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Brazil: New Resolution Bans Advertising to Children Under Age 12

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(Apr 17, 2014) Brazil's National Council of the Rights of the Child and the Adolescent (Conselho Nacional dos Direitos da Criança e do Adolescente, or CONANDA) issued Resolution No. 163 on March 13, 2014, banning ads targeting children. The Resolution, which entered into force on the date of its publication in the country's Official Gazette considers abusive all types of advertising and marketing communications (comunicação mercadológica) designed to target children and adolescents, in accordance with the national policy on the care of children and adolescents provided for in articles 86 and 87, sections I, III, V, of Law No. 8,069 of July 13, 1990. (Conselho Nacional dos Direitos da Criança e do Adolescente, CONANDA (last visited Apr. 17, 2014); Resolução CONANDA No. 163 (Mar. 13, 2014), DIÁRIO OFICIAL DA UNIÃO No. 65, Seção 1, 4 (Apr. 4, 2014); Estatuto da Criança e do Adolescente [E.C.A.], L Law No. 8,069 (July 13, 1990), art. 1, PLANALTO.)

Definition of Marketing Communications

The Resolution defines marketing communications as any activity of commercial communication, including the advertising of products, services, brands, and companies, regardless of the form, media, or means used (Resolução CONANDA No. 163. art. 1§1). Marketing communications include, among other tools, print ads, television commercials, radio spots, banners, websites, packaging, promotions, merchandising, promotional activities during concerts and performances, and arrangement of products at points of sale (id. art. 1(§2)).

Abusive Practices

Under the new Resolution, it is considered abusive to engage in the practice of targeting children in advertising and marketing communications with the intention of persuading the children to consume any product or service using, among other means, childish language, special effects, and excessive colors; soundtracks with children's songs, including those ones sung by children; representations of children; images of people or celebrities who appeal to children; characters or hosts of children programs; cartoons or animation; dolls or similar products; promotions with distribution of prizes or gifts or collectibles that appeal to children; and promotional competitions or games that appeal to children (id. art. 2).

The above provision applies to advertising and marketing communications issued at places, events, public spaces, websites, or television channels, among other venues, at any time, through any form or media, whether the communication is a product or service related to childhood or related to the adolescent and adult audience (id. art. 2(§1)).

Marketing communications within daycare centers and educational institutions, from kindergarten to elementary education, including marketing communications placed on school uniforms or in textbooks, is also considered abusive (id. art. 2(§2)).

Exception

Resolution No. 163 does not apply to public service campaigns that do not constitute an advertising strategy and that concern information about good nutrition, safety, education, health, and other matters related to better child development (id. art. 2(§3)).

General Principles

Article 3 of Resolution No. 163 lists the general principles that must be applied to marketing communications targeting adolescents, including those foreseen in the Federal Constitution, the E.C.A., and the Consumer Defense Code. (Constituição Federal [C.F.] (Oct. 5, 1988), PLANALTO; Código de Defesa do Consumidor, Law No. 8,078 (Sept. 11, 1990), PLANALTO.)

Background Information

CONANDA

The Council is the highest collegiate body within the federal government in charge of developing, discussing, and monitoring public policies for children and adolescents in the federal sphere. CONANDA was created by Law No. 8,242, of October 12, 1991 (Lei No. 8.242, PLANANTO) and is responsible for putting into effect the rights, principles, and guidelines contained in the E.C.A. (Press Release, Ministério da Justiça, O que é o CONANDA (last visited Apr. 17, 2014).)

Constitutional Principles

The Brazilian Constitution, determines, inter alia, that health is a social right (C.F. art. 6) and that it is the duty of the family, the society, and the State to ensure to children and adolescents, with absolute priority, the right to life, health, nourishment, education, leisure, professional training, culture, dignity, respect, freedom, and family and community life, as well as to guard them from all forms of negligence, discrimination, exploitation, violence, cruelty, and oppression (C.F. art. 227).

