Joyce Leung
Meet Our International Legal Reporters
Joyce, from Hong Kong/London, is in her penultimate year studying law at the University of Cambridge. She finds intellectual stimulus in the law as it is never static and hopes to work closely with it in the future to solve problems.
Khadija Khan
Hailing from a family of politicians, Khadija has closely witnessed the social injustices in the society from a very young age. She has further explored these issues by working with several literary organizations
Shelby Hickling
Shelby hopes to pursue a career as a corporate solicitor. Due to her international background, she has a keen interest in commercial issues in an international context
Pakistan’s Response to the Recent Motorway Gang-Rape
Reported by Khadija Khan
Edited by Kristhea M.C and Sringa Satheesh
The Attack:
A woman in Pakistan was raped in front of her children at midnight on 10th September 2020 while she was driving from the city of Lahore, capital of Punjab province, to Gujranwala. She stopped her vehicle having run out of fuel when the assailants smashed her car window, raped her in a nearby field and robbed her of cash and jewellery.
‘Victim-blaming’ Outcry:
Shortly after the incident, amidst public protest, the Lahore police chief Umar Shaikh became the subject of national outrage when he publicly blamed the victim for travelling alone at that time with children. He further added that said she should have taken another road or checked her fuel. Social media, together with Pakistan’s human rights minister, have been making demands for his resignation suggesting he is not suitable to handle the case with that kind of mentality. This is a step forward against crimes against women as not only are rape cases receiving publicity but also igniting a debate seeking solutions to decades of violence against them in the country.
Capital Punishment:
Since the motorway rapists were identified within 72 hours, the local public has been demanding the public hanging of the rapists. They are citing examples from 1981when the Pakistan military dictator of the time, General Ziaul Haqq, ordered the public execution of the killer and rapist of an adolescent. The stern sentence then served as an effective deterrent as no child was reportedly molested and murdered in the next decade or so. Rape is one of the 27 different offences that are punishable by death in the Pakistan Penal Code, making capital punishment a legal penalty. Also, Pakistan follows Islamic laws which permit individuals' lives to be taken "by way of justice and law."
Imran Khan, the current Pakistan Prime Minister, recently called for public hangings and chemical castration of rapists. In his opinion, rapists deserved exemplary punishments to discourage such incidents in the future. He declared that just like murder, rape should also be graded as first degree, second degree and third degree. However, this bill is yet to be debated upon and passed in the Parliament.
The Other Side of the Picture:
Several human rights activists, journalists and even celebrities oppose capital punishment. They believe that acts of violence such as rape are caused by deeply ingrained misogyny in the society that cannot be changed overnight by hanging or killing. Instead, the solution lies in changing mindset. It is also opposed as it is perceived as a tool for the powerful to increase bloodlust. In this way, it is a temporary rather than a long-term response to crime.
Furthermore, capital punishment may increase the number of rape victims killed to destroy DNA and fingerprint evidence. Sociologists in India have noticed a drastic decrease in rape victim’s survival rate after India pursued death penalties for rapists after the Delhi gang-rape incident. Most importantly, the examples of successful capital punishments from Zia’s dictatorship are also incorrect because Zia introduced Hudood Ordinances which required the identification of rapists and 4 witnesses to prove rape. If witnesses could not be provided, the rape cases were turned into adultery cases and women were punished instead.
Internationally, it has been observed that the death penalty does not work as a deterrent. There has been no major change in the rates for serious criminal offences in the states in the United States where the death penalty has been abolished. In reality, the death penalty impacts racial minorities and poorer citizens of society much more adversely as they are unable to afford high profile lawyers. For instance, in the US, although African Americans make 13% of the population, they make 50% of the death row prisoners.
Moving Forward:
Capital punishment will not resolve the issue of rape in Pakistan. The victim-blaming remarks made by the head of police highlights that the problem is in the mindset. According to the legal expert Osama Malik, the rape conviction rate can be as low as 2% in Pakistan and it is one of the main reasons why rape cases not even reported. Hence, society should collectively strive to change the misogynist mindsets and hatred for women in the country. Perhaps, improving security and mandating sex-education in schools could further protect the young generations, and thus reduce the rate of sexual crimes in the future.
Published on 24/09/2020
Morrisons Case: Data Class Actions in the UK
Reported by Shelby Hickling
Edited by Kristhea M.C and Sringa Satheesh
The world has witnessed a massive cut in technology costs over the years. However, with this decrease, personal data has become more valuable than ever. With the amount of personally identifiable information available on the internet, data breaches have become increasingly common.
In the past 18 months, the United Kingdom (UK) has seen an increment in consumer class actions generated by data breaches at prominent corporations. The recent decision in the Morrisons case has significant implications for the future of data class actions in the UK.
Unfolding WM Morrisons Supermarkets plc v Various Claimants:
The case arose when an employee of Morrisons, Andrew Skelton, downloaded payroll data containing personal details of 100,000 employees during his employment onto a USB stick and uploaded the data onto a public file-sharing website and shared it with the newspapers shortly after.
Following this, over 8,000 employees, whose personal data had been leaked, issued a claim against Morrisons. The Claimants alleged that Morrisons should be held vicariously liable for the misuse of private information, breach of confidence and breach of statutory duty under the Data Protection Act 1998 (the “DPA”), all committed by its employee.
