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India: Possible Amendment of IT Law to Address Cybercrimes Against Women

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(Aug 15, 2014) It was reported on August 15, 2014, that the Indian government has taken preliminary steps to introduce amendments to India's information technology law that would specifically treat cybercrimes against women. The move comes in the wake of reports of men recording rapes of women and girls with their smartphones and using the recordings to make the victims keep silent. (Rama Lakshmi, Video Recordings of Gang Rapes on Rise in India in Effort to Shame, Silence the Victim, WASHINGTON POST (Aug. 14, 2014); Three More Gang Rapes, One of a 7-year-Old Girl: Uttar Pradesh Is India's Shame, AMERICAN BAZAAR (June 25, 2014).)

The Information Technology Act 2000, as amended in 2008, provides for a punishment of imprisonment of up to three years or a fine of up to two lakh rupees (about US$3,300), or both, for anyone who "intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person … ." An explanatory section defines the terms used in the above article, e.g., "capture," "transmit," and "private area." (The Information Technology (Amendment) Act, 2008 (ITAA) (Feb. 5, 2009), THE GAZETTE OF INDIA, No. 13 (Feb. 5, 2009), § 32 [inserting art. 66E in the principal Act]; Information Technology Act 2000, No. 21 (June 9, 2000), Department of Electronics & Information Technology.)

There is also a prescription against the publication or transmission, or the causing to be published or transmitted, in electronic form of "any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it." (ITAA, amending § 67 of the principal Act.) The punishment for offenders on their first conviction is imprisonment for a term of up to five years and a fine of up to five lakh rupees; a second or subsequent conviction will incur a punishment of imprisonment for up to five years (the amendment reduced the term of imprisonment of up to ten years found in the principal Act) and a fine of up to ten lakh rupees. (Id.)

If the prurient materials contain sexually explicit acts or conduct, the punishment will be up to five years' imprisonment and a fine of up to ten lakh rupees; a punishment of seven years' imprisonment and a fine of up to ten lakh rupees may be imposed in the event of a second or subsequent conviction. (ITAA, § 32, inserting § 67A in the principal Act.) A separate provision is applicable to similar crimes involving the depiction of persons under 18 years of age in electronic form; the same possible punishments and fines may apply upon conviction. (Id., inserting § 67B in the principal Act.)

A "communication device" is defined as "cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text, video, audio or image." (Id. § 4B, inserting clause (ha) in § 2(h) of the principal Act.)

However, there is no provision in either the original Act or its 2008 amendment that explicitly addresses the capture in electronic form of violent acts such as rape.

Author: Wendy Zeldin More by this author
Topic: Commodities markets More on this topic
 Crimes against children More on this topic
 Crimes against women More on this topic
 Cybercrime More on this topic
 Information technology More on this topic
Jurisdiction: India More about this jurisdiction

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China: Pricing of Telecommunications Services Now Market-Based

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(Aug 15, 2014) On July 29, 2014, China's State Council promulgated an amendment to the Telecommunications Regulations, allowing prices for telecommunications services to be determined by the market instead of by the government. (Guowuyuan Guanyu Xiugai Bufen Xingzheng Fagui de Jueding [Decision of the State Council on Amending Several Administrative Regulations] (State Council Decision), State Council Decree [2014] No. 653 (July 29, 2014), Central People's Government of the People's Republic of China website.)

Previously, in May 2014, the Ministry of Industry and Information Technology (MIIT), joined by the National Development and Reform Commission (NDRC), had made the new policy public. (Guanyu Dianxin Yewu Zifei Shixing Shichang Tiaojie Jia de Tonggao [Notice of Implementing Prices Regulated by the Market in Telecom Services Pricing] (May 5, 2014), NDRC website.) The amendment to the Telecommunications Regulations confirmed the policy change in the country's primary legislation governing telecommunications.

The Telecommunications Regulations categorize telecom services into basic telecom services and value-added telecom services. Service providers must obtain different licenses according to the type of services they provide. (Dianxin Tiaoli [Telecommunication Regulations] (promulgated by the State Council, Sept. 25, 2000), arts. 8 & 9, Legislative Affairs Office of the State Council website; a partial English translation is available at CHINA.ORG.CN.) According to article 24 of the unamended Telecommunications Regulations, charges for basic telecom services could be fixed by the government, guided by the government, or regulated by the market. Charges for value-added services could be guided by the government or regulated by the market. (Id. art. 24.)

