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Practical GDPR guidance for online businesses When you start an online business, or even just create a website, there is a lot of confusion on what needs to be done to comply with GDPR. As many online resources (including StackExchange) suggest, it is next to impossible to have a website and not fall under GDPR rules. Furthermore, there seems to be some confusion and back-and-forth on what is deemed compliant, and what's not. If you want to clarify how GDPR rules apply in your case, the usual advice is to "get a lawyer". However, this is not practical for many small starting online businesses that have no resources to pay for a full time legal advisor. So I am hoping to gather some practical tips about doing this without employing a lawyer. First, let me lay out some assumptions on the nature of the business: It is new and small in every sense of the word: a few dozen customers, $1k-2k monthly turnover It is based in UK It is not dealing with extra-sensitive data like bank account numbers or identity documents And now some specific questions: What would be the best strategy in terms of "cost vs reliability" to ensure GDPR compliance? Would it be practical to follow one of the many GDPR tutorials online to choose a proper hosting, security measures, etc? If I unintentionally use a non-compliant hosting configuration or a 3rd-party service like Google Analytics that transfers customers' data to a "unsafe" jurisdiction, what consequences is it likely to bring about? Are there any examples of this happening? How severe should data processing faults be for the business to be facing serious fines and lawsuits (vs. just fixing the fault and issuing an official apology)? What would be a sensible time to actually employ a GDPR advisor? Is this based on the kind of data that the company handles? On the number of customers? On the turnover? | It is entirely possible to reach a reasonable level of compliance in a DIY approach, provided that you familiarize yourself with the relevant legal framework. The UK ICO has produced in-depth guidance to help here, which is significantly more digestible than the laws themselves: ICO Guide to the UK General Data Protection Regulation (UK GDPR) For a first reading, it is probably appropriate to focus on the summaries and checklists at the top of each section. You will however notice that GDPR is a lot about principles, and requirements like selecting appropriate compliance measures yourself. On one hand, this means that you have some flexibility in your compliance approach, but it also means also that you can never be sure whether you're actually compliant. But this is also precisely why professional help can be valuable, since compliance professionals probably have a better overview of best practices, state of the art measures, and also potential pitfalls. In some other answers, I have written basic overviews/checklists to get started with a GDPR compliance effort. On to your concrete questions: What is the best strategy to get started with GDPR compliance? This is ultimately a business decision that you have to make. You have to consider how much compliance is worth to you, both in terms of time and money. Maybe you can DIY it, maybe you'll want to get professional help, maybe you'll just hope that no one ever sues you or lodges a complaint. There is no objective optimum, and only you know your particular situation. What are the consequences for unintentional infringement? Not being aware of the rules is not a valid defense (ignorantia juris non excusat). How are fines calculated? The GDPR has two separate enforcement mechanisms: data subjects can sue you for compliance and damages, and the ICO can fine you. Damages are typically small compared to the cost of a lawsuit. When issuing fines, the ICO must consider a variety of factor per Article 83, for example whether the infringement was willful or negligent. The ICO is not required to impose damages, and anecdotally many small problems can be resolved informally before it comes to a full investigation. In particular, the ICO's Regulatory Action Policy 2018 explains that “we will reserve our powers [to issue fines] for the most serious cases, representing the most severe breaches of information rights obligations. These will typically involve wilful, deliberate or negligent acts, or repeated breaches of information rights obligations, causing harm or damage to individuals.” The policy also provides a 5-step process for arriving at fines: removing financial gain, accounting for scale and severity of the breach, considering aggravating factors, ensuring a deterrent for others, and considering mitigating factors. This suggests that a good-faith effort to ensure compliance already goes a long way. When to get professional help? Under some circumstances, the GDPR requires that you appoint a data protection officer, who doesn't have to be an employee. You mention that you do not process sensitive data, so that it is currently unlikely you'd be required to appoint a DPO (compare Art 37, but note that the list of sensitive categories of data in Art 9(1) does not match your examples). The requirement to appoint a DPO depends entirely on the kind and scale of your data processing activities, not on number of employees or revenue thresholds. However, some GDPR compliance obligations like Art 30 Records of Processing Activities can also trigger when you reach 250 employees. Aside from that, it is a business decision whether and when to invest in compliance. Note that if your business offers goods or services to people in the EU/EEA, you may be required to appoint an EU representative. Some law firms offer package deals for DPOs + EU/UK representatives. | It is not different. But one company can decide to approach compliance differently from another. Here, TomTom has chosen a fairly safe/conservative interpretation, whereas Google and Apple decided that more data collection is appropriate. A “find my device” style functionality appears to be entirely unproblematic if the user books that particular service (regardless of whether the service is paid or gratis) and provides consent for the location data collection. The legal basis for such a service could then be Art 6(1)(a) consent or Art 6(1)(b) necessity for performance of a contract to which the data subject is party. Personally, I believe that Google is not sufficiently transparent about how Find My Device works, but that TomTom could provide a compliant service if they wanted to. That TomTom doesn't offer this service primarily shows that they don't think developing this service is worth it. Wiping a remote device is unrelated to this issue and doesn't seem to provide GDPR challenges. At least in a business context, remote wiping may be an appropriate security measure and may then even be mandated by the GDPR (e.g. see Art 24 or Art 32). | This is less of a compliance question, and more of an infosec question. On one hand, you want to be able to restore access to an account to users who have lost their access. On the other hand, you must prevent unauthorized access e.g. from hackers. These factors must be balanced. Whether you'll fulfil a data subject access request will generally follow the same criteria as deciding whether you'll reset someone's access credentials, so I'll mostly discuss identity verification in general. Trying to validate names is generally pointless from a security perspective, since the name on the account might not be real, or because validation documents like scans from a passport can be easily forged. When a service has identity validation measures like requesting a copy of photo ID, or requesting a photo of you holding up a validation code written on paper, that doesn't actually help validating that the person requesting access is the account owner, but that the person requesting access appears to be a natural person, and now documents about their identity are on file. A lot of information like names, birthdates, or addresses is also not at all secret and could be easily guessed by a malicious actor. Most websites work by equating access with control over an email account. If you can receive a password reset code over email, you have access. In effect, this delegates the responsibility of account recovery to the email or OAuth provider. So the issue is what happens when someone loses their email account, which is not entirely uncommon for accounts that are multiple years old. One reasonable (and likely GDPR-compliant solution) is to deny access when someone loses their account. Quite a lot of services operate this way. A milder form of this is to email the old address that someone is trying to take over the account, and turn over the account only if you have other evidence of ownership and there has been no reply over multiple weeks. Since this is part of an identity verification measure, I don't think the GDPR's normal 1 month deadline would apply. However, this approach is very risky: an attack can succeed through the mere inaction of the true account holder, and it would arguably be a data breach if you give access to the wrong person – safer for erasure requests only. Also, emails like “click here or we'll delete your account” look a lot like spam (I get a lot of those about alleged problems with my Paypal account). A potentially more reasonable approach is to use questions about the account to verify ownership. When did they create the account? When did they last use it? Can they answer questions about non-public content of the account? (But don't let an attacker choose the questions!) You see some older sites that ask the user to select a “security question” for recovery purposes. But this isn't a best practice – they are frequently the weakest link in an authentication system. If the user answers truthfully, the answer may be easy to guess or discover for an attacker. E.g. the infamous “what is your mother's maiden name” question is horrendously insecure in the age of Facebook. If the user provides a more secure answer, that is essentially just another password that's even easier to lose than an email account. High-value accounts typically offer a secondary authentication method as a fallback. E.g. my bank can send me new access codes via physical mail. GitHub can optionally link a Facebook account for recovery purposes. But these measures would be overkill for most cases. Especially collecting a physical address for the sole purpose of offering account recovery would likely violate the GDPR's data minimization principle, though it may be fine when the user opts in with freely given consent. To summarize: what you're trying to do is extremely difficult, because you've need to balance different security aspects: keeping malicious actors out, and letting legitimate account owners in. Whereas I'd resolve that by denying any account recovery or subject access requests, other approaches exists with other risk profiles. The GDPR requires you to perform reasonable identity verification measures, but what is reasonable depends on the business context and is ultimately an infosec question. | In German Law you need to give your agreement ("Willenserklärung") to a contract or in this case terms of service. This is done by telling the other part. In some cases this can also be implied by an action (example: putting your bottle of beer onto the cashiers table is an offer to buy this bottle). As a second criteria a "Willenserklärung" needs to be the exact will of the part that declares its will (the website user in this case) §§ 133, 157 BGB or that the other side (you) could only see so (not the case here as this mainly speaks of content). If you visit a website and there are terms of services, the "Willenserklärung" is only given when the user read and agreed to the terms. If he did not, the terms of service are not applied until the user agrees to them. So I would recommend to block the website until the user agreed (overlay) as you need to proof he did when in court. Additionally there are so called AGB's in Germany. Those are contracts that are used or planed for many (more than 3) uses and set by one side (you). This may apply here, so you need to follow a lot of other rules like making sure the user had access and agreed, then there are many content restrictions and so on... I recommend consulting a German Lawyer specialized on this topic as this is very complex and includes other German laws for Media too, depending on the content of your site and terms. Also note that everything said is only based on my own knowledge and can not be used as safe legal source. | You don't need to get consent to comply with GDPR Lawfulness of processing Processing shall be lawful only if and to the extent that at least one of the following applies: (a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes; (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; (c) processing is necessary for compliance with a legal obligation to which the controller is subject; (d) processing is necessary in order to protect the vital interests of the data subject or of another natural person; (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Sending a http request to a website falls under 6(1)(f). | You premise is correct. The processor is someone that processes data on your behalf, and since the GDPR definition of processing is extremely broad, that is about every third party subcontractor that you use for data processing, including various cloud providers. I'm afraid it will soon become a huge mess with a gazillion contracts to sign. I disagree. Yes, the GDPR says that a contract between the controller and processor must exist, but Article 28 of the GDPR does not say anything about how the controller shall document these instructions. Basically, in cases like the one you describe where John Doe relies on a web agency for having a contact form on the web, there will be a standardized (by the web agency) service agreement between the John Doe (controller) and the web agency (processor). There is nothing stopping the parties from agreeing that this service agreement that John Doe accepted as part of the onboarding procedure is also the DPA as required by the GDPR. Putting something like the following in the service agreement would do it: The parties agree that this Service Agreement between You (controller) and Us (processor) set out Your complete and final instructions to Us in relation to the processing of Personal Data and that processing outside the scope of these instructions (if any) shall require prior written agreement between You and Us. You also agree that We may engage Sub-processors to process Personal Data on Your behalf. The Sub-processors currently engaged by Us and authorized by You are listed in Annex A. I think we will se a lot of amendments in service contracts as the GDPR gets better understood, but I don't really see a flood of DPAs in addition to these amended service contracts. | As always, it depends. However, it is by no means certain that any public facing hobby project, such as a web app, is exempt from having to comply with the GDPR. Since the GDPR is only a few days old, we have of course no case law based upon the GDPR itself yet. However, when considering this, one should take the following two facts into consideration. 1. The "personal use exeption" in the GDPR is not new. The personal use exemption is unchanged from the article 3(2) of Directive 95/46/EC. (There as a lot of lobbying for removing "purely" from the sentence – but drafters wanted to keep it.) 2. Case-law under the previous regulation restricts the scope of the exception The ECJ has ruled on the scope of the personal use exception in two cases: C-101/01 C-212/13 In both these cases, the ECJ took an extremely restrictive view, and concluded that the personal use exemption did not apply to the processing done by these individuals. In C-101/01 it can be argued that the hobby project as a blogger was connected to the controllers professional activity (she was a catechist in a local church, and blogged about her work. including her colleagues). But in C-212/13, there no such connection to professional or commercial activity. Here, the controller operated a CCTV to protect his home, but set it up to also capture public space, and that was enough for the ECJ to decide that the personal use exception did not apply. Discussion Case-law based upon Directive 95/46/EC is in no way binding for a future court that need to rule based upon the GDPR. We need to wait for case-law decided under the GDPR to be able to have some degree of certainty about the scope of the "private use exception" under GDPR. However, given what we know about how the ECJ has ruled in these cases in the past, I think it is hazardous to think that just because what you are doing on the web is just a "hobby project" not connected to professional or commercial activity, you are exempt from complying with the GDPR. Conclusion IMHO, you may be exempt, or you may not be exempt. I think it really depends on your activity in your hobby project, and to what extent this project processes the personal data of other people than yourself. | If a data controller fails to fulfil your data subject rights, lodge a complaint with your data protection authority. In Hamburg, the appropriate form is here. However, they are not required to investigate your complaint. Independently from a complaint, you could consider suing Wordpress for compliance – Automattic has a subsidiary in Ireland so this might actually be feasible. I'm not quite sure though that Automattic is indeed the data controller for wordpress.org, as opposed to the .com domain – the privacy policy isn't quite GDPR compliant. While your GDPR Art 17 Right to Erasure might not apply in this case, there's a definite GDPR violation because the data controller failed to respond to your request within a month as per Art 12(4). That your posts on the bugtracker were deleted doesn't look like an issue in this context, what does matter is that they didn't respond to emails to the addresses mentioned in their privacy policy. Whether you have a right to erasure depends on the legal basis for storing your data. In general, you have a right to erasure if: the data is no longer necessary; processing is based on consent (because you can always withdraw consent); or processing is based on a legitimate interest and they have no overriding legitimate grounds to continue processing despite your objection (Art 21). The data is still necessary to identify you for your actions on the bugtracker, but depending on your particular situation you may be able to object successfully and force them to anonymize your posts. |
