Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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From the Age of Big Brother, [TITLE CONTENT CENSORED (and that *might* not be a terrible thing…)], Greetings!

Margie Beltran

 

 

The mystique of a dystopian society has maintained a consistent intrigue across the history of mankind.  The imagination of man runs wild when he thinks about the “what ifs” and how they would affect the way we live.

The Time Machine; 1984; Brave New World; Planet of the Apes; The Giver; The Hunger Games; The Divergent Series; and, of course, that paramount episode of The Twilight Zone when all that poor man wanted to do was read his books – he becomes the last man on Earth and can finally sit on the remains of the post-apocalyptic library, reading for the rest of his days. And then, he accidentally steps on his glasses and yells, “That’s not fair, there was time now!”

We have seen the same theme time and again: mankind begins to self-destruct and in the bout of chaos and anarchy, a powerful leader/governing body rises from the ruins and reshapes society into a peaceful and balanced ecosystem.  Beautiful, no? So, what’s the catch? To have order and peace, one must forego the right to freedom and privacy.

My friends, hold on to your Mockingjay pins, for the dawning of the dystopian society may be upon us.

On November 29, 2016, The Investigatory Powers Act (IPA) was passed in the UK set to be enforced in January 2017.[i]  Not the first of its kind among the EU Member States, the IPA was satirically dubbed the “Snooper’s Charter” by those who opposed it. The Act grants law enforcement easier access to the private communications of UK citizens.[ii]  Some of the major provisions[iii] include, but are not limited to:

  1. Power to issue warrants for intrusive surveillance granted to ministers.
  2. Easier access for the government to retain browser history from popular websites.
  3. Ability to collect bulk communications data and to hack suspect’s electronic devices.

Over the past few years, terrorist attacks have become a consistent and troubling threat throughout Europe.[iv]  Although aware of the threat posed by terrorism, many within the EU are concerned since allowing the government into their phones and personal computers was not quite what many had in mind, as far protective measures go.[v]  Amnesty International (AI) criticized the UK, a nation considered to be a fierce protector of human rights, for setting such an example to other EU-Member States.[vi] According to AI, the Snooper’s Charter is “a modern twist of the Orwellian ‘thought crime,’ [in which] people can now be prosecuted for actions that have extremely tenuous links to actual criminal behavior.”[vii]

I sympathize and empathize with this issue under two lenses: the first, my rose-colored-goggles human rights activist perspective, in which I feel the rights of the people should be staunchly protected and the foremost concern of the governing body to any nation because it is what is just and humane; and the second, as a young American adult who remembers being a nine-year old, enveloped with gut-wrenching fear for reasons I could not even comprehend, living just minutes from Washington D.C. on September 11, 2001, and seeing the glazed-over eyes and clenched jaws of my peers whose parents worked downtown trying to hold back their tears in school for weeks following the attack.

The day the government is definitively tracking every communication we send and receive will be a disturbing one for sure.  Even if they have nothing to hide, many people are bothered knowing a third party is always reading, analyzing, and judging everything they type or say.

While freedom of speech is of the utmost importance, I continually find myself reverting to the lenses of nine-year old me.  If the ones I love are at risk of being hurt, I would give up my right to privacy within the confines of this act.  Maybe not permanently – and that is a risk that holds high with a law challenging a fundamental freedom – but at least until this state of emergency in Europe eases.

