Privacy in Commonwealth Caribbean law: emerging trends in the protection of sexual citizenship

This article will explore the three recent judgments of Jovil Williams and Jason Campbell v AG of St. Christopher and Nevis & Chief of Police;¹1 Suit No: NEVHC 2013/0120, Williams J, (Supreme Court of St. Kitts Nevis, 21st March 2016) (unreported).View all notes Caleb Orozco v AG of Belize²2 Claim No. 668 of 2010 (Supreme Court of Belize, 10th August, 2016) (unreported).View all notes and Therese Ho vs Lendl Simmons³3 High Court Claim CV.2014-01949 (Supreme Court of Trinidad and Tobago, 26th October, 2015) (unreported) [32].View all notes which have broken new ground in constitutional law and the law of torts concerning the protection of (the right to) privacy. It is argued that these judgments hold substantial promise towards the making of a meaningful sexual citizenship in the Caribbean; a citizenship which protects the sexual autonomy of citizens and prevents or redresses the invasion or breach of these rights.     

Judge or be judged: accepting judicial appointment in an unlawful regime

Judicial independence is generally accepted as a key component of the rule of law. It empowers judges to make unbiased decisions without concern for political repercussions. In countries governed by an unconstitutional, unlawful or corrupt regime, such as Zimbabwe,2 International Bar Association Human Rights Institute, Zimbabwe: Report Highlighting the Critical Situation Faced by Judges and Lawyers in Zimbabwe (2001). View all notes Swaziland,3 International Bar Association Human Rights Institute, Swaziland: Law, Custom and Politics – Constitutional Crisis and the Breakdown in the Rule of Law (2003). View all notes Pakistan4 International Crisis Group, Building Judicial Independence in Pakistan (9 November 2004). Available at: www.crisigroup.org/home/index.cfm?1=1&id=3100, accessed 1 February 2010. View all notes and Fiji,5 International Bar Association Human Rights Institute, Dire Straits: A Report on the Rule of Law in Fiji (2009). View all notes that independence, and in turn the rule of law, is threatened. More particularly, acceptance of judicial office in an unlawful regime could be regarded as making an implicit bargain with the government to recognise its validity.6 See, in relation to Fiji, Chief Justice R. French, Judges in Fiji face ‘interim’ problem, The Australian (Sydney), 2 May 2008. View all notes

This article begins with a discussion of the importance of judicial independence, both from a national and an international perspective. It then examines the standards of judicial integrity and some of the factors that impact upon independence, including appointment and tenure, and the less obvious influence of jurisdiction. The article then moves on to consider the issues arising from acceptance of judicial office in an illegal regime in the context of Fiji, where lawyers and judicial officers have recently been forced to decide whether or not to accept appointment in a regime with an unelected government. After outlining the background to the latest events in Fiji, the article examines the competing considerations and ethical dilemmas involved in deciding whether to accept judicial appointment in an illegal regime. It then goes on to consider the possible repercussions of accepting such appointment from both a disciplinary and criminal perspective.     

Kenya: succession,customary law

This article seeks to explore the idea that a health care professional who becomes aware that a patient has a genetic linked disorder should in some circumstances owe a duty to inform blood relatives of that fact, and that failure to so inform should be redressed through the law of negligence. This is a contention which has appeared in medical literature ¹ 1 Lucassen, A. (2007), Should families own genetic information? Yes, BMJ, 335(July), p. 22. and been the subject of litigation in American jurisprudence. ² 2 Pate v Threlkel (1995) 661 S0 2d (SC Florida); Safer v Puck (1996) 677 2d 1188 (SC, NJ). Given that medical researchers have identified the genetic causes of many human diseases through more sophisticated methods of DNA sequencing, and have confirmed the hereditary nature of many of these conditions, the disclosure of screening results is a serious and contentious issue. This is particularly so given the increasing importance of preventative medicine as a means of dealing with disease. ³ 3 See Seigler, M. (1982) Confidentiality in medicine – a decrepit concept, N‐Engl J Med, 307, p. 1518, where he refers to medicine expanding ‘from a narrow, disease‐based model to a model that encompasses psychological, social and economic problems’. Also note the increasing emphasis now given to the prevention of diabetes and obesity through lifestyle education. The article suggests, by reference to ethical discourse, and particularly Levinas' theory on responsibility, ⁴ 4 See Levinas, E. (1961) Totality and Infinity, trans. A. Lingus 1969 (Pittsburgh: Duquesne University Press); Levinas, E. (1974) Otherwise Than Being, or Beyond Essence, trans. A. Lingus 1981 (The Hague: Martinus Mijhoff). that health professionals do owe a duty of care to a patient's relatives, but that this duty may be discharged in ways which do not necessarily involve the disclosure of the information to those parties, and that it is only in certain, specified circumstances that a duty to disclose the information exists.     