Does it matter legally whether possession notices, orders, and warrants served by post are sealed in envelopes? Are there legal benefits or detriments in terms of the rules of valid service whether such documents are sealed in an envelope or posted bare as postcards? If it is bare then there's less way to argue it could have gotten mixed up in the rest of the mail that one might or might not bother to open so one could easily imagine service requirements that these be posted unsealed. | england-and-wales northern-ireland General rule It doesn't make any difference. Section 7 of the Interpretation Act 1978 provides: Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. Provided you meet the following elements: Properly addressing Properly pre-paying Properly posting, then you can take advantage of the above deemed delivery rule. It also makes no difference whether or not the recipient "might or might not bother to open" it. What matters is when it was delivered. The rebuttable presumption is that the notice is effective when it would have been "delivered in the ordinary course of post" (e.g. next day for first class, etc.). To rebut that, the burden of proof shifts to the recipient, who must prove (on balance of probabilities in a civil case) that it was delivered late or not at all. In practice that will be extremely difficult in the majority of cases. You might try to make an argument that "letter containing the document" implies an envelope. However, in my view, the ordinary meaning of the word letter means a piece of paper with some written words on it. A letter is still a letter even when it isn't inserted in an envelope. "Contains the document" suggests to me that the document is found within the words written on the piece of paper. Exceptions The phrase "unless the contrary intention appears" means that if a particular Act contains its own rules of service which contradict Section 7, then Section 7 will be overridden. | I haven't used the extension, but here are the concerns I would have: Does RECAP detect and handle documents filed under seal? Under some circumstances, IIRC, Pacer gives certain attorneys access to documents sealed from the general public. If you access these sealed documents through PACER and thereby submit them to the RECAP public repository, you have violated the Court order sealing the documents and might well be found in contempt. It is not unheard of for a Court to order a document replaced by a corrected version; this is most common when a document was inadvertently filed with information not redacted that should have been. As long as nobody but the parties and their lawyers have accessed it, this can prevent that information from being public. If you log on to PACER and see your client's personal information...you can no longer keep it private by asking the Court for that remedy, because you just submitted it to a public repository. Enjoy your malpractice suit. Does the use of RECAP constitute a waiver of work product protection? Under some (admittedly limited) circumstances, your use of PACER might constitute attorney work product, which would ordinarily be protected from disclosure in a manner similar to a privilege. Revealing your research pattern to a third party could waive that protection. | There are three kinds of restraining orders in Minnesota, but what they have in common is that a person petitions the court to order a person to e.g. stop the harassment and have no further contact. This order if granted by the court will be served on the respondent, and all actual restraining orders are valid. A forgery which was not actually ordered by the court is not a restraining order, and of course it is not legally valid. But you don't seem to be claiming that this is a forgery. In principle, a person can obtain a copy of a restraining order under The Minnesota Data Practices Act. However, there are limits on access to certain records. Minnesota Court Rule 4 restricts access to domestic abuse and harassment records, blocking disclosure until the respondent has been served with the order. If someone fails to obtain a record in such a case, it could be because the request was made before the order was served. Even if the request was improperly denied, that does not invalidate the court order. Subsequent comments by OP indicate the possibility that he was not given the restraining order, as required by law, which would substantially impact the validity of the arrest. This handbook from the courts spells out the rules for handling these orders. If it is impossible to personally serve the notice on respondent (he can't be found), then it is possible for the court to order notice by publication, where an item is placed in the newspaper (legal notices, which nobody reads). In other words, you can be "served" in the legal sense, but not know it (however, the police will know it, so if BCA is saying "we can't find any restraining order", this would be a plainly improper arrest). | Is this legal? Yes Or does it mean that employee will be in breach of his/her contract? Yes You are assuming that if the evidence is allowed to be presented then that automatically means that keeping it for that purpose is not a breach of the contract. This is not necessarily so; it can be both at the same time. That said, it is unlikely that an employer would attempt to sanction an employee for this as the courts would (rightly) see it as an attempt to pervert the course of justice. As in most things in the law it is possible for all parties in a matter to be on the wrong side of it. If you want to come to the tribunal with "clean hands" then the best thing to do is make a record (not a copy) of the relevant documents and return then to the employer. Before going to the tribunal get your solicitor to subpoena the documents that you want - they will have to produce them and you have them without breaking your contract. | No, you would be guilty of perjury. In order to go through the legal formality, you have to obtain a license, Washington example (King County) seen here. You must swear that you are single, divorced, or widowed. If you leave the box unchecked, you won't get a license. If you are married and check any box, you have committed perjury. | Invasion of privacy and false light torts would probably not be applicable here. Very few states have adopted the false light tort because of its conflict with First Amendment principles and there was no agreement or even request to keep the text private. The copyright issue is trickier. First all, the TOS may provide that the copyright belongs to the text service provider or that there is a license. But, even in the absence of an express license, sending someone a message which is equivalent to sending them a letter, probably gives rise to an implied license that the person to whom it is sent can use the message that arises merely from the act of sending it without restriction or qualification. Implied license and fair use also heavily overlap. Publishing the text exactly as it was sent to you protects you from defamation liability because it is true. On the whole it would be extremely unlikely for there to be any legal liability for publishing a text from someone that they sent to you. Of course, one can imagine exceptions. If the person receiving the text was in an attorney-client relationship, or priest-parishioner making confession relationship, or was communicating regarding classified national security matters, or there was a non-disclosure agreement in place, among other possibilities, an evidentiary privilege and duty of confidentiality could apply and disclosing the material without the permission of the privilege holder could breach a duty of confidentiality and give rise to liability. If the picture was a nude picture of a minor, there could be a criminal and/or civil liability issue, and some states have also made posting "revenge porn" a criminal offense and/or a basis for civil liability. If the disclosure was effectively a way to facilitate insider trading that could be a problem. If the contents of the text were accurately transmitted but known to be false and were disseminated without disclosure of its falsity for the purpose of defrauding a third party, that could be a problem. But, no facts that obviously flag any exception are identified in the question. The mere fact that the posting may be embarrassing, or hurt someone's reputation, or was made without someone's express consent, in general, would not be a basis for liability. | You have the right to notify the owner of the car of their vehicular trespass and the consequences of that. You do not have the right to damage the car in giving said notice. You have the right to offer to clean the gum off whatever part of the car you stuck the notice to. If you succeed in cleaning it,the other party will not have a legal cause of action, in all likelihood, since there is no damage (though with a bit of imagination they might come up with some 'missed business opportunity' loss). The court would probably find your choice of sticker to be negligent (put the notice under the wipers? use painter's tape -get some if you don't have any). The rationale 'we had no other choice' holds no water: there are alternatives. 'Criminal Damages' is a concept in UK law, but it relates to willful damage such as vandalism, not accidents. It would be an issue if you had planned to cause damage, but that seems not to be the case here. | I did not write "confidential" on my letter, but I assumed a business proposal is automatically considered as a confidential material. An incorrect assumption unfortunately. Unless you have a confidentiality agreement (NDA) with the first company, they and their agents are not under any legal obligation to keep information you share with them confidential. How is the legal situation here? There is none on your side. You lied about a direct question asked and were caught in the lie. Company A had no obligation to keep what you sent confidential. Even if they did, that may not (depending on how the confidentiality agreement is worded) keep the employee of company A stating that they had received the same proposal. Chalk this one up to a lesson on confidentiality and honesty in business. There are no reasonable assumptions of confidentiality in business unless you specifically state that they are confidential or are provided as part of a confidentiality agreement. |
Which state's laws apply to online defamation? If a libelous statement is posted online, and the victim and offender are from different states, which state would be more pertinent to the defamation case? I.e. which state's defamation laws, statue of limitations, etc. are relevant? Can a lawyer licensed from any state handle such cases? | If a libelous statement is posted online, and the victim and offender are from different states, which state would be more pertinent to the defamation case? I.e. which state's defamation laws, statue of limitations, etc. are relevant? First of all, a basic point. Defamation claims arise under state law, even though state law is required to conform to the limits imposed by the U.S. Constitution. Also, there are two distinct issue to consider. One is which state's courts have jurisdiction to hear such a case, and the other is which state's law should be applied to each particular issue in the case which is called "choice of law". In practice, the two issues often overlap. But this isn't always true. For example, you can always sue a defendant where they reside (or in the case of a business entity, where its headquarters are located) on a claim arising anywhere in the world. The courts of this state have "general jurisdiction" over this defendant. But, suppose for example, that the defendant resides in Maine, but the defamatory statement was made in New York State by the defendant when the defendant was located there to people who were predominantly in New York State, and the statement was about someone who lived in New York State and things that that person supposedly did in New York State. In that case, if a lawsuit were filed in Maine against the defendant (since Maine would have "general jurisdiction" over the defendant), the courts of Maine might very well apply the law of New York State to most or all of the non-court procedure related legal issues in the case. The law of the place where the statement is made can apply, and the law of a place where the statement was intended to be directed (e.g. a state where a known subject to defamation resides) can be applied to a defamation case. But, the law of a place were people merely incidentally receives knowledge of a defamatory statement is not a proper law to chose or forum in which a lawsuit can be brought, if (1) the person making the statement was not directing the statement at someone in that state and (2) the person making the statement did not intend that the person to whom the statement is directed suffer reputational harm in that state. The default choice of law rules (in the absence of a contrary statute) apply the law of the place with the "most significant connection" to the legal issue being applied and the same state's law is not necessarily applied to all issues in the case. In the absence of a showing that another state's law differs from that of the state where the lawsuit is filed and that it has a more significant connection to the relevant legal issue in the case, the law of the state where the case is being tried will be applied. Many states have specific statutes regarding the application of a statute of limitations from another state than the one where the lawsuit is filed in order to discourage efforts to apply the law of whichever state has the longest statute of limitations, and to discourage filing case in a state just because it has a long statute of limitations. In practice, a lot of the substantive law of defamation is limited by federal constitutional First