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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.

United States: New York State Appellate Court Upholds Order for Return of Nazi-Looted Art

(Aug. 22, 2019) On July 9, 2019, the New York Appellate Division upheld a lower court’s decision ordering defendant Richard Nagy to return two pieces of art to the heirs of Fritz Grunbaum, a Jewish Viennese performance artist and art collector who was imprisoned and murdered by Nazis during the Holocaust. (Reif v. Nagy, No. 05504, slip op. (N.Y. App. Div. July 9, 2019.)

Background

Before World War II, Grunbaum owned a collection of 81 works of art by Egon Schiele, including two pieces named “Woman Hiding Her Face (1912)” and “Woman in a Black Pinafore (1911).” In 1938, shortly after the Nazi invasion of Austria, Grunbaum was captured and imprisoned by the Nazis. While imprisoned, the Nazis forced Grunbaum to execute a power of attorney over his property in favor of his wife, Elisabeth, who was still free at the time. Then, in accordance with the purported power of attorney, Elisabeth was forced to permit Nazi officers to inventory Grunbaum’s art collection and deposit it with a Nazi-controlled company. Grunbaum was murdered at Dachau concentration camp on June 9, 1941. In connection with obtaining her husband’s death certificate, Elisabeth filed a declaration stating that there was nothing remaining of her husband’s property. Elisabeth was subsequently evicted, forced into hiding, captured and, in 1942, murdered at Maly Trostinec extermination camp.

In the years following the war, pieces from Grunbaum’s plundered art collection resurfaced and were bought and sold by various dealers and collectors. Some of the owners were aware of the provenance of the Schiele works and took measures to hide or misrepresent the cloud on title. The defendant, an art dealer in London, acquired interests in the artworks in 2013, knowing that the heirs to Grunbaum’s estate had a potential claim to the artworks.

Underlying Decision

In 2016, the plaintiffs sued Nagy in New York, asserting their claim of superior title to the artworks (an action for replevin) and Nagy’s intentional interference with their right of possession of the artworks (an action for conversion). In 2018, on a summary judgment motion, the trial court determined that the plaintiffs had established a superior right to the artworks with evidence that they had belonged to Grunbaum and been looted by the Nazis. Nagy had not raised a triable issue of fact that Grunbaum had voluntarily transferred the pieces during his lifetime. Accordingly, the trial judge granted summary judgment to the plaintiffs and ordered Nagy to turn over the artworks to the plaintiffs. Nagy appealed that determination and order.

Present Decision

The appellate court affirmed the lower court’s grant of summary judgment. The plaintiffs had proffered sufficient evidence establishing that Grunbaum owned the artworks before World War II and that most of the dealers and purchasers of Grunbaum’s collection over the years were aware of his prior ownership. Additionally, the plaintiffs had submitted sufficient evidence that Grunbaum did not voluntarily relinquish his collection; rather, the Nazis arrested Grunbaum, tracked and confiscated his property, prevented him from exercising control over it, and forced him to sign a power of attorney under duress. Nagy had failed to raise an issue of fact sufficient to defeat summary judgment. Finally, the court rejected Nagy’s argument that the plaintiffs’ claims were barred by laches (unreasonable delay), citing Nagy’s recent acquisition of the artworks with awareness of the plaintiffs’ potential claim of ownership.

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Brazil: City of Rio de Janeiro Enacts Decree Allowing Compulsory Hospitalization for Drug Users and Homeless Persons

(Aug. 21, 2019) On August 5, 2019, the city of Rio de Janeiro published Decree No. 46,314, which enables compulsory hospitalization for drug users and homeless persons.

Decree No. 46,314 supplements Federal Law No. 11,343 of August 23, 2006, which establishes the National System of Public Policy on Drugs; prescribes measures to prevent drug abuse and promote the social reintegration of drug users and addicts; establishes rules for suppressing the unauthorized production and illicit trafficking of drugs; defines crimes, as amended by Law No. 13,840 of June 5, 2019; and provides for assistance to the homeless population (população em situação de rua) (Decree No. 46,314, art. 1).

The Decree defines the terms “drug addict,” “homeless person,” and “activities for the prevention of drug abuse” (art. 1(§ 1)). Voluntary hospitalization is considered to be hospitalization that occurs with the consent of the drug addict (art. 4(III)(a)), while involuntary hospitalization is that which occurs without the consent of the addicted person at the request of a family member or legal guardian, or, in the absolute absence of a family member or legal guardian, a public servant in the health arena or one affiliated with a social assistance or public organ of the National System of Public Policy on Drugs (Sistema  Nacional  de  Políticas  Públicas  sobre  Drogas) (with the exception of servants of the public security), who verify the existence of reasons justifying the measure (art. 4(III)(b)).

Involuntary hospitalization is to last only for the time necessary for detoxification or for a maximum period of 90 days, its termination in both cases determined by the attending physician (art. 4(V)(c)). In addition, the family or legal representative may at any time request the attending physician to discontinue treatment (art. 4(V)(d)).