The amendment deletes article 24 of the Telecommunications Regulations and provides that all telecom charges are to be determined by market under article 23 of the new Regulations. (State Council Decision, supra.) In deciding prices, operators are required to consider their operational costs and market supply and demand, instead of "development requirements of the national economy and society" and "the affordability for telecom users" as provided by the 2000 Telecommunications Regulations. (Id.; Telecommunications Regulations, art. 23, supra.)

Under the Telecommunications Regulations, basic telecom services are services of providing public network infrastructures, public data transmission, and basic voice communications, which include fixed-line telephone services, mobile network telephone and data services, satellite communications and satellite mobile communications services, broadband leasing, Internet and other public data transmission services, and international communications infrastructures and international telecom services. "Value-added telecom services" refers to providing telecom and information services by utilizing public network infrastructures, which include email, voice mailboxes, online information database storage and search, Internet access services, Internet information services, and video conference services. (Telecommunications Regulations, art. 8 & Appendix, supra.)

Author: Laney Zhang More by this author
Topic: Telecommunications More on this topic
Jurisdiction: China More about this jurisdiction

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Senegal: Newspaper Editor Charged over Ebola Story

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(Aug 15, 2014) Felix N'Zale, editor of the Senegalese newspaper La Tribune, has been detained by the Senegal police since August 11, 2014. He was charged with "spreading false news" and was remanded to custody in the Rebeuss prison. The charge is based on an article in his newspaper that appeared on August 11. It described five cases of Ebola virus infections reportedly found in Senegal. (Prosecutor Detains Editor of Senegalese Newspaper for Spreading False Information, LERAL.NET (Aug. 13, 2014), Open Source Center online subscription database, Doc. No. AFL2014081343784304.)

Although N'Zale could have been subject to a sentence of three years of imprisonment, the prosecutor has only asked for the imposition of a one-year, suspended sentence and a fine of CFA500,000 (about US$1,021). (Félix N'Zale Condamné à un An de Prison avec Sursis et 500.000 F CFA d'Amendes Requis, DAKAR FLASH (Aug. 14, 2014).)

At present, the U.S. Centers for Disease Control and Prevention do not list Senegal as one of the countries experiencing a widespread outbreak of Ebola. (2014 Ebola Outbreak in West Africa, CDC website (last visited Aug. 18, 2014).) A traveler from Liberia to Senegal was suspected of having the virus, but then tested negative for it. (Suspected Imported Cases, INTERNATIONAL SOS (last updated Aug. 18, 2014).)

The Union of Professionals of Information and Communication of Senegal expressed its regret that N'Zale was detained. It stressed, however, that journalists should ensure that they treat information professionally and avoid acts of spreading false information that could make them liable to arrest. (Prosecutor Detains Editor of Senegalese Newspaper for Spreading False Information, supra.)

Freedom House, which describes itself as "an independent watchdog organization dedicated to the expansion of freedom around the world," has assessed Senegal on its press freedom as being "partly free," giving it a score of 52 on a scale of zero to 100, where zero represents the most press freedom. (Freedom of the Press: Senegal; About Us, both available at the Freedom House website (both last visited Aug. 18, 2014).)

Author: Constance Johnson More by this author
Topic: Freedom of the press More on this topic
 Public health More on this topic
Jurisdiction: Senegal More about this jurisdiction

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Japan: Supreme Court Rules Even If No Blood Tie, Parent/Child Relationship Remains

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(Aug 15, 2014) Japan's Supreme Court decided on July 17, 2014, in two similar cases, that the legal father-child relationship between a father and a child born while the mother remained in a marriage with the father cannot be denied in cases where the legal father turns out not to be the child's biological father. (Heisei 25 (Ju) 233 (S. Ct., July 17, 2014) & Heisei 24 (Ju) 1402 (S. Ct., July 17, 2014).)

The Facts

In the two cases, the wives (mothers) in each of the marriages committed adultery and bore children while the marriages were functioning. In one case, it was not clear who the biological father was at the time of the child's birth. In the other case, the mother assumed that the father of the child was her lover. In both cases, the offspring were reported as being the husbands' children. The husbands, who were the legal fathers, took care of the children as their own for a couple of years until the wives/mothers left the husbands and joined the lovers/biological fathers of the children. The biological fathers are now taking care of the children. One couple divorced; the other couple is still legally married even though a divorce suit was filed. (Id.)