Paragraph 1 of article 227 of the Constitution further establishes that the state must promote full health assistance programs for children and adolescents, allows the participation of non-governmental entities, and determines that the following precepts must be regarded by the State:

· allocation of a percentage of public health care funds to mother and child assistance; and

· creation of preventive and specialized care programs for the physically, sensorally, or mentally handicapped, as well as programs for the social integration of handicapped adolescents, including training for a profession and for community life and facilitating access to public places and services, by eliminating prejudice and architectural obstacles. (Id.)

E.C.A.

Brazil enacted the Child and Adolescent Statute through Law No. 8,069 of July 13, 1990, which provides for the full protection of the child and the adolescent (E.C.A., art. 1). For the purposes of the law, a child is considered to be a person less than 12 years of age and an adolescent is a person between 12 and 18 years of age (id. art. 2).

Article 86 of the E.C.A. determines that the policy for the enforcement of the rights of children and adolescents must be set through a coordinated government and non-government actions, involving the Union, the states, the Federal District, and the municipalities (id. art. 86).

Article 87 sets parameters for the enforcement policy, which includes, but is not limited to: basic social policies (id. at I); special preventive services and medical and psychosocial care for victims of neglect, abuse, exploitation, abuse, cruelty, and oppression (id. at III); and legal and social protection provided by agencies engaged in the defense of the rights of children and adolescents (id. at V).

Author: Eduardo Soares More by this author
Topic: Children's rights More on this topic
 Communications More on this topic
 Marketing and advertising More on this topic
Jurisdiction: Brazil More about this jurisdiction

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United Nations: Treaty Will Allow Children to File Rights Complaints

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(Apr 17, 2014)

On April 14, 2014, the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure came into force, three months after the date on which the tenth country, Costa Rica, deposited an instrument of ratification of the Protocol. (New Treaty Enables Children to Lodge Complaints with UN About Rights Violations, UN NEWS CENTRE (Apr. 14, 2014).) The other nine countries that have ratified the Protocol are Albania, Bolivia, Gabon, Germany, Montenegro, Portugal, Slovakia, Spain, and Thailand. (Status as at 14-04-2014, Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure [hereinafter the Protocol] (Dec. 19, 2011), UNITED NATIONS TREATY COLLECTION.)

The Protocol allows children to loge complaints directly with the United Nations if their rights are violated. (The Protocol (2011), UNITED NATIONS TREATY COLLECTION.) According to a joint statement from the Chair of the U.N. Committee on Violence Against Children, the Secretary-General's Special Representatives on Violence Against Children and for Children and Armed Conflict, and the U.N. Special Rapporteur on the sale of children, child prostitution, and child pornography,

Children are now further empowered as this Optional Protocol recognises their capacity to exercise and claim their own rights … . It is a sad reality that, 25 years after the adoption of the UN Convention of the Rights of the Child, children's rights continue to be violated on a daily basis, including through violence, exploitation and abuse. We hope that this new treaty will give voice to children's testimonies and help them to obtain the necessary remedy and reparation. (Press Release, Children Can Now Lodge Complaints with the UN About Violations of Their Rights (Apr. 14, 2014), Office of the High Commissioner for Human Rights website.)

Children and their representatives in countries that have ratified both the Convention and the Optional Protocol, once they have exhausted the remedies available to them in those countries, will be able to take complaints to the United Nations Committee on the Rights of the Child. (Id.)

Author: Constance Johnson More by this author
Topic: Children's rights More on this topic
 Treaties and International Agreements/Human Rights More on this topic
Jurisdiction: United Nations More about this jurisdiction

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Estonia: Rules on Taxation of Bitcoin

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(Apr 17, 2014) On March 13, 2014, the Tax and Customs Board of Estonia published on its website a document entitled Taxation of Trade in Bitcoins (Maksustamine Bitcoin'idega Kauplemisel (Mar. 2014)). In this first government statement concerning the official policy in regard to Bitcoin, the Board followed the position of the European Central Bank and the Financial Action Task Force (FATF) and recognized Bitcoin as a decentralized virtual currency (id.).