The Supreme Court ultimately ruled that Morrisons was not vicariously liable and re-emphasised the fundamental principles of vicarious liability: the employer will be vicariously liable if the wrongful acts were “so closely connected” to the authorised acts of the employee and that the acts could be done in the ordinary course of his or her employment.
Although Mr. Skelton was entrusted to access the payroll data, he had not been authorised to download and disclose it. The Supreme Court highlighted that he was pursuing a personal vendetta against Morrisons’ knowing that the data breach would be costly upon the company. It was also insufficient that his employment provided him with the opportunity to commit the act.
What does this decision mean for employers moving forward?:
Even though Morrisonscan be viewed as a victory for limited corporate liability, the Supreme Court was careful in the delivery of its judgment. The judges maintained that vicarious liability in terms of data breaches will still be imposed upon corporations and will turn on the facts of the case.
Morrisons was differentiated by the judges and the judgement was heavily based on the fact that the corporation was able to demonstrate that it had specific controls and governance in place which met the legal standard of care for data protection under the DPA.
As evidenced, it is of utmost importance for employers to ensure that appropriate controls and information governance have been put in place to protect their collated banks of personal data. If it fails to do so, it will be vicariously liable for data breaches and should expect to receive costly fines for inadequate organisational security measures.
Implications on Data Breach Class Actions:
As more data breach class actions are being brought against corporations, the case is a setback for claimant firms who are pushing for US-style class actions in the UK. However, their ultimate aim to seek damages concerning the whole class that has been affected by the data breach certainly has not been reversed. Instead, this judgement protects the corporations who are also victims of data breaches by their employees and highlights that they will not be facing the effects of these claims.
Ultimately, the judgement still leaves many important areas of law concerning data class actions up in the air. In particular, the court has yet to consider how these compensation claim losses will be calculated, especially in cases where the victims have not sustained a significant financial loss. Upcoming cases will fully frame the UK’s approach to data breach class actions and provide clarity on this area of the law.
Published on 22/09/2020
Africa: The Inequality of Property Rights
Reported by Joyce Leung
Edited by Kristhea M.C and Sringa Satheesh
Having a property right is having a legally defensible claim to a property. In developed nations, the recognition and enforceability of such rights is the foundation for all market exchange and the just/efficient allocation of resources. An owner with legitimate property rights can exercise their autonomy and control over their estate.
The legal system of a typical African state is pluralistic. This means there are multiple sources of law: historic customary and religious law, colonial legislation and state legislation post-independence. Customary laws are long-established standards of behaviour within a community that may coexist alongside state legislation in some countries, such as Nigeria. Customary law still has great impact on personal matters such as marriage and inheritance, but due to its roots in patriarchy, what we find are disparities between women and male property rights in Africa. While reforms have slowly been made, there is still a long way to go and hurdles to cross before this inequality disappears.
Reasons for Unequal Property Rights:
According to the World Bank Group’s 2020 report, women only have 75% of the legal rights that men have. More specifically, within the African region, this number is only a half. There are several reasons why African women have fewer rights than their male counterparts, most notably the patriarchal values within the pluralistic legal system of many African states and their inadequate system of land registration.
These values may be seen in both state legislation and customary laws, arguably more so in the latter given there has been proactive reform of state legislation to reduce barriers to women’s social and economic participation over the last 50 years. For instance, Côte d’Ivoire’s Law on Marriage (2012) once only allowed husbands to administer and dispose of marital property; however, it has since been reformed in 2019 to grant husband and wife equal property rights. Nonetheless, as will be discussed later, these reforms are still inadequate in addressing the dominance of customary law within African communities which tends to favour males in issues such as the inheritance of marital property.
Compounded with this problem is the lack of formally documented land – only 10% in Africa. Land formally documented means it is registered with an owner who can be verified against a system. A lack of formal land registration exacerbates the inequality between men and women as women cannot legally prove their ownership status. This oftentimes means that their late husbands’ male relatives can appropriate their property without legal consequences.
Importance of Property Rights:
Guaranteeing women more equal property rights is vital to promote greater female participation in the economy. Property can be used as collateral, allowing women greater access to credit. Collateral is an asset pledged as security for repayment of a loan; borrowers with collateral are more likely to secure funds from a lender as there is a lower chance the borrower will default. The 2019 reform of Côte d’Ivoire’s marriage laws specifically allows married women to use their land as collateral. Communities will thrive if more women can access credit as this will give them a greater ability to start businesses, thus allowing them to invest in their families and the local economy.
More fundamentally, equal property rights are essential for female agency and dignity. Until recently, Zimbabwe’s divorce laws did not allow wives equal share of marital property upon divorce. There have been reported cases where women in violent marriages chose to remain with their husbands due to the fear of losing all their possessions after separation. A Zimbabwe Supreme Court ruling in June which held that a judge can award a woman half of all marital property was welcomed by many women’s rights activists in the region because it prevents women from being trapped in abusive relationships.
Future Outlook:
Despite these incremental improvements to the legislative framework, many women are still not afforded the property rights they deserve due to the dominance of customary law. The current limitation of some legislative reforms is that it does not extend the protection of women’s rights to customary or religious laws -laws which are dominant in rural communities. For example, the reformed marriage laws of Côte d’Ivoire and divorce laws of Zimbabwe apply only to registered marriages, not customary or religious ones. This means a handful of women still slip through the cracks of receiving legal protection. Moving forward, such protection must be extended to all sources of law before African women have equal property rights as men.