The mothers tested the children's DNA, and the results showed that the children's biological fathers are not their legal fathers but rather the men who are currently taking care of them. The mothers filed lawsuits, as legal representatives of the children, against the legal fathers, seeking confirmation that the father-child relationship does not exist. (Id.)

The Law

Article 772 of the Civil Code (Act No. 89 of 1896) prescribes that a child conceived during marriage is presumed to be the husband's child. The Civil Code allows the father/husband to file a lawsuit against the child to invalidate this presumption within one year of the child's birth. (Civil Code, arts. 774-778.) By these provisions, courts and legal scholars have understood that a biological relationship does not necessarily determine the father-child relationship; if the biological tie were the crucial element, a lawsuit should be allowed without a time limit and by anyone concerned. There are many reasons behind the presumption system. One of them is to make the decision on the child's legal father early in the child's life, in order to stabilize the child's legal status. (Noriko Mizuno, Children, in KIHON HO KOMENTARU: SHINZOKU [BASIC LAW COMMENTARY: FAMILY] 125-128 (Ichiro Shimazu & Masaki Matsukawa eds. 4th ed. 2001).)

The courts have created one exception to the abovementioned presumption rule. If a child was conceived while the parents were separated or lived apart and, therefore, there was no possibility that the wife conceived the husband's child, the presumption can be invalidated by a lawsuit seeking confirmation of the non-existence of the father-child relationship. (Id.)

The Court's Rulings

The courts of first and second instance in the two cases added a new exception to the presumption rule: when it is obvious that the child is not the legal father's biological child and when the biological father and the mother have reared the child and the child enjoys healthy development under their care, the presumption can be invalidated. (Heisei 25 (Ju) 233 & Heisei 24 (Ju) 1402, supra.)

The Supreme Court did not agree with the lower courts' rulings. It stated that the situation that the lower courts found to constitute an exception does not necessarily always erase the need to establish the legal father-child relationship early and make it stable. Therefore, the Court held, it cannot be concluded that such a situation invalidates the presumption. The Court dismissed the mothers' claims. (Id.)

Two of the five Justices opposed the decision and another two wrote supplemental opinions. Justice Seishi Kanetsuki wrote, among other things, that he respects the opinion that stability is the most important factor for the law to consider in deciding the family relationship and that making an interpretation of a family relationship law apart from the literal provisions should be avoided. However, the most important thing in judgments by courts, he asserted, is the appropriateness of the solution for the specific case. In cases such as the ones at hand, he stated, "I do not believe it is better to make the general abstract legal principle a priority." (Heisei 25 (Ju) 233, at 15.)

Justice Ryuko Sakurai joined the majority opinion, but added her own opinion. She wrote that giving more weight to the biological father-child relationship makes sense, but then the interpretation of law would be distinct from article 722 taken literally, and such an interpretation would be inconsistent with other relevant provisions of law. She also wrote that as society has changed and science advanced, new issues have arisen in connection with parent-child relationships that are matters of fundamental public concern, and therefore instead of the courts solving such issues case by case, the legislators should re-examine the issue. (Id. at 6.)

Author: Sayuri Umeda More by this author
Topic: Families More on this topic
 Paternity More on this topic
Jurisdiction: Japan More about this jurisdiction

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Turkey: Adoption of New Law Aimed at Ending Terrorism and Achieving Social Integration

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(Aug 15, 2014) On July 10, 2014, the Grand National Assembly (Turkey's parliament) adopted the Law on Ending Terror and Strengthening Social Integration, in six articles. (Berk Çektir, Law on Social Unity Falls Short, TODAY'S ZAMAN (July 20, 2014).) The stated purpose of the Law is to implement solutions to regulate the procedures and principles for the process of ending terrorism and strengthening social integration. (Terörün Sona Erdirilmesi ve Toplumsal Bütünlesmenin Güçlendirilmesine dair Kanun [Law on Ending Terror and Strengthening Social Integration], Law No. 6551 (July 10, 2014), art. 1, RESMI GAZETE [Official Gazette], No. 29062 (July 16, 2014).)

