Democracy,rule of law and human rights protection under gradually developed constitutionalism —by the clue of administrative law

With the shifting of the economic pattern and the developing of administrative law, the modern constitutionalism of China has adopted a progressive development process. Over 20 years, the development of democracy, the rule of law and the human rights protection clearly illustrate this point. For the gradually developing constitutionalism, the theory of limited rational is a theoretical basis, the stability of society is a social basis, the changing economic system is a economic basis, and Confucianism is a cultural basis. Constitutionalism of China should continue to go in such an active, steady and gradual way.     

‘Stalking’ – Seeking the victim's perspective

Abstract

The law has experienced great difficulty in defining ‘stalking’ and framing legislation to deal with the problem. There has been little research as to how the public in general and potential victims in particular view this phenomenon. In an effort to explore this issue, 80 women aged 18 to 55 years were invited to classify which of a range of intrusive behaviours were exemplars of stalking. A cluster analysis of the classification data showed a clear distinction between those which participants felt to be stalking and non-stalking related acts. Further, a number of distinct sub-categories of perceived stalking behaviours were suggested by the analysis. Participants were also asked to indicate whether they had first hood experience of any of these behaviours and to describe their worst personal experience of ‘stalking’. Analysis of this data suggested that instances of what our respondents perceived as ‘stalking’ was widespread in the sample and that some of its more serious manifestations would, if reported, have led to criminal charges. The difficulties of framing legislation, however, to define all the acts which our respondents saw as ‘stalking’ remain.     

The prosecutor and human rights – from the general to the particular

It is not unusual that one or all parties commit a genuine mistake when making contracts. While there is the strict general duty under the law to respect agreements, there equally exists the duty for courts and tribunals to be fair and to render commercial justice in the factual matrix of cases before them. In national legal systems and transnational law regimes, rescission for mistake on economically efficient and just terms is embedded in contractual obligations. The Solle v Butcher (1950) doctrine, which represented the English law approach, was rejected in The Great Peace (2002). Potential conflicts and crises now exist in commercial relations and international dispute resolution when ‘English law’ is the applicable law. This extends to jurisdictions where English decisions are highly persuasive. This article examines the correctness and effect of The Great Peace decision on the doctrine of equitable rescission for genuine mistake as propounded in Solle v Butcher, and possible clarifications needed after the complications brought by The Great Peace. It analyses the conceptual importance of the remedy of equitable rescission for mistake in commercial transactions, and identifies serious substantive errors of law by The Great Peace court. Finally, it provides other effective, fair and efficient legal methods that remain available to avoid the weaknesses of the decisions.     

Pricing privacy – the right to know the value of your personal data

The commodification of digital identities is an emerging reality in the data-driven economy. Personal data of individuals represent monetary value in the data-driven economy and are often considered a counter performance for “free” digital services or for discounts for online products and services. Furthermore, customer data and profiling algorithms are already considered a business asset and protected through trade secrets. At the same time, individuals do not seem to be fully aware of the monetary value of their personal data and tend to underestimate their economic power within the data-driven economy and to passively succumb to the propertization of their digital identity. An effort that can increase awareness of consumers/users on their own personal information could be making them aware of the monetary value of their personal data. In other words, if individuals are shown the “price” of their personal data, they can acquire higher awareness about their power in the digital market and thus be effectively empowered for the protection of their information privacy. This paper analyzes whether consumers/users should have a right to know the value of their personal data. After analyzing how EU legislation is already developing in the direction of propertization and monetization of personal data, different models for quantifying the value of personal data are investigated. These models are discussed, not to determine the actual prices of personal data, but to show that the monetary value of personal data can be quantified, a conditio-sine-qua-non for the right to know the value of your personal data. Next, active choice models, in which users are offered the option to pay for online services, either with their personal data or with money, are discussed. It is concluded, however, that these models are incompatible with EU data protection law. Finally, practical, moral and cognitive problems of pricing privacy are discussed as an introduction to further research. We conclude that such research is needed to see to which extent these problems can be solved or mitigated. Only then, it can be determined whether the benefits of introducing a right to know the value of your personal data outweigh the problems and hurdles related to it.     