Published on 20/09/2020
Law of Self Defence in the United Kingdom
Reported by Khadija Khan
Edited by Kristhea M.C and Sringa Satheesh
Self-defence, in both common law and the Criminal Law Act 1967, allows the use of reasonable force to defend oneself or another. The courts have allowed this defence in limited circumstances because it results in a thorough acquittal, and thus the reasonableness of force is always objectively analysed by a jury. There are some complications concerning the law of self-defence which make it highly complex and difficult to understand as highlighted below.
The Element of Intent:
A major criticism regarding the law on self-defence is that it allows the culprits who used the unreasonable force to go free. This is an unsettling issue as defendants may use force to seek vengeance rather than defence. This is depicted in R v Lindsay where the defendant used a sword for self-defence and killed one of the intruders by continuously and violently slashing him. The use of the sword was not seen as reasonable or proportionate to the events which is why the Court of Appeal gave him a sentence of eight years of imprisonment.
However, with the passage of Crime and Courts Act 2013, the defence was further altered so that homeowners could still use self-defence in situations where the force applied was not reasonable, provided that it was not brutal. This section could lead to severe problems in the future of criminal law if not handled carefully because the term “unreasonable yet not brutal” is vague and controversial and can be misinterpreted easily.
Additionally, the defendant need not be attacked first as highlighted by Lord Griffith in Beckford v R [1988] AC 130. This means that a man who is about to be attacked does not have to wait for his assailant to strike the first blow. A pre-emptive strike is justifiable depending upon the circumstances as long as it is not misused. All in all, it is pertinent to make sure that the self-defence does not cross the boundaries of what’s reasonable according to the circumstances.
Uncertainty with regards to intoxication:
Uncertainty in the law with regards to intoxication is another issue with the law of self-defence. In situations where the defendant is under the influence of drugs, he or she cannot rely on an honest belief that he or she was under the influence of alcohol. Honest belief will work for self-defence unless intoxicated. For instance, in R v Letenock, the defendant believed that the victim was about to attack him due to the influence of alcohol. The judge, however, discarded this claim and advised the jury to not take his drunken condition into account while arriving at a verdict, unless he was so drunk that he had no idea what he was doing. These verdicts lead to further confusion regarding the situations in which the law of self-defence can be used.
Hence, the principle revolves around whether there was any intelligible basis for the belief of the defendant or not. Verdicts and decisions like these are classified as unjust by those who believe intoxication blurs the judgement while taking measures for self-defence.
Self-defence used by the police:
At times when officers make mistakes, the law on self-defence becomes extremely unpredictable. R v Pagett is significant case depicting this. Here, a girl who was being used as a shield by the defendant was killed by the police during an exchange of bullets. When it comes to balancing possible harm done, greater harm was expected from the violent suspect who could have killed the police officers by careless shooting. Hence, the court ruled that it was in the best interests of the officers to shoot in self-defence. It was later proclaimed that it was the defendant who caused the death of the girl by using her as a shield.
Another significant example of self-defence employed by the police can be found in Beckford v The Queen. Here, the appellant was a police officer who was sent to a house with other officers armed with shotguns and ammunition. The appellant claimed to have received a call from the victim’s sister who said that he was harassing his mother with a gun. However, the telephone call and the presence of a gun was later denied by his sister. The appellant further added that he saw the man escape from the backdoor with an object that seemed like a firearm that he fired at the police as they followed him. The appellant argued that he only fired back in response.
However, the jury convicted him of murder, after which he appealed asserting that the judge was wrong in directing the jury to the notion that the mistake had to be reasonably held. Eventually, the appeal was allowed, and the conviction was quashed because it was held that the test for self-defence allows an individual to use the force that he sincerely believes is reasonable in the circumstances to defend himself or another.
Conclusion:
In the end, it is evident that there is some uncertainty surrounding the law on self-defence, pointing towards room for improvement. However, it is significant to realize that this defence is significant in the criminal system as it enables individuals to protect themselves, their property and others in unsettling situations through the use of reasonable force.
Published on 17/09/2020
A Hopeful Call for Reform: Anti-Gay Laws in Singapore
Reported by Shelby Hickling
Edited by Kristhea M.C and Sringa Satheesh
In the past decade, several nations have decriminalised same-sex intercourse and some have also legalised same-sex marriages. These developments certainly have given the Singaporean LGBTQI community a sense of hope that Singapore will soon follow suit. However, with the recent decision made by the High Court of Singapore, it seems as though Singapore will continue to be at odds with the liberal trend to accept same-sex couples.
Criminalisation of Gay Sex – Singapore’s take?
Section 377A of Singapore’s Penal Code is the key legislation that criminalises sexual behaviour between consenting male adults, even in a private setting. It states that any male who, in public or private, commits, aids or enables a male to commit any grossly indecent act with another male shall be punished and could face a two-year jail sentence.