The Digital Economy Act 2010: subscriber monitoring and the right to privacy under Article 8 of the ECHR

This paper critically assesses the compatibility of s3 Digital Economy Act 2010 (DEA) with Article 8 of the European Convention on Human Rights (1950) (ECHR). The analysis draws on Ofcom’s Initial Obligations and two UK cases, namely: British Telecommunications Plc & Anor, R (on the application of) v The Secretary of State for Business, Innovation and Skills,¹1 British Telecommunications Plc & Anor, R (on the application of) v The Secretary of State for Business, Innovation and Skills [2011] EWHC 1021 (Admin).View all notes and R (British Telecommunications plc and TalkTalk Telecom Group plc) v Secretary of State for Culture, Olympics, Media and Sport and others.²2 R (British Telecommunications plc and TalkTalk Telecom Group plc) v Secretary of State for Culture, Olympics, Media and Sport and others [2012] EWCA Civ 232.View all notes It argues that the implementation of this obligation allows directed surveillance of subscribers’ activities without legal authorisation under the Regulation of Investigatory Powers Act 2000 (RIPA). It also analyses compliance with the Strasbourg Court’s three-part, non-cumulative test, to determine whether s3 of the DEA is, firstly, ‘in accordance with the law’; secondly, pursues one or more legitimate aims contained within Article 8(2) of the Convention; and thirdly, is ‘necessary’ and ‘proportionate’. It concludes that unless the implementation of s3 of the DEA required the involvement of State authorities and was specifically targeted at serious, commercial scale online copyright infringement cases it could infringe part one and part three of the ECtHR’s test, thereby violating subscribers’ Article 8 ECHR rights.     

SMPIL Comments on the Long Island Nitrogen Action Plan

In early 2016, the New York State Department of Environmental Conservation, in conjunction with the Long Island Regional Planning Council, released the Conceptual Draft Scope for the Long Island Nitrogen Action Plan (LINAP).¹1 N.Y. State Department of Environmental Conservation, Long Island Nitrogen Action Plan, http://www.dec.ny.gov/lands/103654.html (accessed February 23, 2016).View all notes Pursuant to standard administrative procedures, the planners sought public comment in response to the Draft Scope Plan. SMPIL Consulting assessed and identified numerous areas for improvement and, therefore, submitted comments to the LINAP planners. These comments incorporated scientific and legal suggestions on a myriad of topics including upland land use, modeling, climate change, and adaptive management. The following article details these comments and notes the responses of the Department of Environmental Conservation as published on their Web site.     

The Supreme Court and the pledge of allegiance: a hollow victory

In Elk Grove Unified School District v Newdow (Elk Grove),1 124 S. Ct. 2301 (2004). View all notes the Supreme Court, in an 8–0 judgment,2 Justice Scalia chose not to participate in the outcome since he criticized the Ninth Circuit's ruling before it reached the High Court. Elk Grove Unified Sch. Dist. v Newdow, 124 S. Ct. 384 (Mem) (2003). See also Mark Walsh, Scalia: Courts go too far on Church State, Education Week, 22 January 2003, p. 22; Houston Chronicle, Justice decries courts removal of God, 13 January 2003, p. 5. View all notes with three concurrences, upheld the words ‘under God’ in the Pledge of Allegiance. In light of the uproar caused by Elk Grove, this article is divided into three parts. After reviewing the history of the Pledge the second section examines the litigation involving the pledge, including Elk Grove in this regard. The article concludes with brief reflections on the meaning of Elk Grove.     