Think about The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (far more commonly known as The USA PATRIOT Act) enacted during the George W. Bush Administration in 2001 following the 9/11 attacks which enabled law enforcement to detect and prevent terrorism attacks by expanding the scope of their investigatory practices.[viii]  The USA PATRIOT Act passed in Congress across the bipartisan margins.[ix]  In the Senate, the act passed with nearly a unanimous at a 98-1 vote, while the House voted in favor with a 357-66 vote.[x]

Regarding terrorist attacks, the US has not faced an attack of the magnitude of 9/11 since the act was decreed.  While the USA PATRIOT Act has its flaws, as most laws do, the original purpose for introducing the bill has generally been satisfied.  The UK appears as if the IPA has received the same treatment by Parliament.[xi]  According to London-based journalist, Ewen MacAskill, the bill passed “with barely a whimper.”[xii]  Further, he said the marginal resistance to the bill did not come from outside of the parliament’s four walls, indicating the people of the UK and Parliament are both in support of the IPA.[xiii]  If the citizens of the UK are not complaining about the new law and choosing to exercise their right of privacy by foregoing their right of privacy, then so be it.  They have the right to invite Big Brother into their lives.

To the future or to the past, to a time when thought is free, when men are different from one another and do not live alone – to a time when truth exists and what is done cannot be undone…from the age of Big Brother – greetings!” – George Orwell, 1984[xiv]

 

Margery Beltran is a third year law student at the University of Baltimore School of Law (Candidate for J.D., May 2017).  She holds a Bachelor of Science in Family Science with a minor in Psychology from Towson University.  Her interests include mental health and disability law and international alternative dispute resolution. Margie currently serves as the Volume V Comments Editor for the University of Baltimore’s Journal of International Law. She participated in the 2016 Summer Abroad Program at the University of Aberdeen School of Law in Aberdeen, Scotland.  She is currently an intern in Washington D.C. for the U.S. Department of Health and Human Services, Alternative Dispute Resolution Division.

[i] http://www.natlawreview.com/article/uk-investigatory-powers-act-2016-how-to-prepare-digital-age

[ii] Id.

[iii] Id.

[iv] https://www.theguardian.com/uk-news/2017/jan/17/uk-counter-terror-laws-most-orwellian-in-europe-says-amnesty

[v] Id.

[vi] https://www.amnesty.org/en/latest/news/2017/01/eu-orwellian-counter-terrorism-laws-stripping-rights-under-guise-of-defending-them/

[vii] Id.

[viii] https://www.justice.gov/archive/ll/highlights.htm

[ix] Id.

[x] Id.

[xi] https://www.theguardian.com/world/2016/nov/19/extreme-surveillance-becomes-uk-law-with-barely-a-whimper

[xii] Id.

[xiii] Id.

[xiv] 1984 by George Orwell

 

 

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Labor Activism Brings Spotlight to Freedom of Speech

Daniel Huchla

Have you ever wondered how your food is made?  More specifically, have you ever wondered if your food is produced ethically? There is one approach that aims to promote compliant business.[i]  The second approach is to expose unethical business practices through investigative journalism. For attempting to expose allegedly unethical practices Andy Hall faced the prospect of up to seven years in prison on the basis of the Thai law of defamation. What about freedom of speech and the press? Using U.S. law as a model, Thailand should modify its law to eliminate the possibility of criminal liability for defamation.

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Photo Credit: Kevin Casper – Public Domain Pictures

 

Andy Hall, a British lawyer and academic, collaborated with Finnwatch, a Non-Governmental Organization based in Finland, as a researcher on labor standards in the Food Industry in Thailand.[ii]  This venture resulted in the 2013 publication “Cheap Has a High Price”, exposing immigration and labor issues related to specific producers of tuna and pineapple products in Thailand.[iii]  As a result, Natural Fruit Company Ltd. lost business and brought suit against Andy Hall in Thailand alleging defamation.[iv]  During the course of the multiyear litigation there was a degree of public outcry from elements of the international community on Andy Hall’s behalf.[v] On September 20, 2016, the Bangkok South Criminal Court found Andy Hall guilty of criminal defamation and cybercrimes.[vi]  Hall received a suspended three year sentence and a 150,000 baht ($4,300) fine.[vii]  But, civil liability still looms in the distance, especially if Thailand follows res judicata, by which Hall could be precluded from arguing his civil liability since he has already been found criminally liable, which presumably has a higher standard of proof.[viii]

 