MPs and the Internet – An Empirically Based Typology

In recent years, both an increase in and a process of differentiation of ‘new’, digital media devices, including rising numbers of citizens turning to them, have stimulated recurring speculation about a readjustment of the communicative relationship between political representatives and the people. The debate about ‘electronic democracy’ has so far focused predominantly on technical potentials on the one hand and citizens' exposure to interactive political communication channels on the other. By contrast, the ‘supply side’, that is, the internet activities of political actors and especially their motives, has been investigated relatively rarely. Against this backdrop, two representative surveys were conducted among German and Austrian members of parliament that investigated their attitudes towards the internet. The results demonstrate similarities and differences in internet-related competences and assessments which are explained by micro- and meso-level factors. Foremost, an age-related ‘digital divide’ was found crossing the parliamentarian rows in both countries.     

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.      

From the Airport to the Surgery to the Courtroom – Private International Law and Medical Tourism

When people wish to take legal action in relation to damage suffered due to medical procedures carried out overseas, they are faced with complex issues. First, in which country can they sue? Second, which country’s laws will govern the dispute? And third, where can a potential favourable judgment be enforced?

This article examines these private international law issues in the context of medical tourism. In doing so, particular emphasis is placed on investigating the private international law issues that would arise if an Australian citizen wanted to take action against a foreign provider of medical services, in relation to services rendered overseas.     

The Bonn Agreement to the Kyoto Protocol – Paving the Way for Ratification

This article provides a short account of the international climate negotiations that took place in Bonn from 16 to 27 July 2001. After the Sixth Conference of the Parties to the Framework Convention on Climate Change failed in November 2000, the Parties had decided to suspend the meeting. The ministers present at the resumed session successfully adopted the "Bonn Agreement to the Kyoto Protocol", a set of political compromises for the most contentious issues left open by the Kyoto Protocol. Although many details had been transferred to the Seventh Conference of the Parties, November 2001 in Marrakesh, Morocco, the Bonn Agreement already paved the way for ratification of the Kyoto Protocol and its entry into force. The Marrakesh Accord adopted on 10 November 2001transforms, with a few exceptions, this political agreement into bindinglegal text.     

Profiling the mobile customer – Privacy concerns when behavioural advertisers target mobile phones – Part I

Mobile customers are being tracked and profiled by behavioural advertisers to be able to send them personalized advertising. This process involves data mining consumer databases containing personally-identifying or anonymous data and it raises a host of important privacy concerns. This article, the first in a two part series on consumer information privacy issues on Profiling the Mobile Customer, addresses the questions: “What is profiling in the context of behavioural advertising?” and “How will consumer profiling impact the privacy of mobile customers?” The article examines the EU and U.S. regulatory frameworks for protecting privacy and personal data in regards to profiling by behavioural advertisers that targets mobile customers. It identifies potential harms to privacy and personal data related to profiling for behavioural advertising. It evaluates the extent to which the existing regulatory frameworks in the EU and the U.S. provide an adequate level of privacy protection and identifies key privacy gaps that the behavioural advertising industry and regulators will need to address to adequately protect mobile consumers from profiling by marketers. The upcoming second article in this series will discuss whether industry self-regulation or privacy-enhancing technologies will be adequate to address these privacy gaps and makes suggestions for principles to guide this process.¹     

mHealth and data protection – the letter and the spirit of consent legal requirements

In this article, the role of consent is discussed in the framework of fundamental rights and in the context of mobile health technologies (mHealth), such as smart phones, mobile phones or tablet/palm-held computing devices to provide healthcare. The authors surmise how, in practice, although there will be more emphasis on informed consent formally, there will be less space for genuine individual consent. This betrays a focus more on the letter of consent rules in data protection than their spirit. This risks reducing consent to a tick box operation in a manner analogous to consumer transactions, something manifestly unsuitable for consent, even if only in informational terms, during medical procedures.     

The Duty to Protect the Victim – Or the Duty to Suffer Punishment?

This paper addresses The Ends of Harm by Victor Tadros. In it, I attempted to explore some of the implications of Tadros’s theory of punishment, particularly those following from the uneasy relationship between punishment of the offender (D) and D’s duty to protect the victim (V) from future harm. Among my concerns were: the apparent underinclusiveness of Tadros’s theory of punishment; the vague and unpredictable scope of D’s liabilities; the taking away by the state of V’s right to be protected; and the lack of inherent limitations on the appropriate forms and amounts of punishment. I also questioned the true meaning of the duty incurred by D as a result of D’s wrongdoing and suggested that protection of Vs from future harm may not be as essential to Tadros’s justification of punishment as he has argued.     