Amendment limitations and by a common English common law source for defamation law. So, the substantive law of defamation other than the statute of limitations isn't that different from state to state. But, in recent years, the biggest difference has been that some states have enacted Anti-SLAPP statutes (SLAPP is an acronym for "strategic lawsuits against public participation") that disfavor many kinds of defamation actions procedurally. The existence or lack of an anti-SLAPP statute in a state may make choice of law important in a defamation case. A recent case illustrates that it is hard to decide which states's law applies (via this blog around April of 2022). Former California Congressman Devin Nunes sues Georgia-headquartered, Delaware-incorporated CNN in Virginia for allegedly defamatory claims made in New York about Nunes' conduct in Austria. The case is transferred to New York, but still governed by Virginia choice of law, and the New York court determines that, under Virginia law, California law governs the claims. The California Congressman objects that Virginia law would have applied New York law. Second Circuit: Virginia law would have applied California law. Dissent: Virginia law would have applied New York law. Or maybe D.C. law. A comparative international analysis of the choice of law rules that would apply in the same fact pattern can be found here. See also a Florida federal court case applying these tests in 2019. Can a lawyer licensed from any state handle such cases? Usually a lawyer must be licensed to practice law in the state where a lawsuit is filed (but not in a state whose law is applied by an out of state court). A lawyer from outside a state where a lawsuit is commenced can seek admission to the bar of the state where the lawsuit is pending pro hac vice which is an admission for a single lawsuit. But, usually a lawyer admitted pro hac vice in a state court must be affiliated with a lawyer admitted to practice in the state where the case is filed as co-counsel for that case in order to do so. | In 2017 Illinois changed its law so that criminal charges for child abuse have no statute of limitations, and can be prosecuted as long as the accused is alive. This applies to all such crimes that occur after the new law was passed, and to all prior crimes on which the previous statute of limitations had not yet expired. See this news story on the change Previously, Illinois law allowed for prosecution for up to 20 years after the victim turned 18. Since the women Kelly is accused of having abused were 16 or younger in 1998 or later, the older statute of limitations would not have expired until at least 2020. More than 35 states now have no statute of limitations for child abuse. By the way, for civil actions, as opposed to criminal charges, the Illinois law now says: an action for damages for personal injury based on childhood sexual abuse must be commenced within 10 years of the date [a person turns 18] or within 5 years of the date the person abused discovers or through the use of reasonable diligence should discover both (i) that the act of childhood sexual abuse occurred and (ii) that the injury was caused by the childhood sexual abuse. The fact that the person abused discovers or through the use of reasonable diligence should discover that the act of childhood sexual abuse occurred is not, by itself, sufficient to start the discovery period under this subsection (b). Knowledge of the abuse does not constitute discovery of the injury or the causal relationship between any later-discovered injury and the abuse." (ILCS § 5/13-202.2(b)) Thus, a civil suit by one of the alleged victims might or might not be barred by time, depending on details of the date of the abuse and the victim's age. In short, do not take a drama as a source of legal advice. Look it up or ask a reliable source. | Can the subject actually sue me in England, or is it possible to sue only in the EU country I posted the article from, or in the US where the article is actually hosted? Yes. If the online encyclopedia is available in the UK, then you have libelled them in the UK and, indeed, in every country where it is available. They can choose to sue in and under the laws of any country where they were libelled. If the subject can and does sue in England, what happens exactly? This is laid out in the Civil Procedure Rules Am I correct in presuming that I will be notified of this by mail and asked to enter a defence? You will definitely need to be served with the Particulars of Claim, however, this may come by other methods than snail mail. If so, what happens if I ignore the matter? Will a default judgment against me necessarily be entered, or will the court duly consider the plaintiff's case, perform the bare minimum investigation/reasoning necessary to determine which arguments of theirs are (un)sound, and so possibly rule in my favour? A default judgement will be entered providing the Particulars of Claim show a cause of action on its face. The court will not examine any evidence or enquire into the veracity of the statements made on the Particulars of Claim. In short, unless the plaintiff has ballsed something up - you lose. If I do choose to respond, can I hire an England-based lawyer to handle everything remotely, or can I be compelled to physically attend the court in England? You are generally not required to attend court in a civil matter unless you need to testify. Even then, arrangements can be made for remote testimony. If the court rules for the plaintiff and awards damages, can this judgment be enforced in the EU, or would it apply only in the UK? It can be enforced in the EU. As a courtesy or by treaty, domestic jurisdictions will enforce foreign judgements in most cases. If the court rules in my favour, would I recoup my legal fees? You will probably recoup some but not all of your legal fees, say 50-60%. Costs orders are complicated - talk to your lawyer. | “Serious harm” is a requirement in the Defamation Act 2013 The Supreme Court interpreted it in Lachaux v Independent Print Ltd & Anor [2019] UKSC 27 (12 June 2019) at [10-20]: ... it not only raises the threshold of seriousness above that envisaged in Jameel (Yousef) and Thornton, but requires its application to be determined by reference to the actual facts about its impact and not just to the meaning of the words. You, as the plaintiff must prove on the balance of probabilities that you have or are likely to suffer serious harm. That is harm that is greater than the previous common law threshold of substantial. In this case, the court agreed that serious harm had been done so it’s useful to consider what Lord Sumption said about the evidence that had (correctly) convinced the trial judge at [21] (my emphasis): On the footing that (as I would hold) Mr Lachaux must demonstrate as a fact that the harm caused by the publications complained of was serious, Warby J held that it was. He heard evidence from Mr Lachaux himself and three other witnesses of fact, and received written evidence from his solicitor. He also received agreed figures, some of them estimates, of the print runs and estimated readership of the publications complained of and the user numbers for online publications. He based his finding of serious harm on (i) the scale of the publications; (ii) the fact that the statements complained of had come to the attention of at least one identifiable person in the United Kingdom who knew Mr Lachaux and (iii) that they were likely to have come to the attention of others who either knew him or would come to know him in future; and (iv) the gravity of the statements themselves, according to the meaning attributed to them by Sir David Eady. Mr Lachaux would have been entitled to produce evidence from those who had read the statements about its impact on them. But I do not accept, any more than the judge did, that his case must necessarily fail for want of such evidence. The judge’s finding was based on a combination of the meaning of the words, the situation of Mr Lachaux, the circumstances of publication and the inherent probabilities. There is no reason why inferences of fact as to the seriousness of the harm done to Mr Lachaux’s reputation should not be drawn from considerations of this kind. Warby J’s task was to evaluate the material before him, and arrive at a conclusion on an issue on which precision will rarely be possible. A concurrent assessment of the facts was made by the Court of Appeal. Findings of this kind would only rarely be disturbed by this court, in the absence of some error of principle potentially critical to the outcome. So, you must prove that it is likely that prospective employers/schools will see the defamatory statements and that they are so grave that it is likely that you would be refused a position because of them. | I don't believe Canada uses the public official/figure distinction. American defamation law uses the distinction to determine whether to require proof of actual malice, but Canada does not require proof of actual malice. Canadian defamation law has a lot of other parallels to American defamation law, though, especially in terms of privilege. I'd expect the University could claim any of several available privileges, including truth, qualified privilege, and fair comment. And because it's a government institution, it's conceivable that it might even claim absolute privilege, though I definitely don't know enough about their interpretations of the privilege to say one way or another. For a broad primer on defamation law in Ontario, you can check out this report from the Law Commission of Ontario. | I have bad news. California's vandalism law prohibits maliciously: defacing property with graffiti defacing property with inscribed material damaging property destroying property Chalking the sidewalk probably doesn't sound very malicious, but maliciousness includes “an intent to do a wrongful act, established either by proof or presumption of law.” So the questions is whether you intended to do a wrongful act -- meaning that you intended to do the act, which happens to be wrongful, not that you intended to act wrongfully. So unless you drew on the sidewalk accidentally, the malicious-intent requirement isn't going to help you. So then you have to ask if your conduct is described by the statute. In Mackinney v. Nielsen, the Ninth Circuit said that sidewalk chalking did not violate the law, but California has since amended the law to add the "deface with graffiti" language. I haven't seen any chalk cases since then, but another case, In re Nicholas Y., from the Second District, dealt with someone who used a marker on a window. He argued that it could be easily erased, but the court said it was still vandalism because: it "mars the surface with graffiti which must be removed in order to restore the original condition" the definition of "deface" "does not incorporate an element of permanence" "marring of the surface is no less a defacement because it is more easily removed." Given that language, I'd argue that the vandalism statute includes sidewalk chalking. But one important element here is that most sidewalks are owned or controlled by the government, so any effort to restrict "expressive conduct such as writing with chalk" (Guilliford v. Pierce County) expressive activity" there must comply with the First Amendment. The government has varying degrees of latitude on the restrictions it can impose, depending on the character of the space involved. So in a courtroom, whose function is incompatible with free-wheeling public debate, a judge can set quite a few rules about how people may speak. But sidewalks are considered a "public forum," where the government's ability to regulate speech is a lot more limited. So how does the First Amendment apply? There's a D.C. Circuit case (Mahoney v. Doe) dealing with abortion protesters who wanted to use chalk on the streets and sidewalks outside the White House. Police told them they would be arrested for violating D.C.'s defacement statute, so they brought a First Amendment challenge. The court upheld the law, saying that it satisfied all three prongs of the public-forum test: The law must be content neutral, meaning that it prohibits conduct without reference to what is being said. The Court said the defacement statute was content neutral because people could be prosecuted regardless of what they wrote or drew. The law must be narrowly tailored, meaning that it serves a significant governmental interest and does not restrict more speech than is necessary to achieve that goal. The Court said the defacement statute was narrowly tailored because it served the government's interest in maintaining the aesthetic appeal of the area in front of the White House and didn't restrict any speech that does not deface public property. The law must leave open ample alternatives for communication, meaning that even if you can't express yourself in the way restricted, you still have meaningful opportunities to express yourself. The Court said the defacement statute law allowed adequate alternatives for communication because the group could still congregate, march, speak, hold signs, and hand out leaflets. There's an interesting wrinkle there in terms of whether the interest in aesthetics is heightened because we're talking about the White House, but generally speaking, aesthetic concerns can still justify speech restrictions. So the bad news is that unchaining your inner six-year-old may subject you to criminal liability. That leaves the question of whether you want to unleash your inner teenager and do it anyway. This could help put you in a frame of mind for making the decision. | Your question (when read with your follow-up comments) is somewhat complex, so I am going to make a few assumptions and break it down into several sub parts. Assumptions The conviction occurred in a state where the expungement statute allows you to tell employers that you were never arrested and convicted. When you say “public records websites” you’re asking about sites like atlaspublicrecords.com. That atlaspublicrecords.com is a US based company. They don’t list an address and the website used a private registration services, so can’t easily determine that they are US-based. Your questions and follow-up Considerations After I get it expunged, will it be removed from public records websites . . . . No. Websites like atlaspublicrecords.com do not link to actual public records. I searched a couple of common names and feel safe in assuming that it only collects and publishes the information—it does not actually link to court records. Nevertheless, it would not be available from the actual government agencies that keep those records. By getting your records expunged the convictions and arrest would no longer be available as public records that someone could request from the courthouse, police department, or whatever state agency does criminal history in your jurisdiction. do I have to show them proof of the expungement . . . . Yes, if you believe what the website claims. I can’t find a physical address for the website and don’t know if they are real or a scam, so understand that when you give them information about your expungement—or pay their silly fee, they might collect the money and do nothing. My opinion is that the company is shady and seems to operate in a gray area of the law that I will explain below. Options if they don’t remove the post: You could try to sue them for some type of secondary dignitary tort like defamation or false light. But these would have some significant legal hurdles. See G.D. v. Kenny, 15 A.3d 300 (N.J. 2011), where the New Jersey Supreme Court held that commenting on an expunged criminal records was not defamation or invasion of privacy because it was the truth. You could try to argue that they are a consumer reporting agency under the Fair Credit Reporting Act (“FCRA”). If they're governed by the FCRA, you have some additional legal remedies (like civil penalties/fines) if they don't remove/clarify an expunged record. The Fair Credit Reporting Act applies to credit reporting agencies, like Experian & Equifax but also covers companies that compile and sell information for background checks. This includes criminal records. See the Federal Trade Commission’s Advisory Opinion to LeBlanc (06-09-98). But . . . this website is operating in a gray area that appears to comply with the law. The FCRA only applies to consumer reporting agencies, which are defined as: Any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports. 15 U.S.C. § 1681a(f) Because they’re not charging money or a fee to access the reports and they’re not a nonprofit cooperative, they probably do not meet the definition of a CRA. Bottom-line is that you're best option is to give them the expungement documents once you obtain them. | The answer is likely "yes" in both scenarios, because defamation can be either intentional or negligent. This is what the Restatement says: (1) Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed. . . . COMMENTS & ILLUSTRATIONS Comment: a. Manner of making publication. A publication of the defamatory matter is essential to liability. (See § 558). Any act by which the defamatory matter is intentionally or negligently communicated to a third person is a publication. . . . . . . k. Intentional or negligent publication. There is an intent to publish defamatory matter when the actor does an act for the purpose of communicating it to a third person or with knowledge that it is substantially certain to be so communicated. (See § 8A). It is not necessary, however, that the communication to a third person be intentional. If a reasonable person would recognize that an act creates an unreasonable risk that the defamatory matter will be communicated to a third person, the conduct becomes a negligent communication. A negligent communication amounts to a publication just as effectively as an intentional communication. Illustrations: A and B engage in an altercation on the street where there are a number of pedestrians. During the course of the quarrel, A in a loud voice accuses B of larceny, the accusation being overheard by a number of passers-by. A has published a slander. Restatement (Second) of Torts § 577 (1979). |