According to an analysis of this document prepared by the International Bureau of Fiscal Documentation, in terms of its legal status Bitcoin in Estonia can be seen as an alternative means of payment. Bitcoin is not viewed by Estonian financial regulators and tax authorities as any form of security or e-currency. (Marek Herm, Estonia: Taxation of Bitcoin Transactions, International Bureau of Fiscal Documentation online subscription database (Apr. 8, 2014).)

Therefore, all individuals and legal entities conducting Bitcoin transactions are required to be registered as providers of business services (id.). Income generated from Bitcoin transactions is recognized as a capital gain for taxation purposes and is taxed accordingly. Because Bitcoin is not recognized as a financial instrument, transactions involving it do not constitute financial services and therefore are not exempt from the 20% Estonian Value Added Tax or from social security contribution requirements (id.).

Earlier this year the Estonian Public Broadcasting news service reported that the website that sold Bitcoin in the country was closed because the Anti-Money Laundering Bureau of the Police Department requested the business registration of the website. (Stuart Garlick, Bitcoin Trading Faces Increased Police Scrutiny, ESTONIAN PUBLIC BROADCASTING (Feb. 17, 2014)). It was also reported that sellers of Bitcoin in Estonia became subjects of a criminal investigation because money paid for a Bitcoin transaction was stolen from another account. (Anna Gershenzon, First Criminal Case Against Bitcoin Sellers Initiated in Estonia [in Russian], FOREXHM.RU (Mar. 3, 2014).)

Author: Peter Roudik More by this author
Topic: Currency More on this topic
 Financial services More on this topic
 Internet More on this topic
 Taxation More on this topic
Jurisdiction: Estonia More about this jurisdiction

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Japan: Gang Member Convicted of Fraud for Playing Golf While Hiding His Gang Membership

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(Apr 17, 2014) The Japanese Supreme Court has recently reached different conclusions in similar cases involving golf course policies to exclude gang members from playing. Depending on the circumstances, a gang member who deceives the course employees and plays golf can be guilty of fraud.

Miyazaki Cases

In cases that involved two golf courses in Miyazaki Prefecture, the courses had signs at the entrances of the clubhouse buildings stating that "persons who associate with gangs are not allowed to play." In addition, the golf courses' adhesion contract stated that gang members are refused admittance to the facility and are not permitted to play golf. The receptionists at the courses, however, did not ask questions about visitors' association with gangs when those visitors checked in. (2013 (a) No. 3, S. Ct., 2nd Petit bench [in Japanese] (Mar. 28, 2014), COURTS IN JAPAN.)

Some other golf courses nearby had similar procedures and gang members had the experience, that that they could play golf if they did not say anything about gang membership. At one golf course, gang member X went to play golf with another gang member. X saw the sign at the golf course, but did not say anything when he checked in and wrote his name on a sheet, played golf, and paid the fees. At the other golf course, a person who had a golf club membership asked X to play golf. At the front desk, X signed in using his own name, did not mention that he was a gang member, and paid the requisite fees before leaving the facility. The Court decided that a person's simply not mentioning his association with a gang did not constitute an act of fraud. X was therefore found not guilty of fraud. (Id.)

Nagano Case

A different outcome resulted in Nagano Prefecture. The golf courses in Nagano Prefecture had strict anti-gang policies. During the club membership application process, an applicant is asked whether he or she has any association with members of gangs. To be a member, an applicant must submit a letter that states he or she will not accompany gang members to the golf course. In addition, the golf course adhesion contract stated that gang members are refused entrance into the facility and not permitted to play golf. (2013 (a) No. 725, S. Ct., 2nd Petit bench [in Japanese] (Mar. 28, 2014), COURTS IN JAPAN.)