Member States of the Commonwealth – Their Relationship with the International Court of Justice

The removal of judicial independence from the motherland for several Commonwealth countries was fraught with difficulties. The determination of where final national appeals would lie has had a most colourful history in the Commonwealth. An extension of judicial dependence may arguably be expressed in the manner in which a state address disputes of international law and its choice of the appropriate tribunal for redress. It is argued in this article that independence did not seem to indicate that some Member States were willing to relinquish their desire to move too far away from the family of the British Commonwealth. Consequently, in accepting the Option Clause of the International Court of Justice (ICJ), a number of Commonwealth Member States entered a reservation which, inter alia, excludes disputes with the government of any country that is a Member of the British Commonwealth. Although today only eight Commonwealth Member States (including Britain) maintain this exclusionary clause, to the extent that these eight may find themselves bound by this clause presents some difficulty when there are disputes among these Member States. The author highlights these difficulties by examining the case of Mauritius and the Chagos Archipelago. Ultimately, the present day Commonwealth seeks dispute settlement through peaceful means, with an absolute respect for the rule of international law governing relations within and among its Member States.     

Banking in the cloud: Part 3 – contractual issues

This paper looks at EU banks' use of public cloud computing services. It is based primarily on anonymised interviews with banks, cloud providers, advisers, and financial services regulators. The findings are presented in three parts. Part 1 of this paper explored the extent to which banks operating in the EU, including global banks, use public cloud computing services. Part 2 of this paper covered the main legal and regulatory issues that may affect banks' use of cloud services.Part 3 looks at the key contractual issues that arise in negotiations between banks and cloud service providers, including data protection requirements, complexities caused by the layering of cloud services, termination, service changes, and liability. It also presents the overall conclusion derived from the studies conducted, as set out in the three parts of the paper.All three parts of the paper can be accessed via Computer Law and Security Review's page on ScienceDirect at: http://www.sciencedirect.com/science/journal/02673649?sdc=2. The full list of sources is available via the same link and will be printed at the end of this part of the article.     

Jurisdictional issues and the internet – a brief overview 2.0

Issues of Internet jurisdiction remain a key challenge for the application of law to the online environment. Despite of a large volume of academic writings on the topic, these issues continue to be perceived as complex and inaccessible. This article aims to provide an accessible introduction to private international law as it applies to the Internet. As such, it is hoped that it may be a useful resource for courses in IT law, Internet law, e-commerce law or the like, as well as for anyone looking to refresh their understanding of exactly what it is that people are struggling with in the field we may call Internet jurisdiction.     

Enter the quagmire – the complicated relationship between data protection law and consumer protection law

This article examines the complex relationship between consumer protection law and data protection law, particularly within the EU's online environment, and highlights the problems that stem from this complexity. It suggests that, while there are significant similarities between their respective sources, tools and purposes, there are also arguable differences between consumer protection law and data protection law. One such arguable difference is found in that, while consumer protection law can be seen to merely set a floor in its pursuit of a sufficiently high level of consumer protection, data protection law – due to its clearly articulated dual purposes of (a) protecting individuals with regard to the processing of personal data and (b) providing for the free movement of such data – sets both a floor and a ceiling.Having discussed the relationship between consumer protection law and data protection law in more detail, the argument is made that it seems possible to conclude that the balance struck in the Data Protection Directive, and soon in the General Data Protection Regulation, places limitations on consumer protection law. The implications of this conclusion are then examined briefly in the context of some matters currently coming before the CJEU and the contours of a framework are presented, addressing situations where a data protection-based liability claim is pursued against a third-party non-controller under consumer protection law.     

Haemorrhages in the posterior cricoarytenoid muscles – an unspecific autopsy finding

Atraumatic haemorrhages in the posterior cricoarytenoid (PCA) muscles can be observed for from 1% to 9% of various causes of death. It has been claimed that there is an association between these findings and the cause of death, particularly coronary death. Additionally it has been assumed that haemorrhages in the PCA muscles may be caused by an asphyxial mechanism and it has even been suggested that the haemorrhages may be a “sign” which could be used to differentiate between natural and unnatural death. Because of the differing views we carried out additional research into the course of these haemorrhages. Six characteristic cases out of 2060 autopsies with macroscopically diagnosed haemorrhages in the PCA muscles are presented. The six cases included acute heart failure, death caused by bolus, drowning, trauma of brain and skull, exsanguination from polytrauma and choking after aspiration of vomit. These cases were completely different with regard to all the circumstances of death. On the basis of these findings and in contrast to the literature it cannot be shown that proofs exist for a correlation between the haemorrhages and the causes and the manner of death. As a consequence it must be stated that haemorrhages in the PCA muscles do not have any diagnostic significance.