The law has been repeatedly challenged before Singapore’s judicial system as being unconstitutional. These challenges have been based on Articles 9, 12 and 14 of the Constitution of Singapore, which guarantees all persons the right to life and personal liberty, equal protection and freedom of speech respectively. The judges, however, have consistently dismissed all of these claims and continue to uphold s. 377A.
The latest challenge against the law was led by three gay men. In the joint judgment, the High Court of Singapore rejected all three petitions and upheld the constitutionality of s. 377A on the grounds that it did not violate any of the said articles. The judge reinforced s. 377A’s salience in reflecting the society’s morals and beliefs.
Retention but non-enforcement?
The Singapore government bases its decision to retain s. 377A, despite the challenges from the LGBTQI community, on the conservative nature of Singaporeans. Prime Minister Lee Hsien Loong argued that the law of Singapore should reflect societal attitudes and that retaining s. 377A was necessary to uphold a stable society with traditional, heterosexual family values.
The government has, however, promised that despite its retention, s. 377A will not be proactively enforced. This was seen as the government’s way of reducing the tension and striking a “compromise” between the two competing visions of society.
Is non-enforcement enough?
Even though the government has recognised the importance and place of LGBTQI people in Singapore, this supposed “compromise” it is still insufficient. These statements made by the government are not legally binding, hence, the policy of non-enforcement is still subject to change at any given time without valid reason.
The very existence of s. 377A also allows government agencies to uphold a range of discriminatory policies effectively stripping LGBTQI Singaporeans of their rights and protections as a citizen. Furthermore, it will continue to stigmatise sexual activity between men, leaving gay men in an incredibly vulnerable position due to the societal and institutional discrimination which treats gay sex as illegal and shameful.
The government’s seemingly neutral stance towards s. 377A and basing its decision solely on the conservative majority’s opinion also poses a huge problem in itself. This blunts the moral force of criminal law as it demeans gay sex and labels it as a crime, even though the government does not think that it is harmful to society and allowing the behaviour to continue behind closed doors.
The government’s middle ground tactic will not work in the long run. Hopefully, with increasing public participation and a continual shift towards a more liberal stance, Singapore will rethink its position on same-sex relationships and repeal s. 377A.
Published on 15/09/2020
Greece’s Response to the New Migrant Crisis
Reported by Joyce Leung
Edited by Kristhea M.C and Sringa Satheesh
Since the beginning of 2020, Greece has experienced an influx of predominantly Syrian and Afghan asylum seekers. Greece responded with a series of clandestine expulsion of more than 1,000 asylum seekers, sailing them to the edges of Greek waters and abandoning them in dinghies to be saved by Turkish coast guards. The legal framework governing asylum applications has also been greatly transformed by restrictive migration and asylum policies designed to prevent a repeat of the 2015 migrant crisis where an estimated 500,000 asylum seekers entered the country.
The ethics of Greece’s response this year has been criticised by human rights activists, such as Amnesty International. Furthermore, the legality of Greece’s response concerning their international obligations is dubious. However, is Greece justified in taking a hard line against asylum seekers?
What happened?
This February, the 2016 EU-Turkey deal broke down. In 2016, Turkey had agreed to prevent asylum seekers from crossing their borders into Europe in exchange for $6.7bn in EU aid. Turkey has since hosted around 3.6 million Syrian refugees, more than any country. Due to the strain on the country’s resources, Turkey decided to open up its borders to Europe again earlier this year, which resulted in a mass migration of asylum seekers into Greek territories.
There is a strong incentive for asylum seekers to leave Turkey for Greece, as Greece is a party to international treaties that safeguard the safety and wellbeing of asylum seekers. Greece is a signatory to the European Convention on Human Rights (ECHR) and the 1951 Convention Relating to the Status of Refugees, also known as the Geneva Convention.
International Protection Act (IPA)
Adopted in January this year, this new piece of Greek legislation makes it more cumbersome for asylum seekers to successfully apply for asylum and to increase the number of asylum seekers that can be “legally” removed from Greece.
Article 104 removes the automatic suspensive effect for certain categories of appeals, namely those against decisions that have been rejected as manifestly unfounded or inadmissible. Before the IPA, the effects of decisions (e.g. deportation) would be suspended while the court reconsiders the decision in an appeal.
As a result of Article 104, the effects of a decision will no longer be suspended pending an appeal, meaning asylum seekers will have to file a separate request to the Appeals Committee for their deportation to be suspended while their application undergoes further examination.
Contrary to International Law
The legality of the IPA and Greece’s wider response is questionable. By being a signatory to the ECHR and the Geneva Convention, Greece is obliged under international law to afford certain standards of protection to asylum seekers within its border.
Article 104 of the IPA likely breaches the principle of non-refoulment codified in the Geneva Convention. This principle forbids countries from sending asylum seekers to a country where they are liable to be subject to persecution. In fact, the United Nations High Commission for Refugees considers that in most situations a decision to appeal must include an automatic suspensive effect to respect the principle of non-refoulment.
Furthermore, the absence of an automatic suspensive effect will make it difficult for Greece to comply with Article 13 ECHR – granting people the right to an effective remedy. In the context of asylum seekers who wish to appeal an earlier decision of deportation, this “effective remedy” would likely be sought for a breach of Article 3 ECHR – the prohibition of torture, something that asylum seekers will likely face if returned to their home country.