What is Reckless disregard for the Truth? If a person falsely accuses a public figure of cheating at chess, then takes actions that costs the public figure monetary damage. If despite lack of evidence, the person has a bona fide belief that there was cheating. Could that ever qualify as Reckless disregard for the Truth? | The fuller statement is reckless disregard for the truth or falsity of the statement. The reckless disregard for truth element in defamation claims requires a plaintiff to show that the defendant had serious doubts about the accuracy of the material. St. Amant v. Thompson, 390 U.S. 727 (1968). A summary of the holding of this U.S. Supreme Court case explains its holding: Recklessness requires a higher level of proof than ordinary negligence, so the reasonable-care standard is not appropriate. The defendant cannot avoid liability by testifying that he had a subjective belief that the statements were true. Instead, the jury must find through its consideration of all of the relevant evidence that the statements had been made in good faith. There was no evidence in this situation that St. Amant had entertained serious doubts about the veracity of Albin's accusations. The absence of an effort to check their facts did not rise to the level of actionable conduct. This decision clarified the requirement of malice in defamation lawsuits regarding matters of public concern. It does not mean ill will but rather knowledge of the information's falsity or reckless disregard of the truth. This means that if you just make something negative up without having any idea whether it is true or not, you can be guilty of defamation if it turns out to be false under U.S. law. But, reliance on a third-party whom you believe to have a basis for their allegations and republishing the third-party's claim is not reckless disregard for the truth if you have any reason to believe that the third-party is credible. One doesn't have to have personal knowledge of the facts. One can also have a reasonable factual basis for having a belief without knowing for sure that something is true from evidence that would be admissible in court or would definitely prove the allegation. For example, if the chess player's moves were atypical of that chess player's previous plays and showed insights that player had not shown before, that would provide a basis for the statement that would overcome a reckless disregard claim. | I have not found a case directly on point, but there is a case in the right neighborhood. In Flordia v. Carter 364 So. 2d 1249, Carter was charged with perjury for making a false statement under oath. He recanted his testimony in a letter to the defense attorney the next day. Subsequently he was charged with perjury: the trial judge dismissed the case based on his having recanted (which is a defense to perjury). The judge said (quoted in the appeal below and citing a relevant precedent Brannen v. Florida 114 So. 429) It matters not whether Carter knew his original testimony was false or whether he was merely mistaken. "The law encourages the correction of erroneous and even intentionally false statements on the part of a witness, and perjury will not be predicated upon such statements when the witness, before the submission of the case, fully corrects his testimony." The lower appeals court rejected the trial court's dismissal, saying Recantation is a defense to an allegation of perjury only where there is an acknowledgement of the falsity of the original sworn statement, a voluntary retraction of that statement, and a new statement which discloses the true facts. It is not a viable defense where the perjured testimony has substantially affected the proceeding or it has become manifest that such falsity has been or will be exposed. Otherwise, one could rest on his lie, allowing it to substantially affect a proceeding, and never retract unless the falsity had been exposed. This would provide no inducement or encouragement to tell the truth. That court basically felt it was based on the threat of being discovered, and felt that a particular state statute had taken away the recantation defense, so they reinstated the charge. The appeal to the Florida Supreme Court, Carter v. Florida 384 So. 2d 1255 basically declared that the appeals court was wrong about the statute (they officially held that recantation is a defense to perjury). They concluded that Carter gained nothing by recanting (that was a distinguishing feature in a precedent that the lower court favored). The dissent in this decision opined that It may be that the false deposition testimony by Dr. Carter was inadvertent and without criminal intent.... These, however, are factual issues and should be resolved by a jury rather than by the trial court on a motion to dismiss. What unifies all opinions on the matter is that a false statement made under oath must be recanted. The reason why Carter was not convicted was that he (possibly) was unaware that his testimony was false and he did recant when he became aware of the facts. | This is one of the things Martha Stewart was convicted of. 18 USC 1001 is the US federal law requiring truthfulness. That statute forbids you to falsify, conceal, or cover up a material fact. One limitation on how broad this law is, is that it has to be a matter "within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States". If your neighbor is an FBI agent and he asks if you're the one who broke his window, and you lie, that's not a federal matter. Another limitation is that the lying has to be material. The essential part of the law is subsection (a). Subsection (b) then states an exception: (b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding. Then you also owe a lesser duty of truthfulness to the legislature. Taking note of US. v. Yermian, it is not required that the person you lie to be a federal officer. Yermian lied to his employer, who was a defense contractor, and the fact that the relevant form was submitted to the government for scrutiny is what made it a matter in federal jurisdiction. Comparing the wording of 1001 to the perjury statute, the operative expression for perjury involves statements "which he does not believe to be true", we can see that the perjury statute requires telling the literal truth (see Bronston v. US), which allows so-called lies of omission (of a particular subtype: much more could be said about that). In contrast the lying statute forbids both literally false statements and concealing of the truth. I don't have cases at my fingertips that indicate how broad your truthful answers have to be, for example if you think the FBI is trying to put away a friend and ask you about what he did on June 14, and you know that he did a bad thing on June 13, would it be lying in the relevant sense to conceal that fact which they didn't ask about. [ADDENDUM] A session of perusing cases has led to a tiny bit of further information. A literal reading of the statute says that you are in violation of the law if you falsify a fact (sloppy epistemology, unless it refers just to altering records and evidence), or conceal a fact, and the courts recognise this as a fundamental division. As for falsifying, the way that has been applied is to refer to cases where the accused makes a statement which asserts something that he knows to be untrue. Thus, saying "No" to a question when the truth is "Yes" is a violation. A propos concealment, in US v. Diogo 320 F.2d 898 the court states that False representations, like common law perjury, require proof of actual falsity; concealment requires proof of wilful nondisclosure by means of a 'trick, scheme or device.' This case is pre-Bronston so there is mixing of concepts from perjury law and lying law, which would not happen now, but we can steering clear of their perjury citations. The crucial fact is that accused(s) were technically married in New York, for immigration purposes, and they were accused of a 1001 violation for having indicated that they were married. Part of the government's case was that such a marriage is not valid, and the court rejected that conclusion. The government's second prong was to maintain that the court "should affirm appellant's convictions on a theory of concealment", and this too the court rejected, saying "proof of their ulterior motives in marriage would not be tantamount to proof of willful and knowing concealment of these material facts". What they said on the forms was literally true, and they did not have a duty to volunteer information that they probably knew the government was interested in. Contrarily in a later case, US v. Zalman 870 F.2d 1047 we are told that the underlying purpose of a marriage is a material fact which bears upon the validity of the marriage, and that any false or fraudulent misrepresentation regarding the actual purpose of a marriage in order to gain status as a resident of the United States can be punished under 18 U.S.C.A. § 1001 so you have to be more truthful than the literal truth standard. There are also circumstances where there is an independent duty to give information, such as reporting income to the IRS. In US v. Hernando Ospina 798 F.2d 1570 the court maintained It is clear that in order to support a section 1001 concealment conviction there must be a legal duty to disclose the facts the defendant was convicted of concealing citing US v. Tobon-Builes 706 F.2d 1092, where again there was a legal duty to report "existence, origin, and transfer of approximately $185,200 in cash". In other words, it is not clear what information you are allowed to not volunteer when asked a question in a federal matter. | Based on the question, this was not perjury; if the officer did not review the footage, the fact that his testimony was in error indicates a mistake, nothing more. To even consider a perjury charge, the prosecuting authorities would need evidence that the officer knew the testimony was wrong when he gave it. You do not indicate the jurisdiction, so nobody can say whether an appeal would lie (since new evidence has come to light), whether the conviction could be quashed for procedural failure (if multiple requests for evidence were really not received) or whether a complaint could be made against the prosecutor, the defence lawyer, or even the judge. But no case has ever been strengthened by brandishing about words like 'perjury' without being able to substantiate them. | I don't believe Canada uses the public official/figure distinction. American defamation law uses the distinction to determine whether to require proof of actual malice, but Canada does not require proof of actual malice. Canadian defamation law has a lot of other parallels to American defamation law, though, especially in terms of privilege. I'd expect the University could claim any of several available privileges, including truth, qualified privilege, and fair comment. And because it's a government institution, it's conceivable that it might even claim absolute privilege, though I definitely don't know enough about their interpretations of the privilege to say one way or another. For a broad primer on defamation law in Ontario, you can check out this report from the Law Commission of Ontario. | Generally speaking, no. Assuming your lie did not cause some "legally cognizable harm" -- as in the case of perjury, defamation, fraud -- it is almost certainly protected by the First Amendment. United States v. Alvarez, 567 U.S. 709 (2012). | I'm sorry to deflate what is clearly a very philosophically interesting question, but the law is straightforward here. The truth, essentially, is the set of facts that you believe to be true. Yes. It means that you will not lie by omission, and that you will provide the relevant facts. No, you don't need to recount history since the first instant of the big bang. Only expert witnesses may answer by giving their opinion or evaluation. This is presumed accurate by their experience and where it is not accurate, the other side may present opposing expert witnesses to contest their conclusion or evaluation. Laypeople are permitted to answer only with their recollection of facts. Lawyers may not ask them what their opinion is, although by your definition every question is about opinion, since perception and memory is limited. But the question "What colour was Mr Smith's house?" and "What architectural style informed the facade of Mr Smith's house?" require different amounts of expertise and opinion. "Truth" isn't jargon, or even technical language here. I generally aim to be truthful, and so when someone asks me what time it is, I don't feel compelled to answer to the nano/picosecond. Would you call me a liar? Am I lying by omission? Similarly, if someone asks me what colour a car is, I don't feel compelled to say "I can't possibly know, because my perception may differ from yours. If you honestly feel that when someone asks you to be truthful about something, then you must either be lying, or lying by omission if you don't start your answer with the first instant of the big bang, your problem is not one of law. | You're wrong in the first sentence So I agree, that a hung jury is in fact reasonable doubt by lack of concurrence, the defendant should be acquitted. No. A hung jury just means they can't decide on any item they should decide about, for whatever reason. Maybe they all want to see the defendant guilty but can't decide if it is murder 1st or 2nd degree, or one of them is just trying to stay out of work and just is contrarian to whatever the jury deliberates, wether guilty or not guilty. In either case they can not tell the judge what they can't agree about. They can only tell the judge that they can't agree on a verdict. Since the judge can't assume anything about the deliberations, he can only reset trial and swap the jury for one that actually might be able to decide. The whole Jury is tossed out, their deliberations don't matter anymore - their hung state does not influence the re-trial. |