As a  sovereign nation, Thailand has control over the laws and their application within its borders. The issue of domestic sovereignty echoes the common phrase “When in Rome do as the Romans do.”[ix] Under Thai law, defamation can result in criminal and civil liability.[x] Criminal defamation is defined as “imput[ing] anything to the other person before a third person in a manner likely to impair the reputation of such other person or to expose such other person to be hated or scorned.”[xi] Because Mr. Hall’s work was published online (albeit in Finnish), he was additionally subjected to liability under the Computer Penal Code, which has stiffer penalties.[xii]

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Photo Credit: MBogdan – Mary’s Rosaries

Thailand does allow defenses in actions for defamation. A defendant may prove the truth of his statement, or if the plaintiff is a “subject of public criticism” the defendant may assert the statement was a “fair comment” made in “good faith.”[xiii]  In the case of Andy Hall it is uncertain where the gap exists that the defense of truth was unsuccessful. But, there has been criticism regarding the limited sample size for interviews, leading one to believe that the facts may not be inherently false, but just overgeneralized.[xiv]  That this is sufficient to find liability is an unfortunate byproduct of a system that places the burden upon the defendant to prove truth.

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What if Andy Hall had investigated a company in the United States instead? Under United States law, the company as Plaintiff would have to show that a false statement was made.[xv]  Changing the burden of proof in this instance would have drastic effect. If the publication was just overgeneralized, it would be equally difficult to prove the statement was false in the United States as it was to prove that it was true in Thailand. Even if the company were able to prove the statement to be false there are further protections for speech in the United States. Depending on whether the company is considered private or public, they would additionally be required to show either negligence or knowing culpability (“actual malice”) on behalf of Mr. Hall.[xvi] With all these protections, Mr. Hall likely would not have been found civilly liable for defamation in the United States. Within the U.S., there are several states that allow for criminal liability for defamation; but, these laws are confined by the same robust protections as civil defamation.[xvii]

However, these protections have not always existed in the United States. The law of defamation has evolved massively over the past sixty years in the United States. Prior to 1964, defamation allowed for per se liability.[xviii] Under this system, falsity was the only thing that needed to be proved.[xix] We don’t have to look very far in United States history for some level of liability to be foreseeable. This change additionally reflects that legal reform is possible and valuable.

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Going forward, what should be the reform priorities on this issue in Thailand? Ideally, the burden of proof should be shifted from the Defendant to the Plaintiff. Placing the burden upon the defendant can have a chilling effect on speech. The burden of proof coupled with criminal responsibility for defamation is guaranteed to limit speech. In this regard, Andy Hall is just the tip of the iceberg; a Thai woman is facing similar criminal charges for attempting to bring light to the alleged graphic murder of her relative.[xx]

Daniel Huchla is a third year law student at the University of Baltimore and a graduate of Miami University with a Bachelor of Music. During his undergraduate studies, he performed in an International Opera Festival located in Brazil. He also serves as Associate Managing Editor for the University of Baltimore Law Review. Areas of interest include Administrative Law, International Humanitarian Law, International Criminal Law, and National Security Law. He is currently a Law Clerk with the Law Offices of McCabe, Weisberg & Conway.

[i] http://fairtradeusa.org/about-fair-trade-usa/mission

[ii] http://www.finnwatch.org/en/news/408-andy-hall-found-guilty-in-a-shock-ruling-by-bangkok-court

[iii] http://www.bbc.com/news/world-asia-37415590

[iv] Id.

[v] See e.g. https://www.walkfree.org/andy-hall/

[vi] BBC, supra note iv.

[vii] Id.

[viii]  Finnwatch, supra note iii; see e.g. Taylor v. Sturgell, 553 U.S. 880 (2008).

[ix] http://www.phrases.org.uk/meanings/when-in-rome-do-as-the-romans-do.html

[x] See Finnwatch, supra note iii.