It was held by the European Court of Human Rights in Gebremedhin v France that a remedy based on an arguable claim of ECHR violations has to entail automatic suspensive effect to be considered “effective”. In this case, an asylum seeker was threatened to be removed from France to a country where he would likely be subject to ill-treatment contrary to Article 3 ECHR.
Alternative Response
Greece is in a difficult position. An alternative response to the current situation that abides by international law may be desired, but there are competing interests concerning public health during the pandemic and the sustainability of financial resources that suggest the current response is justified to protect the people of Greece. An ideal solution to these problems is for multiple countries to take on these asylum seekers to distribute the social and economic strain. However, this is not an easy alternative as it requires countries to confront the question of where their responsibilities lie: to their people or humankind at large?
Published on 13/09/2020
Education and Employment in the Middle East
Reported by Khadija Khan
Edited by Kristhea M.C and Sringa Satheesh
With governments across the Middle East and North Africa (MENA) region investing heavily in education, the past few decades have witnessed a rapid extension of primary, secondary and tertiary education. Yet, the results have been disappointing as the gap between education and employment is widening in the Middle East. Universities are producing graduates without giving them the skills needed to succeed in job markets, and the job market is also hamstrung by the economic mismanagement, the result of which is high levels of education but increasing unemployment.
As per the World Bank, the highest unemployment rate is in the six states of the Gulf Cooperation Council which are Oman, Bahrain, Qatar, Saudi Arabia, the United Arab Emirates and Kuwait. There are several reasons for this, but the difference between the skills acquired through academics and those required by the private sector in GCC countries is a key factor. Enterprises in the region strongly believe that a sheer lack of appropriate skills is the main obstacle in hiring employees. According to the region’s leading job site, Bayt.com, 63 percent of professionals believed that the job market was picking up, whereas 20 percent still felt that the current education system was not giving them the skills required to succeed in the job market. It must, however, be noted that inadequate education does not imply a lack of education but the lack of skills. Hence, ironically, educated youths are the major victims of unemployment in the Arab World.
Jobseekers acquire education and new skills to gain the perspective and outlook that would help them build a career but unfortunately, this link seems to be shattering down slowly in the MENA region. A majority of the respondents in Bayt.com, February 2015, Education and innovation in the Middle East poll thought that the education was suppressing their creativity. This means that there should be some changes in the education system by providing more room for innovation and developing new skills. However, what is important is that there is still hope for the future because according to the 2020 polls, the majority of MENA professionals intend to not only become more productive and efficient but to also develop new skillsets. Hence, job seekers and professionals alike are open to working towards closing the gap between academics and skills.
The reason why an extensive amount of investment in education could not create as much economic growth, jobs and youth opportunities as it should have is the misalignment that exists between the education system and job markets. Thus, to overcome this crisis, the region must urgently increase the investments in on-the-job training, so that graduates can find a company from which they can continue learning practical skills. Data from 2015 portray that most MENA professionals prioritise learning and training opportunities over money. This further highlights the importance of developing training programs for jobseekers.
Moreover, academics and teaching styles in schools and universities must match the needs of the current workforce. For instance, teachers and professors could coordinate with the corporate sector to understand the needs and requirements of the job market. Also, business and corporate training could be included in the curriculum because it could teach the graduates skills such as communication, negotiation, influencing and line management. Besides, there’s an urgent need to capitalize on development projects. As far as education is concerned, online courses on entrepreneurship, commerce and international marketing could be offered to reshape the system of education. At the time of writing, such courses have been made available by Bayt.com and platforms launched by the Queen Rania Foundation.
In conclusion, more investment in training, research and education is needed to address the unemployment in the Middle Eastern region. Furthermore, as illustrated by the Arab Human Development Report, education’s inability to fulfil the requirements of Arab societies is the most concerning aspect of the crisis in education. In other words, a pertinent issue regarding employment in the Middle East is that the educational system has not witnessed significant changes or improvements for a long period. Therefore, educational institutes must play their part by striving to teach skills to fresh graduates.
Published on 10/09/2020
Role of Intellectual Property Rights in the Fashion Business
Reported by Shelby Hickling
Edited by Kristhea M.C and Sringa Satheesh
From Tiffany & Co.’s signature blue colour, Burberry’s classic plaid design to the simplest Dr Martens boots; all these products are incredibly iconic and have a significant value attached to them because of the applied intellectual creativity and skill behind them. Original and innovative creative expressions in fashion should be protected through intellectual property rights and there should be a higher interest in the legal protection of this industry moving forward.
Intellectual Property and Fashion?
The fashion industry is one of the most creative and emerging sectors. New products and ideas are introduced to the fashion world every single day. As such, it is evident that innovation and original creative ideas are salient to the fashion industry. These creations and designs are considered intellectual creations of an individual and go hand in hand with intellectual property.
As outlined by the World Intellectual Property Organisation (WIPO), intellectual property (IP) refers to the “creations of the mind, such as inventions; literacy and artistic works; and symbols, names and images used in commerce”. As fashion trends change each season, major retailers, individual designers and wholesalers will come up with novel designs and look to forms of IP to protect their intellectual creations.
Even though trends change, some, however, are classic and will remain popular for ages. If intellectual property rights have not been enforced, infringers would be able to copy such designs without legal implications. As a result, mass-produced knock-off products could potentially damage a brand in the long run, causing the design and brand to lose value to their consumers.