Do not do anything at work (Lazy) If in an office in a company (an office job in front of the computer what) well... in fact... I look at the screen of my computer, I freeze, I do nothing for... 6 hours then I I barely work 2 hours.. every day then I look at the time until the day is over, what am I risking? Because since I passed the trial period (in France), I'm immune to being fired, right? | You could look at this summary, which explains the formal requirements for sacking an employee (e.g. notice, the 'registered letter' requirement, etc). Also see this longer analysis of dismissal law in France. The issue you would be interested in is point 5, definition of unfair dismissal. There must be real and serious grounds for a dismissal to be deemed fair. Grounds may be personal or economic. Dismissal on personal grounds (art. L. 1232-1): the employer must justify grounds that are valid and related to the individual in order to proceed with dismissal. These may include professional misconduct, incompetence, inaptitude [sic], etc. An employee who is declared unfit by the physician must be reclassified by the employer, taking into account his or her capacities (Articles L. 1226-2 and L. 1226-10). There is a distinction between disciplinary and non-disciplinary misconduct, the former having three degrees (faute simple, faute grave, faute gross) and which seems to be about the concept "toxic work environment". The non-disciplinary grounds seems more clearly relevant, especially in that your conduct would negatively impact the execution of the work. But staring at a screen does not itself constitute a firing offense, the failure to perform work is where the problem comes from. Yes, if you don't do the work, you can be fired for not doing the work. | The employee must, during and after employment, without limitation in time, observe a duty of confidentiality regarding [...] the Company's internal affairs such as business plans, profitability, pricing, employees, methods, processes, routines, code and the like as well as other information that the Company typically wants to keep secret The pure information that the company had at some time a security problem with their product is internal knowledge you only gained through working there. By what is written here, you are indeed prohibited from speaking about it. If it were public knowledge, you could point to a press release and say "I did that, that was me fixing the problem". That would work. Because it doesn't share anything that isn't public anyway. But you cannot share things the company wants to keep secret. Finding out whether that contract is legally enforcable in your country and juristiction is the job of a real lawyer, but just as written, they are right. You signed a contract to not do that, not talk about it an certainly not publish it on the internet. So you should not do that, unless a good lawyer you trust tells you otherwise. That said, "I found a security flaw" is about as impressive as "I found a dollar on the floor". Maybe you can talk about your knowledge to prevent something like it happening. That says nothing about whether or not it happened in your old company, and for me as an employer it is much more valuable to have you on board with structured knowledge you can apply, than with your memories of being lucky once. | A special case is not paying the income tax that the company is supposed to be paying on behalf of its employees. If an employee makes £4,000 a month, and the employer is supposed to pay £1,000 tax and doesn't, that's not the employer's money, that's the employee's money. Not paying the employee's money is a much more serious matter than not paying your own taxes. A google search found this article http://www.gaebler.com/Not-Paying-Payroll-Taxes.htm which says that a person not paying taxes for employees is personally liable, that this liability does not go away with bankruptcy, and that jail is possible. So their advice is: Whatever other debt you have, paying taxes for your employees' payroll is the absolutely highest priority (higher priority than paying wages, paying the rent, paying company taxes and so on). | I can't find any law that would prevent an employer from requiring this. Under current Florida law, an employer can even demand passwords and access to an employee's social media accounts. A bill was proposed to prohibit this, but it hasn't passed. Generally, an employer can require anything they want as a condition of employment, as long as it is not illegal. Florida has at-will employment so the employer could certainly fire the employee if they don't comply. | IANAL, and as @GeorgeBailey suggests, you should ask one. That said, some aspects of your question are directly addressable with what we know. Does US law states anything about this? Yes. Federally this falls under the Wiretap Act, 18 U.S.C. §2511. Workplace monitoring generally falls under either the "System Administrator Exception" or under Consent. In general, continuing past a banner constitutes consent. Does company policy enforcement with such a warning over ride the right to not be subject to surveillance? In general, yes. You don't need to use the companies network if you don't want to consent - and they don't need to hire you if you don't want to use their network. But it's their network, and their rules apply. There are some nuances, and courts have found that the wording of the notice has made a difference in some cases, but overall, if the systems are properly posted with banners, then the employer may capture communications. See the "Bannering and Consent" section of this article from cybertelecom.org, e.g.: Even if no clicking is required, a user who sees the banner before logging on to the network has received notice of the monitoring. By using the network in light of the notice, the user impliedly consents to monitoring pursuant to 18 U.S.C. § 2511(2)(c)-(d). Note that stored data is covered by different laws than communications. It's a nuance. Is it ethical to sniff all the data without giving any other warning than the logon banner? "Ethical" is a very different question than "Legal", and largely more subjective. Most employers require signed consent for monitoring as a condition of employment, and use banners thereafter. That is ethical by my definition, in that it meets or exceeds the requirements of the law, and does not mislead or use subterfuge. The tone of your question suggests you find it distasteful, and therefore probably it violates your personal code of ethics. | Contracts can say all sorts of unenforceable things, you provided an example of one of them. A person cannot be compelled to stay and work somewhere they no longer wish to work. At the risk of getting my wrist slapped for straying too far into the land of opinion, a clause like this is likely intended to take advantage of naive teenagers who will provide free employment referrals because they think they have to. | Generally, what you say you will do in a contract is what you must do - there is no "the dog ate my homework" excuse. For your examples: Employment contracts have so much government regulation that the common law contract is lost in the mists of time. It is unlikely that a court would interpret an employment contract as requiring exact timekeeping; it is also unlikely that the person would have worked exactly 38 hours on every week except the one where they worked 37.5. However, if it were proved that the employee owed 0.5 hours to the employer they could be required to provide it or refund the pay they had received, barring a law that changed this. The dog must be walked. Alice must find a substitute walker if she is unable to provide it. Falling sick is something foreseeable that Alice should have provided for either in the contract ("if I am sick I won't walk the dog") or by arranging for someone else to do it. For purely personal services, falling sick may frustrate the contract, however, dog-walking is probably not personal enough. There is a doctrine which allows termination by frustration where neither party is at fault, however, it is not clear that this would apply. The building burning down is foreseeable and could (should?) have been addressed in the contract. If the destruction of the building was without fault on the owner then the contract is frustrated. If there was some fault on the owner (smoking in bed, inoperative fire alarm etc.) and the cleaner stands willing, ready and able (that is able except for the absence of a building) to perform their obligations, the owner would probably be obliged to pay, at the least for unrecoverable costs (e.g. wages) and loss of profits - if they pay for the cleaning products the cleaner would be obliged to deliver them up. One of the main reasons for the length of contracts for non-trivial transactions is they deal with these contingencies. | In-house counsel is presumed to be intimately familiar, in a way that retained counsel is not, with both the day-to-day operations of the business and its longer-term strategic planning. So imagine that you're in an R&D intensive industry, and you've been sued by a competitor. The competition's in-house counsel has served you a request to produce documents relating to the research that you're working on, your plans to monetize it, your assessments of the market, etc. Do you want someone to reviewing those documents on their way in to C-suite conference? Courts recognize that providing those documents to in-house counsel creates an almost unavoidable risk that that information will be (mis)used for purposes beyond the litigation. If you've only got your in-house counsel on the case, you can expect a court to be much more reluctant to enforce those kinds of discovery requests than it would be if you had outside counsel who isn't involved in the business. Vorys wrote a good article about this in 2004: http://ccbjournal.com/articles/4159/exclusion-house-counsel-discovery-sensitive-data |
By what mechanism does GDPR jurisdiction bind data controllers that operate outside the EU? If you process the data of data subjects resident in the EU then you are supposed to be bound by the GDPR no matter where you are located. Why care what the GDPR says if you don't have a presence in the EU? | Because most countries enforce foreign judgements You get prosecuted in the EU and have a fine imposed. If you have no assets in that jurisdiction they give the judgement to a court in your jurisdiction which issues a local judgement and seizes your assets. | That GDPR Disclaimer is no protection in some jurisdictions: the applicable laws to that situation in germany for example don't care about the GDPR: Cold calling, mailing, or e-mailing private people to advertise services all is handled by the same law: Without the consent it is expressly illegal under §7 of the law against unfair competition (Gesetz gegen unlauteren Wettbewerb UWG) and such cases are rather Slam-Dunk if the origin can be made out. The punishment can be a 300.000 € fine. The fact that to email someone you need their e-mail address and that e-mail addresses and private addresses are by default considered personally identifiable information is making it worse for the advertizer: Without either an exception (there is none available to cold-emailing) or special allowance of the person the data belongs to, you violate §4 of the federal data protection law (Bundesdatenschutzgesetzes BDSG) just by handling their e-mail address. That's a separate crime from the UWG one, adding up to another 300.000 € fine under §43 BDSG - or even up to 2 years in prison under §44 BDSG! Oh, and if the email does not contain a proper sender's address, that's another chance for a huge fine under the UWG... So, GDPR is your least trouble, if you violate the marketing laws of a country, or their own data privacy laws. A disclaimer means nothing as the act of sending the mail, even to an unintended addressee, is what is illegal and the law as written does not give a damn about 'I didn't want to advertise to that person' when in fact you sent them unwanted advertisements. Oh, and the very repository you suggest? It would violate the very same §4 BDSG and be illegal for processing private data if it was not actively asked to do that by the end user. As a result, that database is useless: It does kick back all people not in its database. Its database is incomplete because only few people give their address to that database as people not aware of the database never add their data on their own. So it regularly violates §4 BDSG with every German citizen's e-mail address it gets and kicks back, and claiming those addresses would be OK, it throws the company trying to check the database under the bus because they rely on data that is impossible to be reliable. tl;dr Don't do cold-(e)-mail marketing. You throw yourself into boiling oil with a lit torch in hand. further reading Other laws banning such behavior I had listed here, and I quote myself: The US has the CAN-SPAM-Act, which illegalizes sending unsocialised advertisements. You may NOT send a mail if any of the following is true: it has no opt-out the email was gained by 'harvesting' contains a header not matching the text contains less than one sentence the adressee does not have any relation to you In fact, you are liable for a 5-digit fine per infringing e-mail in the US. The FTC itself suggests to never buy e-mail lists - as E-mail harvesting or generating any possible e-mail adress itself is illegal. | The GDPR's right to erasure is not absolute. Simplifying things a bit, you only have this right if the legal basis for processing was consent, because consent can be revoked freely; or the legal basis for processing was legitimate interest and the controller does not have an overwhelming legitimate interest in keeping the data. Legitimate interest always requires that the controller's legitimate interest and the data subject's rights and interests are balanced. A request for erasure shifts this balance but does not decide it. In practice, a request for erasure may be denied if the controller has legal obligations to keep this data, for example financial records; or the continued processing of this data is necessary for performance of a contract; or the controller has an overriding legitimate interest in continued process of the data. Note that contracts may have effects that survive termination of the contract. Note also that a contract might not involve the data subject as a party to the contract, the classic example being a postal delivery contract that necessarily requires processing of the recipient's personal data. In your specific example it seems that the legal basis was legitimate interest and that the data controller has an overwhelming legitimate interest to hold on to parts of your data for the purpose of fraud prevention. If you feel like the continued processing of the data is illegal, for example because the legitimate interest balancing was done incorrectly, or because the legal basis was consent, then you have the following remedies: You can lodge a complaint with the responsible supervisory authority. You can sue the controller before a responsible court for compliance, and for the (actual) damages that you suffered as a result from illegal processing. I'll point out that neither of these approaches is likely to work for you, because abuse/fraud prevention appears like a pretty standard case of overwhelming legitimate interest. | The status of any PII (Personally Identifiable Information) is the same in GDPR regardless of location, or who enters it. Its goals are (among others) to stop any actor (company / government or other) from hiding responsibility about their use and practices around people's data. GDPR does even apply to anything offline and on paper. Basically it means you have to validate any entry field is free of PII before processing it. Or make it clear in your privacy statement how you handle this use-case. | First of all, although the GDPR is stated to apply to any site which processes the data of any person who is in the EU, it is not clear how a site not located in the EU, does not business in the EU, and does not primarily target EU residents as its audience can be required to comply with the GDPR. To the best of my knowledge, no such case has yet been brought, much less decided. There has also been some debate on whether an IP address constitutes Personal Data under the GDPR, and if it always does so, or only under particular conditions. The European Court of Justice (ECJ) held that (under the predecessor Directive 95/46/EC) that a dynamic IP address was personal data. But in that case the web site was run by the German Federal Government, which surely has