Burning,Building, and Burying: Coal Combustion Residual Disposal in North Carolina

The fate of coal combustion residuals (CCRs) in North Carolina and the rest of the United States is noteworthy, particularly in light of the recent spills in Eden, North Carolina, and Kingston, Tennessee. The safe storage of coal combustion residuals should be a priority of the state and the federal government, in order to protect the drinking water of citizens from contaminants, like arsenic, lead, cadmium, selenium, and mercury.¹1 “Coal Ash: The Toxic Threat to Our Health and Environment,” Physicians for Social Responsibility and EarthJustice, http://www.psr.org/assets/pdfs/coal-ash.pdf (accessed September 19, 2015).View all notes Recently, North Carolina has taken steps with the passage of Senate Bill 729, entitled Coal Ash Management Act, and other legislation in order to promote safe storage of CCRs through a capped landfill system, complete with synthetic liners and leachate collection system. This article highlights not only the legislative enactments surrounding the disposal of coal ash in North Carolina, but also the effectiveness of such practices, both in North Carolina and the greater United States as a whole.     

A Voice for the Fish? Climate Change Litigation and Potential Causes of Action for Impacts under the United Nations Fish Stocks Agreement

The seas—all the seas—cry for regulation as a veritable res communis omnium. ² Louis Henkin, Arctic Anti-Pollution: Does Canada Make—or Break—International Law? 65 AJIL 131, 136 (1971).      

Can a Member of Parliament be ‘Genuinely and Properly’ Interested in Court Records?

If there was ever a case where the factual substratum could not have ever been foreseen, McCully v Whangamata Marina Society Inc & Anor ¹ 1 [2006] NZCA 209. (McCully) was one. The case is an unexpected by‐product of the substantive underlying case of Whangamata Marina Society Inc v Attorney‐General ² 2 HC WN CIV 2006, 485–789. (Whangamata) where the member of Parliament (MP) was not a party. The McCully case is unusual because: (1) it is, in law, a civil procedure case that matures into a significant constitutional law case; and (2) it is not the ruling alone, but the factual substratum particularly, that touches on the very heart of constitutional law. This article is limited to a cross‐analysis of the separation of powers, the sub judice rule, and ministerial decision‐making.     

Engaging with the legal profession and the provision of legal aid/assistance

The state of defamation laws within the Commonwealth poses a significant threat to the right to freedom of speech, expression and information. Within the United Kingdom there is a growing movement for the reform of the procedural aspects of libel law following several high profile cases that have brought the public’s attention to a number of problems within existing libel law. ^{1 1} Significant concern surrounded the judgment in this case and the question of costs MGN Limited v the United Kingdom – 39401/04 [2011] ECHR 66 (18 January 2011). In Jamaica, criminal defamation laws are facing reform and the recommendations for change are continuing to make their way through the legislative process. The pernicious effects of libel actions are amplified within small jurisdictions and there is a serious danger that the crippling penalties on defendants as a result of such actions ‘chill’ free speech and stifle dissent. ^{2 2}Guardian editorial, ‘Press freedom: The Singapore grip’ The Guardian (17 November 2010) <http://www.guardian.co.uk/commentisfree/2010/nov/17/press-freedom-singapore-grip> The Commonwealth Human Rights Initiative (CHRI) an independent NGO working for Human Rights in the Commonwealth, presented a paper to the 2010 Meeting of Law Ministers and Attorneys General of Small Commonwealth Jurisdictions (LMSCJ) on the human rights case for libel law reform in small jurisdictions. ^{3 3}Commonwealth Human Rights Initiative, ‘Overview of Media Freedom and Defamation: The Human Rights case for Libel Law Reforms in the Commonwealth’ (LMSCJ Paper, Commonwealth, Secretariat, Marlborough House, London). This paper was produced at the London officer of CHRI – written by Frederick Cowell with research assistance from Catherine Fischl, Alix Langrounat and Sirintiya Robberts. This is a summary of the research and the paper presented at the LMSCJ meeting. The basic findings were that the presence of criminal defamation laws on the statute books and procedural aspects of civil defamations laws posed a threat to the realisation of freedom of speech and CHRI put a series of recommendations to the delegates calling for reform in these areas.     