Despite the significance of IP rights to fashion, many provisions within IP law are not tailored specifically to fashion and as such, designers often struggle to protect their creations. However, recent decisions have revealed that courts are becoming increasingly aware of its importance.
Louboutin v Van Haren: Victory for the Fashion Industry?
The recent landmark case – Louboutin v Van Haren Schoenen BV – is likely to have an impact on the fashion industry, particularly in Europe. The case, which went to the Court of Justice of the European Union (CJEU), focused on whether Louboutin had the right to trademark its exclusive red soles used in its design of high-heeled shoes.
Louboutin had registered its red-sole trademark in Benelux for high-heeled shoes and the trademark was granted for ‘the colour red (Pantone 18 1663TP) applied to the sole of a shoe’. The CJEU had to essentially decide whether Louboutin’s red sole trademark was valid under Article 3(1)(e) of Directive 2008/95/EC, which prevents the registration of any sign which consists ‘exclusively of the shape which gives substantial value to the goods’. In particular, the issue was whether the concept of ‘shape’ was strictly limited to 3D properties or if it encompassed other features -in this case, colours.
In its judgement, the Court stated that the trademark directive did not define the concept ‘shape’ and that the meaning should be determined from its usual meaning when utilised in everyday language. The Court highlighted that the concept ‘shape’ would not typically include colours and that the trademark was intended purely to show the positioning of the iconic red soles of Louboutin heels. As such, the Court held that Louboutin’s red sole trademark was indeed valid.
The Louboutin decision can be considered a victory for the fashion industry as it demonstrates that there is a growing understanding of the protection of intellectual property and creativity. It has also provided businesses all across the world with a clear opportunity to expand on their promotion and marketing of products across Europe through designing products which can be identified by their specific colour references.
As the fashion world continues to evolve, the need for the legal protections surrounding it increases, too. In the current cut-throat business environment, strict enforcement of intellectual property rights could provide brands with a competitive advantaged within the fashion industry. It is the only way forward to encourage innovation and creative expression amongst designers in the fashion business.
Published on 08/09/2020
Calling on the Multilateral Regulation of the Crypto-Assets Market
Reported by Joyce Leung
Edited by Kristhea M.C and Sringa Satheesh
The market for digital money has been a hot topic since the launch of Bitcoin, a type of crypto-currency, in 2009. Regulatory authorities and legal scholars now prefer to use the term “crypto-assets” instead of crypto-currency. “Crypto” means concealed or secret, showcasing the idea that these digital assets are encrypted in secure networks. Hence, “crypto-assets” broadly defined, are digital representations of value or contractual rights that are encrypted in secure networks.
The crypto-asset market is an emerging financial ecosystem that is disrupting conventional financial systems, presenting both opportunities and challenges for consumers and investors of the present and future. There is currently a patchwork approach to its regulation: different jurisdictions have varying laws of strictness determining whether legal force is attached to digital rights. While this is true of other laws, it is essential that a multilateral response is adopted to regulate this market to prevent international financial crimes and ensure international financial stability.
New Financial System:
Investors and layman consumers should care about the growing crypto-assets market because it is an emerging and potentially viable way of conducting financial exchanges. There is even proof of the movement of crypto-asset finance into mainstream financial services, i.e Santander’s launch of a $20 million bond onto the public Ethereum blockchain in September 2019. In conventional financial systems, exchanges are mediated by fiat currency that is managed centrally by financial institutions like a central bank, whereas exchanges in crypto-asset markets are mediated by digital assets managed through decentralised consensus.
What does decentralised finance mean and how does this occur? The answer lies in the underlying technology of crypto-assets: distributed ledger technology (DLT) such as blockchain. Simply put, DLT enables the same information (e.g. of a transaction) to be stored simultaneously on a large network of computers. As a result, participants of a crypto-asset exchange can confirm transactions without the need for a central clearing authority, or the central bank in conventional financial systems.
The added value of decentralised finance is that the record of transactions cannot be tampered with, since any changes to the network can be easily detected. As a result, there is an incentive for participants to report their transactions truthfully which advances the tracking and updating of information. Furthermore, since there is no central clearing authority, there is increased speed and a reduction in the cost of cross border remittance of assets.
Need for Regulation:
Despite these innovative benefits, legal intervention is needed to keep check of the crypto-assets market. First, since transactions are pseudonymous, crypto-assets are often used to buy or sell illegal goods and services, such as drugs or weapons. They are also used in money laundering, ransomware attacks and financing crimes. Additionally, consumers and investors are at risk of experiencing large and unexpected losses due to a variety of factors: the general lack of knowledge about these types of assets, its volatility, and the exaggerated and optimistic advertisement by crypto-asset creators.
Currently, various jurisdictions regulate crypto-assets differently. The EU’s 5th Anti-Money Laundering Directive, effective since 10 January 2020, stipulates that crypto-asset service providers will have to follow Know-Your-Customer (KYC) rules. In short, this means consumers and investors will be required to provide personal ID before engaging in a transaction, thus deterring the illicit use of crypto-assets. The acceptance of crypto-assets differs widely across the world. For example, Bolivia completely bans the exchange of crypto-assets whereas Mexico, Argentina, Brazil and Chile widely accept them as payment.