wider scope for getting info from a German ISP than a small private US web activist does. There is not yet any case law that I know of on the applicability of the GDPR to IP addresses in any case at all similar to the one in the question. Joe would in my view be wise to at least learn that logs are being kept, and post a disclosure of this on the site. Whether Joe needs to do more than that is less than clear at this time. | When you use other services, the question is whether that service acts as an independent data controller, or as a data processor who only uses the data on your behalf. When engaging a data processor they must be legally bound to only use the data on your behalf, for example with a contract / data processing agreement (DPA). See Art 28 GDPR. Data processor status is attractive because processors are seen as an extension of the controller. In contrast, when sharing data with other controllers you would need a separate legal basis to authorize this sharing. Google offers tons of different services, so this question needs to be considered on a case by case basis. For Google Cloud services or Google Workplace, Google generally acts as a data processor. For other services, Google acts as a controller. Notably, Google Fonts does not offer a DPA so that you cannot claim they're acting as a processor in that context, regardless of what other Google services you use. An equally important problem when using Google services is the data transfer problem. Google is controlled from the US, but the US do not offer an adequate level of data protection (see the Schrems II judgement). Comparatively few Google services allow you to select where the servers are located, as to prevent transfers of personal data to countries where privacy cannot be guaranteed. For example, this is why Google Analytics (GA) is problematic. Google acts as a data processor for basic GA features but makes no promises about the location of servers. Thus, using GA implies a (probably) illegal transfer of personal data to the US. | Don't collect or process personal data Many (though of course not all) websites can easily be run without collecting or otherwise processing any personal data. The position of GDPR is that if you are not able to fulfil the basic, simplest core conditions for processing personal data (understanding what you're processing and why and why it's allowed, describing it in a privacy policy, having a non-underage person who's responsible for that) then you are not allowed to process personal data of other people. So don't. Build your website so that any personal data are not collected. | Legal framework Per Articles 4(1) and 4(2) of the UK GDPR, your email address is most likely personal data (and certainly is once you notify the data controller that it belongs to you), and the storage and use of that data constitutes processing. In order to process your personal data, the data controller must establish at least one of the six lawful bases set out in Articles 6(1)(a) to 6(1)(f). It's quite clear that none of those lawful bases apply in this situation. Hence, the processing is unlawful. Next steps Start by making a request to the data controller under Articles 14(1) and 15(1) for the following: A copy of all personal data (including the email address) which they hold in relation to you. The purpose of them holding the data. The legal basis on which they hold the data. That they erase all personal data which they hold in relation to you, pursuant to Article 17(1)(d) (unlawful processing of data). Per Article 12(3), the data controller is required to respond "without undue delay", with an upper time limit of 1 month (or 2 months if they notify you of the time extension within 1 month). Sadly, most data controllers in my experience seem to interpret this to mean that 1 month is the standard time limit, even though technically this is incorrect and the standard limit is "without undue delay". Pursuant to Article 12(6) the data controller can pause the clock by asking you for additional information if they have "reasonable doubts concerning [your] identity". If you send your request from the email address in question then they can't really have "reasonable" doubts, but be aware of this possibility in any case and respond promptly to any requests to confirm your identity so that the clock resumes. Most likely they will be unable to (correctly) provide an answer to points 2 and 3 above, since they do not have a genuine purpose or legal basis. If, after the maximum deadline has expired, they have still not responded and/or erased the data, you have two options: Complain to the ICO under Article 77(1). The ICO has the power under Article 83(5) to fine the data controller up to the higher of 4% of their turnover or £17,500,000. Complaining to the ICO is free and easy and is usually recommended over option 2. Issue a claim in the County Court for a compliance order pursuant to Article 79(1) and Section 167 of the Data Protection Act 2018. You also have the right to claim compensation for "material and non-material damage" (including distress) pursuant to Article 82(1) and Section 168, but this may be unrealistic in the case of a few unwanted emails. Option 2 is not free: you will need to pay a court fee and, unless you represent yourself, legal fees. There may also be additional cost risks if you lose the case. Mentioning the above two points in your request could be an effective way to persuade them to comply in the first place. |
What was the scope of the Norman influence upon the English legal system? Which aspects of the English legal system are characterized by clear influences from France? How is this reconciled with the different (civil/common law) paradigms? For example, the justices of the peace act 1361 was literally passed in French! How was the Norman conquest able to exert such immense influence on the legislative system, yet the common law paradigm managed to be preserved? | The common law is an Anglo-Norman hybrid, not an Anglo-French one At the time of the Conquest, neither France nor England had a consistent or uniform legal system. Instead, both had regional patchworks of law administered by local lords, sheriffs, and tradition. The Conquest was in 1066. The earliest recognizable common law concepts are about 200 years later. Civil law is even more recent - it dates from the Code Napoleon in 1804 although, obviously, this did not emerge from a vacuum with roots in Roman law. | Both civil law and common law have civil codes, so that isn't the difference. It is common in civil law jurisdictions for these to be called civil codes and consolidated into the great big book of law. In common law jurisdictions, the civil code is scattered through legislation, regulation, administrative and case law and often not consolidated although, each piece of legislation typically deals with only one (or a related number) of topics. Adversarial vs Inquisitorial In a common law jurisdiction, the role of the judge/jury is to decide the dispute that the parties have brought to the court based solely on the arguments and evidence that they make. A judge who seeks their own evidence or decides the case based on a law the parties have not argued is making a mistake. The judge is free to say to the parties "But what about xyz law?" and let them make an argument about that but they would be denying the parties natural justice if they decided the case on xyz law if that law was not argued. In civil law jurisdiction, the role of the judge/jury is to find out the truth. They have inquisitorial power and decide the case based on all the evidence, the law that was argued and their own knowledge of the law. Precedence In common law jurisdictions, the cases decided by the courts are just as much the law of the land as the acts passed by parliament. When a court hands down a decision on a certain fact pattern, then all courts lower in the hierarchy must make the same decision when presented by a similar fact pattern. These are binding precedents. In addition, decisions of same level or lower courts (where not actually the ones being appealed) as well as decisions in "parallel" jurisdictions are persuasive precedents. A parallel jurisdiction is anything where the law is close enough that it makes sense to use it: Australian courts will tend to look first to other Australian states, then to England & Wales, Canada, New Zealand and other Commonwealth countries then the United States of America and then to civil law jurisdictions. There is nothing nativist in this, it is just that these are the jurisdictions where the laws are "closest" to one another: partly because the courts have historically done this (which tends to lock the common law together), partly because there has been governmental will in creating harmonized laws in Australia (i.e. enacted in each state and territory but essentially the same law - often word for word) and partly because parliaments, when drafting legislation, nick ideas from other parliaments. If the Supreme Court of Western Australia has made a decision on a similar fact pattern under a similar law, a District Court judge in New South Wales had better have some damn good reasons for deciding this case differently but they wouldn't automatically be wrong if they did. However, if the precedent had been set in the Supreme Court of New South Wales than the District Court judge would be wrong to decide differently. Naturally, a lot of argument in common law courts is about why the facts of this case are sufficiently similar/distinct that the precedent should/shouldn't apply. Also, common law judgments emphasize the reasoning that led the judge from the evidence to the conclusion and include detailed analysis of the case each party presented - this is because they need to be understandable to a wide audience. Court hierarchy can be quite complex, this is the one for NSW, Australia: In a civil law jurisdiction, courts are not bound by the rules of precedence - each judgement is a first principles analysis of the facts and the law. This is not to say that civil law judges do not use other judgments in their analysis but they are not required to do so. Broadly speaking, the common law approach promotes consistency, the civil law approach promotes individualized justice. | Early in the history of the US, various states passed laws adopting the then extant common law and at least some of the statutory law of Great Britain (much of which was in origin the Law of England) as law in those states. Such laws would still be valid, unless later acts had amended or replaced particular provisions. Tracing which provisions had since been altered would be a massive task. Basic common law, particularly definitions of crimes such as fraud, theft, murder, and of torts such as conversion, slander, libel, and the like will probably be largely unchanged, with some modifications. Blackstone's Commentaries remained a significant legal text used in training lawyers and in legal practice in the US through much of the nineteenth century. | Current Place of Magna Carta in US law Magna Carta is not now a current statute in any part of the US. I don't think it ever was (not since the US became independent of the UK), but I am not sure of that. Its words influenced the drafters of the US Federal Constitution. In some cases it may thus be helpful in understanding the original intention of the framers, but probably The Federalist and the records of the debates of the Philadelphia Constitutional Convention are far more persuasive and more helpful. The major decisions of the Marshall Court are also very relevant. The US Supreme Court can and does change its interpretation of laws passed by Congress and of the Constitution. The words of Magna Carta are not more binding than Supreme Court decisions. In fact they are not binding at all, on any court or official in the US in any way. They are part of our legal history, but they are mnot current law, no more than the Code of Justinian or the Laws of Hammurabi are. The detailed procedural rules of Magna Carta are certainly not in fore in the US in 2022, nor in the UK either. The Ninth Amendment, which protects unenumerated rights of the states and the People does not protect,such procedural details, At least it has never been held to do so, to the best of my knowledge. I don't even know of a case where such a contention was seriously argued. The question states that: The meaning of “Due Process of Law” of the Fifth Amendment is, primarily, chapter 28 of Magna Carta and everything that built on it by judicial decisions. There is a sense in which this is true, but a very weak one. The concept of “Due Process of Law” was to some extent spelled out in Magna Carta, and later court decisions and legal and political philosophers (such as Locke) built on it. But most of the specifics of what constitute "due process" at the time of Magna Carta have since been dropped, and most of the current requirements were added much later. The idea of a hearing before an impartial tribunal, where the accused can present evidence, goes back to MC. Other requirements of due process, such as a right to a lawyer, rights against self-incrimination, rights against double jeopardy, the right of an accused to testify under oath, the right of an accused to issue subpoenas to witnesses, the right to an impartial jury, The right to be free of search, seizure or arrest unless probable cause has been shown under oath, and many others were added long after MC, some not until the 20th century. Such one-time aspects of due process as the right to be tried by members of one's own social class, a vital aspect of MC, are long gone, and never really existed in the US. Two-Witness Rule There was an early debate in a Supreme Court case, a perjury case if I recall correctly, on the need for two witnesses for conviction, but later statues have altered that rule. I don't know of any such rule ever applying to arrests in the US. It surely does not apply now. Coke and Magna Carta Early in the 1600s Lord Justice Edward Coke used the text of Magna Carta (among other things) to argue that Equity courts should not be able to use injunctions to stop cases pending in common-law courts. To do this he gave to Magna Carta a semi-sacred status it did not have when it was originally issued. (Indeed J.C. Holt, in his classic study Magna Carta, arguses that the charter was a victory for King John, and a defeat for the Barons, because the Barons allowed themselves to be bought off by promises that John never intended to keep, and that were not, in fact, kept. He further argues that it was the re-issues over the period 50-100 years later that gave MC what contemporary force it had, but that it was Coke's invocation of it that gave it the modern reputation as a foundation of freedom. I agree.) Coke claimed things for Magna Carta it could not have meant at the time it was issued, as the equity courts did not exist as an institution at that time, and would not for several generations. Charles Rembar, in his excellent non-technical history of Anglo-american law, The Law of the Land: The Evolution of Our Legal System (ISBN: 978-1-5040-1566-0; 1980) wrote (pp. 57-8): Early in the 1600s, Lord Justice Coke declared that neither king nor Parliament could transgress fundamental principles of common law. In time the proposition was true enough for king (also, academic: he himself could make no law, fundamental or trivial), but it has never held for Parliament; no one in office followed Coke along this line, not even Coke himself. Removed from the bench, he entered the House of Commons, and fought the Stuarts there. In the last stage of his long career, Coke asserted the utter supremacy of Parliament, an assertion which by the century’s end had become the constitutional law of England. The equation of "Due Process of Law" with "Law of the land" was part of this argument on Coke's part; it was, in effect, a piece of spin, which not all later scholars have noticed. "Due process" was, at beat, a part of the "law of the land", and it was always subject to modification by Act of Parliament (earlier, by acts of King-in-Council). It is true tht the US Supreme court has taken "Due process" in a procedural sense, to imply in most cases the right to a hearing, before an impartial