearing at the Physicians’ Board (Ordem dos Médicos) and may only be approved in the situations described in article 8(2) of Law No. 32. (Id. art. 8(4).)

Any type of payment or donation of any good or amount by the beneficiaries to the surrogate mother is prohibited, except for the amount corresponding to the expenses resulting from the health care provided, including transportation, provided that these expenses are duly described in an appropriate document. (Id. art. 8(5).) Business relationships of surrogate pregnancy are prohibited when there is a relationship of economic subordination, namely labor or service provision, between the parties involved. (Id. art. 8(6).) A child born through surrogate pregnancy is considered to be the son or daughter of the respective beneficiaries. (Id. art. 8(7).)

The business relationship of surrogate pregnancy is established by means of a written agreement, concluded between the parties and supervised by the National Council for Medically Assisted Procreation, in which the parties must compulsorily state, in accordance with the legislation in force, the provisions to be observed should malformations or fetal diseases or the possible voluntary termination of pregnancy occur. (Id. art. 8(10).) The agreement may not impose behavioral restrictions on the pregnant woman, nor impose norms that violate her rights, freedom, and dignity. (Id. art. 8(11).)

Features of Decree No. 6

Regulatory Decree No. 6 describes the process for submitting the authorization request that must be presented to the National Council for Medically Assisted Procreation and the necessary supporting documentation and also defines the steps involved in the analysis of the request and the period of time for the approval or rejection of the request. (Regulatory Decree No. 6, art. 2.) Article 3 of the Decree provides a detailed description of the elements that the written agreement for the surrogate pregnancy must contain, and article 4 determines that the agreement is freely revocable up until the beginning of the therapeutic processes of medically assisted procreation.

For the purposes of parental leave, the beneficiary couple is granted parental leave within the scope of application of the regime regulating parenthood (id. art. 6(1)), whereas the surrogate mother is entitled to benefits equivalent to those provided for a woman who has an interrupted pregnancy (id. art. 6(2)). The regime of absences and waivers granted under protection of parenthood legislation is applicable to the surrogate mother and to the beneficiary couple as parents of the child. (Id. art. 6(3).)

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Finland: Parliament Passes New Postal Act to Reduce Service

(Aug. 14, 2017) On June 8 and June 21, 2017, the Finnish Parliament, in both a first round and second round of voting, approved amendments to the country’s Postal Act, allowing for distribution of letters and packages to be limited to three days a week in larger cities. (Innehållet i postlagen godkänt, RIKSDAGEN (June 8, 2017).) Smaller towns are still to receive postal service five days a week. (Id.) The distinction in level of required service depends on whether the community enjoys morning newspaper service, i.e., if the residential home will continue to be able to receive a morning paper even if the postal service is limited to three days a week. In larger Finnish cities, morning paper delivery services are provided separately by the newspaper businesses themselves; in rural areas, the newspaper is delivered together with the government-supplied mail. (Id.)

In addition, the new provisions allow for up to 1,000 households to, at the vendor’s determination, receive postal service only once a week, but that limitation on service would require prior approval from Kommunikationsverket (The Finnish Communications Regulatory Authority); daily newspapers will still have to be delivered daily by the government vendor. Only delivery of personally addressed letters may be delayed up to a week. (18§ New Postal Code, as drafted in KoUB 9/2017 EDUSKUNTA [FINNISH PARLIAMENT].)

Also, the delivery times of the service is affected by the newly adopted provisions. Letters weighing less than two kilograms, and also letters from the European Union community, are to be delivered within five weekdays following the receipt of the letter by the postal vendor. (Id. 19§.)

Background

The changes in the Postal Act were made in response to a Supreme Administrative Court Decision of April 8, 2016, that declared that under current law Finnish citizens have the right to receive postal service five days a week. (Högsta förvaltningsdomstolensårsbok [Supreme Administrative Court Reporter, HFD] 2016:43 (Apr. 8, 2016), Supreme Administrative Court website.)  The Court also found that Post Ab (the vendor delivering the mail) was required to conform to European Union Directive 97/67/EC on postal services in the internal market as well as the Finnish Postal Act.  (Id.; Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on Common Rules for the Development of the Internal Market of Community Postal Services and the Improvement of Quality of Service, EUR-LEX.) Posten Ab cannot refrain from delivering the mail to residents five days a week, the Court stated, even if boats to the Finnish archipelago do not visit a given island other than “at request.”  (HFD 2016:43.)

Reactions to the Legislation

During the proposal stage the new provisions were criticized by communities in the Finnish archipelago as unfairly targeting and discriminating against residents of the archipelago, who are worried that under the amendments they will receive their mail only once a week. (Maria Nylund, Snart är post i skärgården fem dagar i veckan sannolikt ett minne blott [Soon, Mail in the Archipelago Five Days a Week Likely Will Be Nothing but a Memory], YLE (June 1, 2017).)

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