Multilateral Response:
Crypto-assets are by nature global due to the ease with which one can buy and sell digital assets across the world. One of the present challenges facing regulators is the difficulty in transposing existing financial regulation to the crypto-assets market. The reason for this is that the emerging financial system is decentralised, making it hard to point towards a single responsible party to regulate and to hold to account.
If the crypto-assets market integrates into mainstream finance in the future, a global regulatory framework would be essential to protect consumers and investors from international financial crimes, ensure the stability of the global financial system, and bring legitimacy to the digital financial market. As of 2019, the G20 leaders have declared their commitments to the international governance of crypto-assets so this may be a reality soon!
Published on 06/09/2020
Gender Equality and Judiciary in the United Kingdom
Reported by Khadija Khan
Edited by Kristhea M.C and Sringa Satheesh
Deep-rooted structural discrimination seems to be the main reason for the lack of female representation in the judiciary. For the longest time in history, judges have been white males from the privileged classes of society, while women have been held back due to gender stereotypes and discrimination. This is where the conversation for gender equality steps in. Gender equality can only be achieved when access to rights and opportunities is unaffected by gender. This issue is becoming increasingly relevant as the judiciary in the United Kingdom is not as diverse as the society it represents. To address the voices of a diverse community, the court needs to be just as diversified.
Increased female representation in the judiciary is a need of the hour. Not only for the sake of women empowerment but also as a vehicle for strengthening the public’s trust in the courts. How can we expect the general public to have faith in the judiciary as a saviour of human rights if it is itself discriminatory? It is found to be difficult for people to trust rigid bodies of authorities that are unable to adapt to societal changes and which are instead symbols of elitism, privilege, and exclusivity. Hence, to gain public trust and legitimacy, it is essential to have more women who can enhance the transparency and inclusivity of the judiciary.
Furthermore, women have personal experiences unique to them, bringing a more empathetic perspective to the table. For instance, in matters of adaption, surrogacy, and paternity, a female voice is valuable as not only does it enlarge the scope of discussion but also prevents unfair or biased decisions in areas of law where a woman’s point of view is necessary. Thus, female judges can offer a different voice on decisions by highlighting viewpoints that would not have been taken into consideration in their absence.
As of now what we can say is that change is coming -slowly, but surely, Brenda Hale, president of the Supreme Court, recently spoke up for gender equality across the judiciary by stating that at least half of the UK judiciary should be female as women make up half the country’s population. Despite this, figures presented by the Ministry of Justice in 2018 show that women only make 29% of court judges. While the ratio of female to male judges is higher in lower courts, the situation is quite the opposite in the Supreme Court where only 3 out of 12 judges are females. These figures suggest that there is a long way to go for female representation in the judiciary.
However, this is not to say that no progress is being made. The UK’s justice system has been seeing a gradual increase in the number of female court judges. According to Judicial Diversity Statistics in 2018, females make around half of the court judges under the age of 50. Likewise, the data in 2019 shows that 32% of court judges and 46% of tribunal judges are women. So, the system is definitely on the right track.
Several other steps have also been made in the right direction. For instance, under the leadership of Lady Justice Hallett, The Judicial Diversity Committee - that extensively works for more diversity - designed a plan to reach a more diverse group of lawyers in the next few months. More recently, remarkable news regarding diversity and female representation in the judiciary was heard in May when a British Pakistani Raffia Arshad became the first-ever hijab-wearing deputy district judge in the UK. Significant steps like these illustrate the improvements being made.
Published on 03/09/2020
A CALL FOR GENDER-NEUTRAL DRAFTING
Reported by Shelby Hickling
Edited by Kristhea M.C and Sringa Satheesh
The question of gender-neutral drafting has been highly discussed in the English-speaking world for many years now. Legal professionals traditionally utilised masculine language in drafting to refer to individuals, regardless of their gender. This practice has been recognised as outdated since it reinforces historic gender stereotypes. To ensure clarity, precision, and unambiguity in legal documents, a shift has to be made towards full gender inclusivity in drafting.
Gender-Neutral Drafting – a Necessity:
Western culture, as well as the law governing it, has historically understood sex and gender to be binary concepts. Even though this has never accurately reflected sex or gender, the non-binary conceptualisations of gender were not acknowledged until recently. Recognition of the full gender spectrum is promising; however, it is insufficient. The only way to achieve full gender inclusivity is through gender-neutrality which must be upheld across all aspects of life, including legal drafting. Legal professionals know all too well the importance of language utilised in drafting and must embrace gender-neutral language as a way of reflecting and enforcing values of anti-discrimination and inclusiveness.
Furthermore, gender-neutral drafting provides much more clarity and precision. The generic usage of masculine pronouns makes it unclear as to whether the provision is directed only towards men or if it is inclusive of both men and women. Courts have been inconsistent with their treatment of male-linked pronouns, as pointed out in a legal study conducted on American judges. During the study, it was observed that courts sometimes hold that the generic ‘he’ refers to only males and other times concluded that it refers to both sexes. Gender-neutral drafting removes the ambiguity and imprecision of male-gendered generics.