Copyright infringement and potential technological prevention measures in UK universities

Sony Music v. Easyinternetcafe´ 1 Sony Music Entertainment (UK) Ltd, Sony Music Entertainment Inc., Polydor Limited, UMG Recordings Inc. and Virgin Records Limited (claimants) v. Easyinternatcafe Ltd [2003] EWHC 62 (Ch) in the High Court of Justice Chancery Division 28 January 2002. Case No: HC 02 C01798. View all notes has introduced a new facet to the debate concerning the copyright legality of peer-to-peer file transfer. The judgment and subsequent settlement has highlighted that companies offering services that are used to infringe copyright may be held to account in the UK courts. Liability may extend from the private to the public sector and the British Phonographic Industry (BPI)2 The action was supported by the BPI's international sister organization: The International Federation of the Phonographic Industry (IFPI). View all notes has reinforced this theme recently. In March 2003 every university in Britain received a letter pointing out the legal risks of universities acting as copyright infringement facilitators. By allowing students to download copyright material such as software, Mp3s and DVDs, universities and their vice-chancellors may face injunctions, damages, costs and potential criminal sanctions. This paper first, briefly reviews the history and literature concerning peer-to-peer file sharing and secondly provides a preliminary discussion of the heads of peer-to-peer copyright infringement liability with regard to UK universities. Although the law at present gives no clear precedent in regard to the university sector, the area is unlikely to remain static. It is feasible that student copyright infringement liability could be transferred to universities in the future if universities do not show due diligence when dealing with copyright infringement. Thirdly this paper outlines the technological and administrative actions that may be taken to satisfy the British Phonographic Industry (BPI) and other copyright holders that UK universities are showing due diligence in preventing student copyright infringement. It is proposed that the university sector will follow the Internet service providers (ISPs) and will begin to work with the collecting and enforcement societies to prevent copyright infringement, perhaps in a similar way to the operation of the Copyright Licensing Agency (CLA). This article puts forward two main reasons for this: First, to avoid the potential legal costs of a copyright infringement action and secondly as the majority of downloading of copyrighted Mp3s, DVDs and computer software does not constitute an academic pastime or fulfil any worthwhile university endorsed learning aims it should be actively discouraged.3 Certain limited peer-to-peer use may fulfil legitimate educational goals: This area in the UK is governed by the Copyright, Design and Patents Act of 1998 in sections 28–44. View all notes     

Seeing things differently: restorative justice and school discipline1

… helping to incorporate the principles of human rights, democracy, tolerance and mutual respect, the rule of law and peaceful resolution of conflicts into the daily practice of teaching and learning …2 2. Council of Europe (2004) Education for Europe, retrieved from http://www.coe.int/T/E/Cultural_Co-operation/education View all notes     

The challenges of prisoner reentry faced by Native American returning offenders

This article examines the economic, social, and cultural challenges American Indian¹1. We recognize there are no universally accepted or accurate labels for the Indigenous Peoples of North America. Although individual tribal names are preferred, we have chosen to use the term American Indian or Native American to represent the collective population that is present within this study.View all notes inmates face as they reintegrate back into a rural reservation community. Utilizing surveys, focus groups, and in-depth interviews with a variety of stakeholder groups, including community corrections, law enforcement, treatment providers, and tribal leaders, this research explores the reentry challenges faced by Native American returning offenders. Findings indicated that although similarities exist with other reentry populations, especially other minority groups, several unique challenges appear. The possible policy implications of these findings for the reentry process are also discussed.     

Dilemmas and Dimensions of Non-indigenous Organisms and Pathogens in the Marine Environment: A Sea Change

“Although scientific and technical approaches are indispensable in managing the problem, bioinvasions are fundamentally a human phenomenon, driven by economic activity and by our choices as consumers, travelers, gardeners, pet owners, fishermen, and so on … No one advocates an attempt to unscramble the world's biota and return it to some historical state, even if that were possible … Our ultimate goal ust be … to preserve or restore something we value: native biodiversity and the wild places and systems where it can thrive, the look of a landscape, a sense of place, the functioning of an ecosystem, the economic productivity of our working lands and waters, the health of people, animals, and plants.” ^{2 2} Yvonne Baskin, A Plague of Rats and Rubbervines: The Growing Threat of Species Invasions, 8, 17 (2002).      