tribunal, including a right to present witnesses and evidence, and that several of these principles are mentioned in Magna Carta, and come down to us from MC through much legal history. Magna Carta in the Case of Murray's Lessee In the case of Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1856) The US Supreme Court looked back throigh legal history to consider what is and is not permitted by the US Fifth Amendment, and its "Due process" clause. This is the kind of extensive excursion into legal history that was more common in Court opinions from the fist half of the Nineteenth Century that it is now. (Rembar remarked, on p 170 of The Law of the Land, "the Supreme Court, ... is fond of legal history and often gets it wrong.) But it is important to note how that opinion from the Taney Court (not the previous Marshall Court) used Magna Carta. The court wrote: [59 U. S. 277] We must examine the Constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. We apprehend there has been no period since the establishment of the English monarchy when there has not been, by the law of the land, a summary method for the recovery of debts due to the crown, and especially those due from receivers of the revenues. It is difficult, at this day, to trace with precision all the proceedings had for these purposes in the earliest ages of the common law. In short that court is interested in Magna Carta only as it has influenced US state and Federal statutes. It in no way states or implies that the exact procedure of Magna Carta must be that of the current US, or is assumed to be such in the absence of a statute changing that procedure. Rather it looks at how US States adopted procedures derived from MC as a guide to the meaning of the Due process clause. After discussing at 59 U. S. 278 what the procedure for retrieving money from tax officials who had allegedly retained it improperly under the statutes of the Tudors (already long after Magna Carta, although well before Coke) the Court wrote: [59 U. S. 278] This brief sketch of the modes of proceeding to ascertain and enforce payment of balances due from receivers of the revenue in England is sufficient to show that the methods of ascertaining the existence and amount of such debts and compelling their payment have varied widely from the usual course of the common law on other subjects, and that, as respects such debts due from such officers, "the law of the land" authorized the employment of auditors, and an inquisition without notice, and a species of execution bearing a very close resemblance to what is termed a warrant of distress in the act of 1820, now in question. It is certain that this diversity in "the law of the land" between public defaulters and ordinary debtors was understood in this country, and entered into the legislation of the colonies and provinces, and more especially of the States, after the declaration of independence and before the formation of the Constitution of the United States. ... [59 U. S. 279-280] Provisions not distinguishable from these in principle may be found in the acts of Connecticut (Revision of 1784, p. 198), of Pennsylvania, 1782 (2 Laws of Penn. 13); of South Carolina, 1788 (5 Stats. of S.C. 55); New York, 1788 (1 Jones & Varick's Laws, 34); see also 1 Henning's Stats. of Virginia, 319, 343; 12 ibid. 562; Laws of Vermont (1797, 1800), 340. Since the formation of the Constitution of the United States, other States have passed similar laws. This legislative construction of the Constitution, commencing so early in the government when the first occasion for this manner of proceeding arose, continued throughout its existence, and repeatedly acted on by the judiciary and the executive, is entitled to no inconsiderable weight upon the question whether the proceeding adopted by it was "due process of law." *Prigg v. Pennsylvania-, 16 Pet. 621; United States v. Nourse, 9 Pet. 8; Randolph's Case, 2 Brock. 447; Nourse's Case, 4 Cranch C.C.R. 151. Tested by the common and statute law of England prior to the emigration of our ancestors, and by the laws of many of the States at the time of the adoption of this amendment, the proceedings authorized by the act of 1820 cannot be denied to be due process of law when applied to the ascertainment and recovery of balances due to the government from a collector of customs It is to support this last conclusion on what is and is not Due Process under the Fifth Amendment that the Court examined history, including Magna Carta. All the rest of this discussion of history was Obiter Dictum not binding precedent. And of course, not Supreme Court precedent is binding on future Supreme Court rulings. The court can and does overturn its own decisions, and change its interpretations of the Constitution. Wooden v. United States and its citation of Murray's Lessee In Wooden v. United States (Mar. 7, 2022, No. 20-5279), Justice GORSUCH in his opinion concurring in the result, but dissenting from the majority opinion's reasoning, wrote, starting on page 6 of his separate opinion: Consider lenity’s relationship to due process. Under the Fifth and Fourteenth Amendments, neither the federal government nor the States may deprive individuals of “life, liberty, or property, without due process of law" Amdts. 5, 14. Generally, that guarantee requires governments seeking to take a person’s freedom or possessions to adhere to “those settled usages and modes of proceeding” found in the common law. Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 277 (1856); N. Chapman & M. McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1774–1775 (2012). And among those “settled usages” is the ancient rule that the law must afford ordinary people fair notice of its demands. See, e.g., Sessions v. Dimaya, 584 U. S. ___, – (2018) (GORSUCH, J., concurring in part and concurring in judgment) (slip op., at 3– 5). Lenity works to enforce the fair notice requirement by ensuring that an individual’s liberty always prevails over ambiguous law. Early cases confirm the message. In United States v. Wiltberger, a sailor had killed an individual on a river in China. 5 Wheat. 76, 77 (1820). But the federal statute under which he was charged criminalized manslaughter only on the “‘high seas.’” Id., at 93 (quoting Act of Apr. 30, 1790, § 12, 1 Stat. 115). Chief Justice Marshall acknowledged that other parts of the law might have suggested Congress intended to capture the sailor’s conduct. 5 Wheat., at 105. But he insisted that “penal laws are to be construed strictly” because of “the tenderness of the law for the rights of individuals”—and, more specifically, the right of every person to suffer only those punishments dictated by “the plain meaning of words.” ... United States v. Mann tells a similar story. 26 F. Cas. 1153 (No. 15,718) (CC NH 1812). ... As the framers understood, “subjecting . . . men to punishment for things which, when they were done, were breaches of no law . . . ha[s] been, in all ages, the favorite and most formidable instrumen[t] of tyranny.” The Federalist No. 84, pp. 511–512 (C. Rossiter ed. 1961) (A. Hamilton); see also McBoyle v. United States, 283 U. S. 25, 27 (1931) Although it is not likely that a criminal will carefully consider the text of the law . . . fair warning should be given to the world in language that the common world will understand The first thing to note is that this is not a majority opinion, and so not binding law. Indeed another opinion in this case specifically responds to Justice Gorsuch's views, taking issue with them. The next thing to note is that while the opinion does cite Murray’s Lessee, it never so much as mentions Magna Carta, nor does it quote any of the mentions of Magna Carta in Murray’s Lessee. Justice Gorsuch cites Murray’s Lessee to support two principles. One is the "rule of lenity" whch says theist when there is ambiguity in a criminal statute, it shall be read so as to favor the accused. The other is the "rule of fair notice" which says that a person shall not be convicted of crime unless some law clearly makes the actions charged criminal. Justice Gorsuch derives both of these from the Due Process clauses of the Fifth and Fourteenth amendments. To establish this, he cites, not Magna Carta, nor cases from Tudor times, nor US cases from before the Constitution, but US Supreme Court cases written by Justices Marshall and Story (both members of the Marshall Court), and one of the numbers of The Federalist (often considered a good guide to the intentions of the framers). Nothing in this citation implies that the detailed procedures of Magna Carta are now in force, nor that they ever were in the US. It applies only a general rule of law, not a detailed procedure, and that on the basis of US Supreme Court precedent, not because Magna Carta says so. The Great Charter may have been one of the earliest statements of these rules, but it is the reconfirmation of them, in case after US case, that makes them part of US law today. | There is no one answer, but here are some examples. India is famous for deriving general principles of more important constitutional law concepts that can be used to find constitutional amendments to be unconstitutional. The U.S. has not gone to that extreme but does derive constitutional protections for the overall scheme of the constitution and from the legal context of the nation when constitutional provisions were enacted that don't obvious flow from the text of the legislation (e.g. the 11th Amendment to the U.S. Constitution) has been interpreted to establish state sovereign immunity that the text of that amendment does not expressly provide for). Another somewhat weird source of law in the U.S. (constitutional at the federal level and usually common law at the state level) is that the 21st century right to a jury trial in a civil case depends upon whether the claim would have been litigated in England in 1789 in the courts of law or the courts of chancery in England. Customary international law is a thing. It also often arises from international practices or diplomatic norms, rather than tribunal adjudications. In the jurisprudence of the legislative process and some aspects of federalism, historical practices that have not been litigated are frequently resorted to as a source of law. For example, the question of whether a legislature is in recess has been resolved based upon historical practice. Prior to the French Revolution, customary practice was an important source of law in France. Customary practice was an important source of the English common law. In many British colonies and former British colonies (e.g. South Africa and Kenya and Sudan), lower tribal or village courts were often expressly permitted to apply local custom in their decision making. In the U.S., a collection of secondary authority texts compiled by the American Law Institute, an affiliate of the American Bar Association, called the Restatements, which summarize in codified form, various subjects in common law, are often used by courts as a source of law where there is no case law on point in a jurisdiction. In civil law countries, the leading legal treatises of law professors are an important source of interpretive authority of the civil code and other major codification of the law. Most Islamic countries provide in their constitutions that Islamic law is the highest authority and supersedes any secular law including other provisions of the constitution to the contrary. In many parts of the United States, mostly in the west, but also in Florida and Louisiana, property rights arising under Spanish/Mexican law, or under Native American law continue in force even though they derived from legal systems other than U.S. statutes and common law. See, for example: Tribe: We have "aboriginal title" to these lands in New Mexico because we had exclusive occupation of them from around 1300 to 1650, and then still used them a lot since then. Further, the "sovereign" (the U.S.) has never properly taken them away, so they're still ours. District court: No. Tribe on motion to reconsider: How about just these bits of the lands? District court: Still no. Tenth Circuit: There's still a claim for one of the bits. Concurrence 1: No bits for you. Concurrence 2: Two bits. (Source) | You are deeply confused, probably by the blogs of a conspiracy theorist (perhaps discussing the Sovereign Citizen Movement mentioned in the comments), whom it would be helpful for you to reference. In fact, people with and without lawyers claim common law rights in the ordinary courts of the UK every day, in the lion's share of civil lawsuits. For example: There is a common law right to sue for damages when someone breaches a contract by not paying a bill that they owe. A defendant, meanwhile, has a common law right to defend against such a suit on grounds, for example, that the debt has been paid or that the debt is not owed because there was no agreement to pay in the first place. The substantive right of an owner of real property to evict a tenant who breaches a lease arises at common law, even though statutes spell out the process for enforcing that right. Furthermore, the way that ownership of real property is established (i.e. through a chain of title involving purchases by deeds) likewise arises at common law. The defendant meanwhile has a common law defense to a claim for rent for the remainder of the period in a lease after an eviction for failure of the landlord to mitigate damages if the landlord does not make a reasonable effort to find a new tenant. The right to sue someone who negligently caused an accident that injured you is a common law right. | In england-and-wales and scotland, no. At common law, with a hefty influence from Roman writers such as Gaius who tackled the topic, gradual changes in a natural boundary are distinguished from others. This is usually encountered in the case of a river, whose course may change slightly from year to year. New deposits are laid down and other parts are eroded, generally imperceptibly. These processes are called alluvion and diluvion, and distinguished from avulsion where a chunk of identifiable land is washed downriver. Deliberately-induced changes are also different. For those slow and natural changes, the position is that where ownership of the land is defined with reference to the natural boundary, the extent of ownership also changes when the boundary moves. This is a sensible rule in the absence of modern surveying methods, and generally matches what people expect - I own the land on the south bank, you own it on the north, and it doesn't make sense for me to gain a sliver of land on the other side if the river should happen to meander a bit. It is possible to override that assumption by agreement between the landowners (or else litigate it) but that is the starting point. The sea works in the same way, except that the "landowner" on the other side is the Crown. (Quotation marks because it is not the same kind of ownership that ordinary people exercise.) The intermediate area, the foreshore, has its own rules, so in fact there are multiple boundaries to think about - the mean high water mark, the mean low water mark - but it's the same idea. The foreshore might be owned by the Crown, as the sea is, but maybe by somebody else. Perhaps what was my land is now underwater at high tide, but exposed at low tide; and some other bit of land used to be foreshore and now is totally submerged. Everyday tidal changes do not affect ownership, nor do unusually large tides either way. But if I own land next to the sea, I may gain some land, or lose it, by natural action. Gradually rising sea levels move the tide lines and the property rights follow. Some riverbeds are also owned by the Crown, so the same principle is at work there too for the motion of Crown boundaries. The rationale for why the Crown owns these places is not clear: there are several possible explanations to do with it being for the common good, or alternatively just an old feudal rule. That might affect adjudication of rights in some cases, such as for access to the "new foreshore" for particular activities: see R (Newhaven Port and Properties Ltd) v East Sussex CC [2015] UKSC 7 for an investigation of the public right to swim on an English beach. Even in the case of Udal law in Orkney and Shetland, ownership does not extend to the sea beyond the low-tide mark, since the Crown has sovereign rights (Shetland Salmon Farmers Association v Crown Estate Commissioners 1991 SLT 166). In land registration, a boundary marked on a cadastral map is not taken as authoritative when the underlying geographical feature moves. That's in the Land Registration Act 2002, section 61(1) for England and Wales, and the Land Registration (Scotland) Act 2002, sections 66 and 73(2)(i) in Scotland. Courts have inferred that a boundary coinciding with such a feature is "meant" to be this way, even if it wasn't defined like that in words - see for example Southern Centre of Theosophy Incorporated v The State of South Australia (Australia) [1981] UKPC 41 in the Privy Council. So, even if the map shows my coastal property apparently extending into the large blue area, that is not the real situation - it just means that the registries are not required to keep those maps up to date when the waters shift. | Parliamentary Supremacy was established by the Glorious Revolution of 1688 in which James II & VII was deposed by Parliament, and the line of succession was changed by Act of Parliament to favor William and Mary. Key laws passed during the aftermath of the Revolution included the Declaration of Right (which forbade keeping a standing army without Parliamentary consent, and put control of the military in Parliament), and the Coronation Oath Act 1688 which established in law obligations of the monarch. Since 1688 it has remained the governing principle of English (later British and UK) law that ultimate authority lies in Parliament, not with the monarch, and that Parliament can at any time depose a monarch for failing to act properly, and can settle the line of succession to the crown. A British King or Queen who tried to exercise dictatorial power, or even to use remaining Royal Prerogative powers to assume personal rule, could and quite likely would be deposed. |