Article 3 of Decree No. 46,314 creates the Municipal Register of Homeless Population (Cadastro Municipal da População em Situação de Rua, CPSUA), whose work must be promoted by the Municipal Secretariat of Social Assistance and Human Rights, with the assistance of the Pereira Passos Institute and the Municipal Secretariat of Health, with a view to identifying the social profile of homeless persons for the purpose of outlining specific assistance actions.

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Turkey: New Regulation Requires Media and Platform Service Providers to Obtain Licenses for Offering Radio and Audiovisual Services on the Internet

(Aug. 20, 2019) The government of Turkey published a regulation in the Official Gazette on July 1, 2019, which provides for a new framework for the licensing of radio and audiovisual transmissions made on the internet. The new regulation, the Regulation on the Transmission of Radio, Television, and On-Demand Services on the Internet, was prepared on the basis of article 29/A of the Law on the Establishment and Broadcasting Services of Radios and Televisions (Law No. 6112), which was added to the Law by an amendment on March 21, 2018.

Scope of Licensing Requirement

The Regulation requires media service providers and internet transmission platform operators that wish to provide radio or audiovisual services on the internet to obtain a license or authorization from the Radio and Television Supreme Council (RTSC) according to the type of service they provide.

The Regulation defines a “media service provider” as a legal person that has editorial responsibility in the selection of content and determines the arrangement and format of the transmission (art. 4(1)(r)), whereas “internet transmission platform operator” is defined as an establishment that makes available to users “numerous” radio, television, and/or on-demand audiovisual media services through its own URL address and/or via mobile applications in a manner that can be accessed through integrated television receivers, computers, smart phones, tablets, or similar devices (art. 4(1)(m)). The Regulation does not apply to internet service providers that provide only hosting for such services (art. 2(2)c)).

According to article 5(3), media service providers must obtain at least one of the three different types of “broadcasting licenses” for online radio, television broadcasting, and on-demand audiovisual media services, respectively, to continue the online provision of relevant services. Article 5(6) provides for an “internet broadcasting transmission authorization,” which must be obtained by internet transmission platform operators that wish to transmit radio, television broadcasting, and on-demand audiovisual media content on their platforms.

Article 5(8) provides that the relevant provisions of the Regulation apply to transmissions of radio and audiovisual media services made on the internet that “are in the Turkish language and are directed at Turkey,” or “are commercial in nature and are directed at Turkey despite not being in the Turkish language.” Media service providers and internet transmission platform providers that wish to provide such transmissions are required to obtain a license to continue providing these services in Turkey.

Transmissions found to be in violation of relevant provisions of international treaties in which Turkey takes part or are in violation of the provisions of the Law No. 6112 are also subject to the provisions of the Regulation, even if the content provider or the hosting service provider is located outside of Turkey and the media service provider or the internet transmission platform provider falls under the jurisdiction of a foreign country.

To obtain a broadcasting license, the applicant must be a joint-stock company incorporated under Turkish law (art. 7(1)). To obtain an internet broadcasting transmission authorization, the applicant may be a joint-stock company or a limited-liability company registered under Turkish law (art. 8(1)).

Applicability of Rules Regarding Protection of Minors to Content Transmitted via the Internet

Article 22 requires licensed media service providers and authorized internet transmission platform operators to implement necessary measures to enable parental control regarding content that might harm the physical, mental, or moral development of minors. Services that use individual membership systems to which minors cannot access are exempted from the minor-protection rules of the Regulation and Law No. 6112 (Reg. art. 22(2)).

Licensing Costs

Licenses cost 10,000 Turkish lira (TRY) (about US$1,785) for internet radio transmission, TRY100,000 for internet television broadcasting, and TRY100,000 for on-demand services. Licenses are valid for 10 years. Media service providers that provide users with services for a fee and/or offer conditional access implemented by technical measures that require subscriptions or other types of preauthorization are required to make a yearly payment equal to 0.5% of their annual net sales to retain their licenses (art. 12).

The fee for obtaining an internet broadcasting transmission authorization is TRY100,000, and the authorization is valid for one year. Internet transmission platform providers that provide users with services for a fee and/or offer conditional access implemented by technical measures that require subscriptions or other types of preauthorization are additionally required to make a yearly payment equal to 0.5% of their annual net sales (art. 15).

Sanctions for Transmissions Made in Violation of the Provisions of the Regulation

The Regulation provides that the RTSC may request that the peace court remove and/or block access to content transmitted without a license (art. 10(3)(b)(1)) or authorization (art. 11(3)(b)), following a warning and grace period of three months within which the necessary licenses or authorization must be obtained. Criminal charges with a penalty of one to two years of imprisonment may be brought against natural persons and the members of the board of directors and the general manager of legal persons making the offending transmissions in accordance with article 33 of the Law No. 6112 (Reg. art. 10(3)(b)(2)). The RTSC may also request that the court remove or block content that contravenes other provisions of the Regulation (art. 19). The removal or blocking of access orders by the court are effective only for the offending content or section of the content; however, if it is not possible to target offending content specifically, the court may order the blocking of access to the entire website (art. 19(3)).

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