Constitutional foundations of commercial and investment arbitration in Nigerian law and practice

Ten years ago Sir Anthony Mason, a former Chief Justice of Australia, warned that ‘a failure to strike the right balance between judicial independence and judicial accountability will result in either an unacceptable weakening of judicial independence or inadequate accountability’. ¹ 1 Judicial Commission of New South Wales (1997) Fragile Bastion – Judicial Independence in the Nineties and Beyond (Sydney: Judicial Commission of New South Wales), Chapt 1, p. 2.

This article examines some of the evolving aspects of judicial independence and judicial accountability within and outside the Commonwealth Caribbean and highlights some of the practical problems that occur in our region or are likely to arise. Decisions of courts and emerging practices in other parts of the Commonwealth provide excellent guidance and lessons for us in the Caribbean.

Judicial independence and accountability are not esoteric matters. They are principles that, admittedly, may resonate particularly with judicial officers because they tend to affect judicial officers in practical ways. But they are principles that are fundamental to good governance in democratic societies. Indeed, Commonwealth Heads of Government acknowledged the importance of these two principles when, at their meeting in Abuja, Nigeria, in 2003, they adopted the Latimer House Guidelines ² 2 The Latimer House Guidelines for the Commonwealth, 19 June 1998. as Commonwealth Principles. Such importance and respect are now accorded judicial independence that the UK Parliament actually enshrined the principle in the text of the Constitutional Reform Act 2005: ‘The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary… must uphold the continued independence of the judiciary.’ ³ 3 Section 3(1).

Although this article will discuss judicial independence and accountability separately, it will be argued that the two concepts are not inconsistent and must coexist.     

The House of Lords – Into the Future?

The idea for presenting these opinions on the future of the House of Lords as an article grew out of a seminar held in the House of Lords in February 2006, an event that itself grew from the contributions to the book Parliament in the Twenty-First Century, a collection of 30 essays from academics, commentators and politicians.1 1. N. D. J. Baldwin (ed.), Parliament in the Twenty-First Century (London: Politico's, 2005). The seminar saw presentations from Lord Howe, Lord McNally and Lord Carter, and it is their observations that follow here.2 2. Lord Howe: Geoffrey Howe was Chancellor of the Exchequer (1979–83), Foreign Secretary (1983–89) and Deputy Prime Minister (1989–90); Lord McNally: Tom McNally is Leader of the Liberal Democrats in the House of Lords; Lord Carter: Denis Carter, Government Chief Whip in the House of Lords from 1997 to 2002. Sadly, Denis Carter died on the 18th December 2006. A skilled practitioner in the role of Chief Whip, he won respect from all sides of the House for his knowledge and understanding of the way the House operates and for his forthright and honest approach both to the business of the House and to his fellow peers. He is much missed by all those who knew him.      

New Zealand: Public Registers Report

In September 2007, the Commonwealth Law Bulletin (Vol. 33, No. 3), published an article on the New Zealand Law Commission’s Issues Paper on Public Registers (IP 3, 2007), including the four options for reform that the Commission was putting forward for consideration by interested persons.

The Law Commission’s Public Registers Report ¹ 1 New Zealand Law Commission’s Public Registers Report, NZLC R 101 2008. (the Report) has now been published, completing stage 2 of the Law Commission’s four stage Privacy Review.

It is available on the Law Commission’s website at http://www.lawcom.govt.nz.     

Law school accreditation in the New Independent States of the former Soviet Union: what steps for the future?