[xi] https://www.samuiforsale.com/law-texts/thailand-penal-code.html#325

[xii] https://www.samuiforsale.com/law-texts/computer-crime-act.html

[xiii] http://kellywarnerlaw.com/thailand-defamation-laws/

[xiv] http://www.dw.com/en/rights-activist-andy-hall-sentenced-for-defaming-thailand-fruit-company/a-19562755

[xv] See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986); 1 Law of Defamation § 5:13 (2d ed.).

[xvi] 1 Law of Defamation § 1:34 (2d ed.)

[xvii] http://www.firstamendmentcenter.org/criminal-libel-statutes-state-by-state

[xviii] New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

[xix] Id.

[xx] http://www.prachatai.com/english/node/6590


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Lèse-majesté in 2016: Erdoğan’s New Ottoman Empire and the European Press

Shane Bagwell

On April 15, 2016, German Chancellor Angela Merkel authorized the prosecution of comedian Jan Böhmermann under Article 103 of the German Criminal Code, a lèse-majesté law prohibiting “defamation of organs and representatives of foreign states.”[1] The Article is so rarely used and outdated that many jurists were unaware of its very existence until recently. The case now heads to the German judiciary for potential prosecution, though the outcome is hardly certain to any of the parties involved. The Chancellor’s announcement represents the broader situation in Europe, which is facing a refugee crisis, culture clash resulting from thousands of migrants entering the EU, and dwindling influence outside of its borders.

Lèse-majesté is an ancient concept dating back to the Romans, who made it a criminal offense to injure the sovereign power of the Roman people. The concept has shifted in its use over the years, and now includes certain crimes against the government as well. The current German law dates back to 1871, when  Kaiser Wilhelm II expanded the definition to include non-royal heads of state in an effort to secure the country’s ability to conduct diplomatic relations more effectively.

Turkey has been an associate member of the European Union since 1963, has been waiting for membership since 1987. However, numerous concerns about issues ranging from human rights to free speech have blocked their accession in one way or another. Since the outbreak of the Syrian Civil War though, Turkish influence over Europe has increased dramatically. A recent agreement between the EU and Turkey provides for more asylum seekers to remain in Turkey in exchange for EU cash assistance and other concessions (including renewed talks of Turkish accession).

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As Europe has grown ever more reliant of Turkey and President Erdoğan for support during the refugee crisis, the Turkish government’s sway over Brussels (and Berlin) has grown drastically. Although Germany was previously one of the leading and most vocal critics of Turkish accession to the EU, Chancellor Merkel’s government has aggressively sought a warming of relations, some would say to the detriment of her own country’s power and prestige. And, with recent German municipal elections strongly favoring a fresh tide of right-wing, anti-immigrant sentiments, she has reason to worry. Not only does the crisis have the power to potentially bring down her government, it could well lead to a collapse of the Union itself. As countries within the Schengen area have closed their borders to prevent the flow of asylum seekers, the cracks within Europe are beginning to show.

Within the last several months, Turkey has arrested scores of journalists and academics critical of the regime. Two journalists from the Turkist newspaper Cumhuriyet were tried for espionage after publishing a video that allegedly showed Turkey’s intelligence agency funneling weapons into Syria.[2] In March, two cartoonists were sentenced to 11 months and 20 days in prison for insulting Erdoğan on the cover of Penguen magazine, on which a cartoon figure of Erdogan is welcomed to the presidential palace by a public servant. Erdoğan tells him, “But this is so dry. We could have at least slaughtered a journalist.”[3] (A prime example of the President’s penchant for irony) The crackdown on journalists and academics syncs up with the Turkish government’s crackdown on Kurds in the southeast of the country, which has been subject to a media blackout, and has been harshly criticized by the free press group Reporters without Borders, whose Turkey page provides a truly damming assessment of free speech within Turkey. [4]