The Challenges:
Adopting a fully gender-neutral drafting system does not come without challenges. Many have put forth the argument that gender-neutral drafting ‘distorts the English language’ and that using they or their when referring to a single person or object is grammatically incorrect. The House of Lords in the United Kingdom have expressed strong opinions against the usage of they in a singular sense and have even stated that it is ‘an insult to the lovely English language’.
This argument of the singular they being ‘colloquial’ and ‘too improper’ to use in formal writing needs are contrasted against the clarity and precision that it in turn provides. Part of a lawyer’s job is to produce clear, unambiguous documents, and eloquence should never be prioritised over clarity.
Additionally, language is fluid and it changes to reflect evolving social norms. These arguments against the “aesthetics” of gender-neutral drafting hold no sway and are not strong enough to disregard the need for full gender inclusivity in drafting.
Where are we now?
Gender-neutral drafting is already being adopted by many within the legal profession. It is worth noting that gender-neutral drafting is strongly encouraged in many countries, including New Zealand, Canada, and the United Kingdom. However, it is not mandatory, hence, gender-neutral drafting is still considered an option, rather than a requirement.
Although we are making progress in terms of gender inclusivity in drafting, there is still a long way to go before true gender-neutrality can be achieved in all existing and future legal documents. Additional steps need to be taken to truly reflect the developments in our society, as well as, reiterate the importance of inclusion.
Published on 01/09/2020
TIME FOR INTROSPECTION: THE FUTURE OF ANTITRUST LAWS
Reported by Joyce Leung
Edited by Kristhea M.C and Sringa Satheesh
Antitrust laws govern competition between businesses in open markets and can be used to protect consumer welfare. Healthy competition keeps prices down and encourages businesses to innovate and produce high-quality goods and services. With recent anti-trust disputes concerning Big Tech players (Apple, Amazon, Google, and Facebook) making headlines, the growing demands for antitrust regulations to catch up with this burgeoning industry cannot be ignored. Coupled with the accelerated uptake of technology during the pandemic, it would appear that such demands are justified. However, is this easier said than done?
Introducing Antitrust Law:
Generally speaking, antitrust law regulates competition by prohibiting predatory business practices, such as price-fixing, collusion, and monopolies. More than 120 jurisdictions worldwide have their own system of antitrust regulation and enforcement authorities, with divergences in each of their goals and approaches.
For instance, the European Commission is concerned with creating competitive opportunities for SMEs (Small and Medium-Sized Enterprises), whereas the US tends to pursue a consumer welfare-oriented approach. To illustrate this, the Sherman Act 1890 – one of the foundational antitrust legislations in the US – only holds monopolies unlawful if the position is acquired through “unreasonable” methods detrimental to consumer welfare. It must be noted though that these divergences generally have more philosophical than practical significance -as instances where antitrust laws apply are mostly similar.
Big Tech in Trouble:
Despite these nuances in the philosophical underpinnings of antitrust law among jurisdictions, Big Tech presents itself as the common challenger against antitrust regimes around the world. The latest Congressional hearing held this July where the world’s most powerful CEOs – Jeff Bezos of Amazon, Tim Cook of Apple, Sundar Pichai of Google, and Mark Zuckerberg of Facebook – throws this into sharp relief. Among the issues scrutinised by the US House of Representatives’ antitrust subcommittee were those relating to the companies’ alleged use of market concentration (the extent to which market share is divided among a small number of firms) to drive out competitors to further their successes.
How countries will respond to the growing demands for the rigorous regulation of tech monopolies now remain unknown but, the US antitrust subcommittee’s soon to be published report on the latest hearing may shed some light on how this may be done.
Challenges for the Future of Antitrust Law:
While there are reasonable grounds to assume that future antitrust laws will bear stronger arms against tech monopolies, a simplistic approach to this issue must be with caution. It is imperative that legislatures fully understand what it is they wish to protect through an antitrust regime: is it market competition or consumer welfare? Alternatively, these could be wholly different concerns. In South Africa, for instance, the repatriation of Black South Africans into the economy is one aim of the country’s antitrust regime.
A better understanding of the law’s objective will enable more effective legislation and enforcement. Admittedly, the line between protecting market competition and consumer welfare is blurred: protecting market competition generally protects consumer welfare as well.
However, it does not always follow that consumer welfare will be harmed if there is a dominant market player. A company that listens to its consumers and has strong business acumen will be able to adapt to new challenges. For example, Netflix’s recent business model reduced its reliance on third-party content by producing its own shows and developed Netflix Party to enable groups of people to view the same show in real-time from different locations. Such companies tend to outcompete their competitors while improving consumer experience and welfare.
Hence, the existence of dominant companies does not necessarily mean consumers are worse off. If the law were to dismantle dominant companies that achieve this success, it might come at the cost of consumer welfare. Here, the distinction between protecting market competition and consumer welfare becomes significant: if the latter were the goal, then regulators will have to look behind empirical evidence and gauge whether consumers are better off with or without the lack of competition. It will also be essential to distinguish between behaviour that is antitrust and smart business strategies – these are not easy tasks!
Looking forward, legislatures and the public may expect an upheaval of current antitrust laws in the tech sector. This will force tech monopolies to change their business strategies and hopefully improve consumer welfare. Before this happens, we should be prepared to ask and answer difficult questions about what we value and wish to protect!
Published on 30/08/2020