Legal education reform has recently emerged as a key component in the rule of law promotion in the former Soviet Union republics,1 1. See Jane M. Picker & Sidney Picker, Jr, Educating Russia's future lawyers—any role for the United States? (2000) 33 Vanderbilt Journal of Transnational Law 17, 18–19, arguing that the core building block of the rule of law rests on legal education. See John M. Burman, The role of clinical legal education in developing the rule of law in Russia (2002) Wyoming Law Review at 90, 101, stating that reform of the legal education is the most effective way of creating a culture of law. See Peter J. Sahlas & Carl Chastenay, Russian legal education: post-communist stagnation or revival? (1998) 48 Journal of Legal Education 194 at 194, arguing that “a system of legal education can do more than teach the society's rules to successive generations: it can inspire values of justice and promote social progress”. See also Mark Dietrich, Three foundations of the rule of law: education, advocacy and judicial reform, in: Law in Transition (London, EBRD, Autumn 2002), at p. 57, available at: http://www.ebrd.com/ pubs/law/lit/english/aut02.pdf. The author points out that reform of legal education is the single most important reform to be undertaken in the NIS region. If law students are not taught how to think critically, question authority and be guided by the ethical values of the profession while in law school, it is difficult to expect that they will become honest advocates, judges or prosecutors in the future. View all notes now sovereign and independent states collectively known, for the purpose of this paper, as the New Independent States (NIS). Scholarly articles and international forums2 2. See Europe and Central Asia Division of the Legal Department, World Bank, Selected Issues (2001) Challenges and Strategies. The World Bank Forum on Legal and Judicial Reform in Eastern Europe and the Former Soviet Union 33; see also Dietrich, op. cit., at 58. View all notes suggest that legal education reform could be advanced by developing and implementing accreditation procedures for law schools, updating law school curricula, establishing transparent and rigorous grading standards, and retraining the law faculty. This paper discusses just one of these measures, namely the development and implementation of quality evaluation and accreditation procedures for law schools in the NIS region. In order to explore this issue in detail, the paper has been structured into six parts.

?Part I provides a brief overview of legal education in the Soviet Union, thus placing the issues tackled in this paper into a historical perspective. Part II describes the main changes occurring in the higher education system in general and legal education in particular in the NIS region after 1991, emphasising new challenges that privatisation of the higher education sector posed to the quality of legal education, thus triggering an urgent need for quality-assurance and accreditation mechanisms. The currently existent NIS practices of licensing, evaluation and accreditation of academic institutions, including law faculties within multi-disciplinary academic institutions, as well as separate law schools, are described in Part III. Parts IV and V adopt a comparative approach to accreditation by providing an overview of accreditation procedures in the United States, and the recent initiative and trends in quality evaluation and accreditation in Western Europe. Drawing upon the information provided in Parts I–V, Part VI offers concrete suggestions and recommendations for improving the implementation of accreditation procedures in the NIS region. The materials contained herein represent the opinions of the author and editors and should not be construed to be the view of either the American Bar Association or the Central European and Eurasian Law Initiative. The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the ABA and, accordingly, should not be construed as representing the policy of the ABA. Nothing contained in this report is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This report is intended for educational and informational purposes only. Research performed on Westlaw country of West Group. View all notes     

Prison Populations as Political Constructs: the Case of Finland,Holland and Sweden

Countries such as Finland, Holland and Sweden have witnessed similar economic and social developments and have been affected by similar crime trends. However, over the past 50 years, the daily prison populations in these three Northern European countries have developed very differently. An attempt is made here to discuss these diverse developments in the light of a perspective that treats daily prison populations as political constructs.1 ¹I am grateful to my translator, David Shannon, and two anonymous referees for their helpful comments.      

The RedTube copyright infringement affair in Germany: shame on who?

Recently, tens of thousands of German Internet users were confronted with copyright infringement claims for allegedly watching porn clips on the streaming platform RedTube.com. The alleged copyright infringers received ‘Abmahnung’ cease and desist letters that gave them an opportunity to settle copyright infringements out of court by paying rights-holders €250 in compensation. While in cases relating to peer-to-peer file-sharing, the IP address of a peer can easily be identified,¹1. In order to identify the subscriber of a certain IP address at a given time, the rights-holders will file a disclosure request with a court. For details see below, Section 2.3.View all notes the RedTube case raises the question how consumers of a stream could be identified. In addition, it raises the question of whether the consumption of a stream is illegal under German law. Assuming that this is not the case, this analysis of the RedTube case highlights that the system of Abmahnungen is prone to abuse in an Internet context. Several weaknesses of the current system are identified, which show that disclosure requests are not thoroughly assessed by courts and that lawyers are far too willing to send out cease and desist letters although an infringement is not obvious. This environment allowed the emergence of anti-piracy business models that succeed in turning infringements into profit and that do not hesitate to make unfounded claims.