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Unable to resist the temptation of lampooning Turkey’s President over his increasingly dictatorial approach to governance, German comedian Jan Böhmermann released a video entitled “Erdowie, Erdowo, Erdoğan.”[5] The video shows footage of Erdogan’s most absurd public moments, intercut with crackdowns on protesters. “Equal rights for women: beaten up equally,” the song goes, as police beat women with batons.[6] Shortly after the video was aired on German television, the German ambassador in Ankara was summoned before the Turkish government to answer for the affront.[7] Within days, Böhmermann was at it again, this time specifically to test the limits of the free speech laws in Germany. The German ambassador was summoned once again, but this time rather than a verbal lashing, it was to receive a formal complaint that was required for prosecution under Article 103. Chancellor Merkel was faced with a tough decision: support the free speech rights of the Germans (indeed all of Europe), but risk the deal that had been hard worked between the EU and Turkey, or bow to Turkish pressure and cede German prestige and power to assure the agreement’s future. Unfortunately, Chancellor Merkel failed to remember that petulant and brutish tyrants such as Erdoğan will only be emboldened by concessions, a lesson which the rest of the world learned dealing with Germany in the 1930’s.

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Erdoğan’s response to Böhmermann has been to say, “I’m not some sort of tyrannical leader that is hostile to a free press, and to show it, I’m going to request that a foreign government prosecute a comedian for making fun of me.” The inability to recognize the irony of the situation only stands to bolster the argument that Erdoğan might need a lesson in what a “sense of humor is.” Free speech advocates around the world have lined up behind Böhmermann, not because his crass and offensive poem itself was valuable to the public discourse, but because art sometimes requires a shock to the senses in order to stimulate the discussion which this affair has.[8] The authorization for prosecution by Chancellor Merkel represents Germany’s bowing to the power of the new Ottoman Empire, and an abandonment of the core values which Europe seeks to protect. Perhaps the greatest joke here is that concerns such as these have been the largest impediment to Turkey’s accession to the Union. Now we wait to see who has the last laugh.

Shane Bagwell is a 3L at the University of Baltimore School of Law, and a graduate of West Chester University with a Bachelor of Arts in Political Science. He currently serves as the President of the Military Law Association. His interests are Middle Eastern politics, international conflicts, and the law of land warfare. He is currently a law clerk for the Office of the State’s Attorney for Baltimore City, Economic Crimes Division.

[1]Strafgesetzbuch (StGB) (Penal Code) § 103

[2]‘I’m not at war with press,’ says Turkish President Recep Tayyip Erdogan, CNN, 31 March 2016, http://www.cnn.com/2016/03/31/middleeast/recep-tayyip-erdogan-amanpour-interview/ (last visited 17 April 2016)

[3]Cartoonists convicted for insulting Turkey’s President, Zeynep Bilginsoy and Ivan Watson, CNN, 26 March 2016, http://www.cnn.com/2015/03/26/world/turkey-cartoonists-conviction/ (last visited 17 April 2016)

[4]Reporers Without Borders, Turkey, https://rsf.org/en/turkey (last visited 17 April 2016)

[5]https://www.youtube.com/watch?v=R2e2yHjc_mc

[6]Erdowie Erdowo Erdogan The Video That Made Turkey Mad Enough to Summon the German Ambassador, Foreign Policy Watch, http://foreignpolicy.com/2016/03/29/watch-erdowie-erdowo-erdogan-the-video-that-made-turkey-mad-enough-to-summon-the-german-ambassador/ (last visited 4/15/2016).

[7]Turkey asks Germany to prosecute comedian over Erdoğan poem, The Guardian, 11 April 2016, http://www.theguardian.com/world/2016/apr/11/turkey-germany-prosecute-comedian-jan-bohmermann-erdogan-poem (last visited 17 April 2016)

[8]Künstler solidarisieren sich mit Böhmermann, Die Zeit, 13 April 2016, http://www.zeit.de/kultur/film/2016-04/jan-boehmermann-satire-solidaritaet-prominente-offener-brief (last accessed 17 April 2016) (auf Deutsch) (in German)