In this case, club member B made a golf reservation for himself, gang member Y, and four others. During the check-in at the front desk, B printed his name and signed the sign-in sheet, but he asked a club employee to write down the other five names. The gang member's name was partly altered. Y intentionally avoided going through the check-in process. The employee believed none of B's guests were gang members, because B was abiding by club membership rules. If the employee had known the party included a gang member, he would have refused to check them in and to allow them to play. After playing, B paid all the fees incurred for the entire party, using his credit card. In this case, the Court decided that B's act constituted fraud and Y was a co-principal by conspiracy. (Id.)

A law professor, commenting on the Internet, criticized the Supreme Court's decision in the Nagano case, arguing that fraud was not committed, because the golf course received the fees, and therefore the golf course did not incur any property damage. He also states that the golf course may lose its reputation (which is a form of property damage), but such loss is not the accused's gain and is therefore outside the scope of the protected interest, which is what the charge of fraud properly covers. (Hisashi Sonoda, Bōryokudan goruhu wa sagizai ka? [Is It Fraud If Gangs Play Golf?], YAHOO JAPAN (Apr. 4, 2014).)

However, the majority of scholars and the Court have held that, in a case of fraud, release of the property itself or the benefit itself is the loss, regardless of whether the usual compensation was given. (HŌMU SŌGŌ KENKYŪ SHO [LEGAL AFFAIRS COMPREHENSIVE RESEARCH INSTITUTE], KEIHŌ KAKURON (sono 1) [PENAL CODE, INDIVIDUAL CRIMES (vol. 1)] 236 (2008).) Thus it appears that in the Nagano case, the Court's judgment is consistent with precedent.

Author: Sayuri Umeda More by this author
Topic: Fraud and financial crimes More on this topic
 Judiciary More on this topic
Jurisdiction: Japan More about this jurisdiction

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European Union: New Regulation on Clinical Trials

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(Apr 17, 2014) On April 14, 2014, a new regulation on the authorization of clinical trials was adopted at the European Union level by the Council of the EU. The European Parliament approved the regulation in December 2013. (Press Release, Council of the European Union, Council Adopts New Rules on Clinical Trials, CONSILIUM [Council of the European Union official website] (Apr. 14, 2014).) The new regulation replaces two existing Directives, 2001/20/EC and 2005/28/EC, on establishing rules for good clinical practice and on requirements for authorization of the manufacturing or importation of medicinal products for human use, respectively. (Clinical Trials, European Commission website (last visited Apr. 16, 2014).)

The old clinical trials regime has been subject to criticism by patients, researchers, and the pharmaceutical industry because of its extensive regulatory requirements, high cost, and lack of harmonization of rules for multinational clinical trials. All of these factors contributed to a decline in the number of trials conducted in the EU. It is estimated that during the period 2007-2011, the number of applications for clinical trials decreased by 25%. (Press Release, Memo/14/254, European Commission, Q&A: New Rules for Clinical Trials Conducted in the EU, EUROPA (Apr. 2, 2014).)

The new regulation establishes the uniform application of common standards governing clinical trials across the EU and aims to attract more researchers to conduct clinical trials in the EU by simplifying and expediting the authorization procedure. Under the prior legal regime, an authorization was necessary in each Member State where the clinical trial was to be conducted. (Council Adopts New Rules on Clinical Trials, supra.)

The major highlights of the regulation are:

· Clinical trials must be authorized within 60 days. If no decision is made within the deadline, authorization is considered as having been given through tacit approval.

· Decisions on applications for large-scale modifications of clinical trials must be taken within 49 days. If the deadline passes without a decision having been made, authorization is deemed to have been granted.

· One single application will be sufficient for conducting clinical trials in several EU Member States. (Id.)

A Clinical Trials Register, maintained by the European Medicines Agency, has been in operation online since 2011 and allows public access to information on clinical trials for medicines authorized in the 28 EU Member States and in Iceland, Liechtenstein, and Norway. (Clinical Trials, EU Clinical Trials Register website (last visited Apr. 16, 2014).)

Author: Theresa Papademetriou More by this author
Topic: Health More on this topic
 International organizations More on this topic
 Medical research More on this topic
Jurisdiction: European Union More about this jurisdiction

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