Article 2 of the Law sets forth the general duties of the government in carrying out measures to implement, monitor, and coordinate the process. These include:

• determining the steps to be taken in political, legal, socio-economic, psychological, cultural, human rights, security, and disarmament fields and on related issues, in order to end terrorism and strengthen social integration;

• making decisions on such actions as contacting and opening a dialogue with domestic and foreign individuals, institutions, and organizations and appointing the individuals, organization, or institution that will perform this work;

• taking measures to ensure compliance on the part of members of an armed organization who give up their weapons and resume normal life;

• providing accurate and timely provision of information to the public on the measures taken under this Law;

• monitoring and ensuring coordination among relevant institutions engaged in the process; and

• doing the necessary legislative work. (Id. art. 2(1).) )

The details of this new "solution (or settlement) process" (çözüm süreç) to end terrorist activities and unify the society have reportedly not yet been made public. (Çektir, supra.)

The new Law authorizes the Council of Ministers (the Cabinet) to make the necessary decisions regarding the settlement process. (Terörün Sona Erdirilmesi ve Toplumsal Bütünlesmenin Güçlendirilmesine dair Kanun, art. 3(1).) The Undersecretariat of Public Order and Security is to coordinate the work done as part of the settlement process and related secretariat services. (Id. art. 3(2).)

The duties prescribed by the Law are to be carried out promptly by the responsible public institutions and organizations. (Id. art. 4(1).) The Law states that those who carry out the tasks assigned within the scope of this Law "shall have no civil, administrative or criminal liability concerning their performance." (Id. art. 4(2); Çektir, supra.)


According to the Preamble to the draft version of the Law, a National Unity and Fraternity Project had been launched in July 2009, opening room for debate in Turkey "that enabled the different segments of the society to confront their problems and formulate solutions." (Draft Law, No. 31853594-101-995-2780, Hakikat Adalet Hafiza Merkezi [Truth Justice Memory Center] website (June 26, 2014).) In 2010, the Undersecretariat of Public Order and Security was established with the specific task of ensuring "good communication and coordination between the National Intelligence Organization (MIT) and the National Police Department." (New Public Order Body Criticized in Reyhanli Aftermath, TODAY'S ZAMAN (May 16, 2013); Candidate Names Touted To Lead New Public Safety Watchdog, TODAY'S ZAMAN (Mar. 5, 2010); Kamu Düzeni ve Güvenligi Müstesarliginin Teskilat ve Görevleri Hakkinda Kanun [Law on the Organization and Duties of the Undersecretariat of Public Order and Security], Law No. 5952 (Feb. 17, 2010), RESMI GAZETE, No. 27511 (Mar. 4, 2010).)

At the end of 2012, according to the draft's Preamble, the solution process, characterized as "the process of excluding the violence and arms and including the statements, thought and politics instead" to achieve "a stronger, democratic, free, safe and peaceful Turkey," was initiated as a state policy. (Draft Law, supra.) On April 9, 2013, the Grand National Assembly established a Parliamentary Investigation Committee on seeking ways of achieving a peaceful society and evaluating the solution process, whose work resulted in a final report on its findings and recommendations. (Id.)

The draft's Preamble contends that the solution process had already resulted in a 19-month hiatus of bloodshed in the country and signs of normalization, as well as a "booming" economy and tourism, in the Eastern and Southeastern Anatolian regions of Turkey in particular. (Id.) In the view of one commentator, however, the law adopted is disappointing because it only offers limited steps to stem terrorism. In his view, "the law consists of just a couple of articles that only relate to the Kurdistan Workers' Party (PKK). In this law apparently the word 'terrorism' is used to address the disturbance in the southeastern and eastern provinces of Turkey but [terrorism] has been affecting the whole of Turkey for over 30 years." (Çektir, supra.)

The commentator further notes that 2014 is the 30th anniversary of the pivotal 1984 terrorist attack in which a number of soldiers in a gendarmerie station in eastern Turkey were killed, resulting in the government's first efforts to apply a label to such actions against the state. In the early 1980s, the PKK militia had been called an eskiya, a word "used for gangs who used to rob caravans," while "the word 'terrorism' was used for people who hijacked planes and abducted people and was not used to describe the actions of PKK terrorism." (Id.) Since that time, he comments, "there have been several laws made and several names, organizations and abbreviations used about this issue;" he acknowledges that categorizing a problem's elements "is a big step towards solving the problem" but questions the value of continually changing the name of such elements for drawing closer to a solution. (Id.)

Author: Wendy Zeldin More by this author
Topic: Terrorism More on this topic
Jurisdiction: Turkey More about this jurisdiction

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