List of countries embargoed by the US? Where can I find the authoritative, up-to-date list of countries that are currently embargoed by the United States of America? Note that embargoed is distinct from sanctions. I specifically want to find the list of countries with which US companies are not allowed to do business. Where can I find this list of countries under US embargo? Not from a third-party, but from the US government source that maintains the list of embargoed nations? | The US government is not required to publish a single list of "embargoed" countries, however defined. They are, however, required to publish the legal underpinnings of any restriction. This takes two forms. First, Congress must pass some law that enables the restriction. This page hosted by the Senate explains how to find such laws, however, it only goes back so far. You can find all of the US Code on the House US Code website. Usually, any change of sanctions don't require new legislation. The second set of publications are executive orders and executive-branch regulations, which are published in The Federal Register. For example, this is an executive order (February 21, 2022) regarding blocking of certain persons and transactions related to Russia's invasion of Ukraine. The Bureau of Industry and Security, Department of Commerce then published an implementation of that order, which is published in the Federal Register. The Office of Foreign Assets Control, Dep't of Treasury later published licenses related to this. The obvious problem is that hundreds of pages of information are published in the Federal Register every day, so keeping up with the rules is challenging. A partial substitute would be to check the web page of each department that might be involved in promulgating such regulations. The Dept. of Treasury has pages on financial sanctions. One thing they provide is useful information about is list of countries that you need to worry about in terms of U.S. sanctions: there is no list. As they explain, U.S. sanctions programs vary in scope.Some are broad-based and oriented geographically (i.e. Cuba, Iran).Others are “targeted” (i.e. counter-terrorism, counter-narcotics) and focus on specific individuals and entities.These programs may encompass broad prohibitions at the country level as well as targeted sanctions.Due to the diversity among sanctions, we advise visiting the “Sanctions Programs and Country Information” page for information on a specific program. OFAC’s Specially Designated Nationals and Blocked Persons List (“SDN List”) has approximately 6,300 names connected with sanctions targets. OFAC also maintains other sanctions lists which have different associated prohibitions. Many individuals and entities often move internationally and end up in locations where they would be least expected.Accordingly, U.S. persons are prohibited from dealing with SDNs regardless of location and all SDN assets are blocked.Entities that an SDN owns (defined as a direct or indirect ownership interest of 50% or more) are also blocked, regardless of whether that entity is separately named on the SDN List. Because OFAC's programs are dynamic, it is very important to check OFAC's website regularly.Ensuring that your sanctions lists are current and you have complete information regarding the latest relevant program restrictions is both a best practice and a critical part of your due diligence responsibility. The Dep't of Commerce has a less-useful list, the entities list, and also a Trade Enforcement web page. You should note that sanctions against the Central African Republic stem from Executive Order 13667 of May 12, 2014, but the Dept. of Treasury amended the regulations as of September 29, 2022 not in response to a new executive order. This is reflected on the Treasury Dep't web page on sanctions. It is unknown, and perhaps unknowable, whether the Dept. of Commerce will promulgate any foreign sanctions regulation that are not mirrored on the Treasury Dept. web page. In the case of the CAR sanctions, the executive order directed Treasury to write rules, though the Sec'y of State also received ordered (not related to financial sanctions). | The United States would be one such country. I'm sure it is not the only one. In the case of countries with constitutional courts there is basically no one to second guess their interpretations which is also true when the apex court in a country provides an opinion. Since no one can overrule many of these courts, they are allowed to do what they want. | According to the Wikipedia article "List of countries' copyright lengths" the only country currently having no copyright law is the Marshall Islands, and that country is said to have a non-copyright-based law providing that "Unauthorized sale or commercial use of sound & audio-visual recordings is prohibited"[1] However, if a person goes to the Marshall Islands, makes unauthorized copies of works there, and posts those copies to the net, the copyright owner could obtain an injunction under US copyright law requiring the site operator or host to remove the infringing content or be shut down.[2] Similar orders can be obtained under the laws of other countries. In addition, the copyright owner could send a takedown order under the US Digital Millennium Copyright Act (DMCA).[3] A copyright suit could be brought by the copyright owner in any country where the unauthorized copies are distributed and, if damages were awarded, property subject to the jurisdiction of the court could be seized to pay them. In the US, infringing copies could be seized by customs officers when they are imported into the US.[4] Also, If an infringement suit is won, the court an order any infringing copies to be seized adn destroyed.[5] Conclusion Of course, if such copies were made in small numbers and distributed privately, the copyright owner might not learn of it. And in any case the copyright owner might not choose to take legal action. But merely making such copies in the Marshall Islands will not make the infringer safe from civil actions, nor will it make the copies lawful in the US, nor in most other countries. Notes [1] Unauthorized Copies of Recorded Materials Act, 1991 [20 MIRC Ch.2]". [2] 17 USC 502 (a) provides: (a) Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright. [3] 17 USC 512 (c)(1)(C) and 17 USC 512 (c)(3) [4] 17 USC 602 (a) provides: (a)(1) Importation.—Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501. (a)(2) Importation or exportation of infringing items.—Importation into the United States or exportation from the United States, without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either constituted an infringement of copyright, or which would have constituted an infringement of copyright if this title had been applicable, is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under sections 501 and 506. [5] 17 USC 503 (b) provides: As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced. | Countries can prosecute people for their actions in any part of the world, but generally only do so for certain crimes. In other words, whether the country is likely to assert extraterritorial jurisdiction depends a lot on what "action A" is. For example, many countries reserve the right to prosecute crimes against humanity and similar violations of international law in their national courts. The accused need not be a citizen of that country. The US can prosecute its citizens for having sex with children anywhere in the world. On the other hand, a US citizen doesn't need to worry about being prosecuted in the US for a relatively minor crime if the action occurs in a foreign jurisdiction, such as for possessing a controlled substance. | Can he name a particalur one, like Linkin Park? Or that would be considered non-allowed type of advertising? Generally speaking, that does not constitute unlawful advertising. Public figures are allowed to broadcast their preferences on issues that are more sensitive than topics of music. There might be few, rare exceptions where something like this would be outlawed, but most likely that has to do with a regime's censorship of specific bands or music styles rather than with a general prohibition. | Are online stores supposed to state the true “order cost”/value of an order on the package/envelope for the customs? Yes Is it common practice to slash 10x off of the price for the customs to not add various fees? Common? Probably no. Uncommon? Also, probably no. Isn't that illegal? Yes Of course, they can claim it was a mistake if ever found out, but if they do it consistently, that seems difficult... Not to mention there must be electronic proof of how much each order actually cost the customer? Yes Look, robbing banks is illegal but people still rob banks. Similarly, ripping off HM Revenue & Customs is illegal but people still do that too. In fact, far more people do that than rob banks. | While I haven't read the full agreement (trade deals aren't exactly riveting), there seems to be a few gaps in the arguments given. Here's Article 24.18(3) (PDF link): Each Party shall base its fisheries management system on the best scientific evidence available and on internationally recognized best practices for fisheries management and conservation as reflected in the relevant provisions of international instruments aimed at ensuring the sustainable use and conservation of marine species. In my opinion (since I can't find too much independent commentary on this point), the US would only be required to abide by UNCLOS insofar as it relates to fisheries management. UNCLOS covers a much wider range of topics than just fisheries. There appears to be no commitment beyond that. On the other hand, there's no dispute that UNCLOS is one of those "international instruments," as it's referenced in the footnotes to this section. Also, since the US is not party to UNCLOS, dispute resolution would be through the panels established by Article 31 (PDF link), not through UNCLOS tribunals which might otherwise be possible between Canada and Mexico, as per 31.3, for example. | USA: 19 USC §1308 prohibits the import, export, or interstate sale of cat or dog fur: (1) In general It shall be unlawful for any person to— (A) import into, or export from, the United States any dog or cat fur product; or (B) introduce into interstate commerce, manufacture for introduction into interstate commerce, sell, trade, or advertise in interstate commerce, offer to sell, or transport or distribute in interstate commerce in the United States, any dog or cat fur product. A brief summary of state laws can be found this article at the Animal Legal & Historical Center: A handful of states have laws concerning dog and cat fur. Alabama, Delaware, New Jersey, New York, Pennsylvania, and Virginia prohibit trade in domestic dog or cat fur. Virginia also prohibits killing a dog or cat for its fur, while Florida prohibits killing a dog or cat with the “sole” intention of either selling or giving away the pelt of the animal. In Oregon, a person cannot buy or sell dog or cat fur that is obtained from “a process that kills or maims the cat or dog.” UK: In the UK, the trade in cat & dog fur was banned by the The Cat and Dog Fur (Control of Import, Export and Placing on the Market) Regulations 2008, which were in turn passed to follow EU Regulation #1523/2007: The placing on the market and the import to, or export from, the Community of cat and dog fur, and products containing such fur shall be prohibited. More information about the legal consequences and enforcement of this law can be found at this review article. Finally, note that Cruella de Vil's actions did not involve trade in dog or cat fur; she acquired most of the puppies via legal means, and was planning to kill and skin them for her own personal use, not to sell the resulting articles to other parties. As such, I believe that her planned course of action would have been legal in the UK and in all US states except Virginia. The only unquestionably illegal act she undertook was directing Jasper & Horace to steal Pongo's and Perdita's puppies. |
Do government incentives for males to change gender violate human rights laws? Please note the following: I'm not seeking legal advice (already checked with a lawyer), rather I'd love to hear others thoughts/conclusions For the sake of simplification I am using approximate USD at present exchange rates While I am describing this from my perspective (since I'm affected by it) about 40,000 people are affected every year I tried to obfuscate my country as I want to hear how it is handled/seen in your country The human rights state: All human beings are born free and equal in dignity and rights. My understanding is that this statement is independent of gender. I also would like to quote our federal constitution: Art. 8 Equality before the law 1 Every person is equal before the law. 2 No person may be discriminated against, in particular on grounds of origin, race, gender, age, language, social position, way of life, religious, ideological, or political convictions, or because of a physical, mental or psychological disability. 3 Men and women have equal rights. The law shall ensure their equality, both in law and in practice, most particularly in the family, in education, and in the workplace. Men and women have the right to equal pay for work of equal value. 4 The law shall provide for the elimination of inequalities that affect >persons with disabilities. And, later: Art. 59 Military service and alternative service 1 Every [name of the country] man is required to do military service. Alternative civilian service shall be provided for by law. 2 Military service is voluntary for [name of the country] women. 3 Any [name of the country] man who does not do military or alternative service is liable to pay a tax. This tax is levied by the Confederation and assessed and collected by the Cantons. 4 The Confederation shall legislate for fair compensation for loss of income. 5 Persons who suffer damage to their health or lose their lives while doing military or alternative civilian service are entitled to appropriate support from the Confederation, whether for themselves or for their next of kin. This clearly contradicts the idea that males and females have the same rights and duties. While this is still somehow acceptable (you also would want the ones who are best for the task, not just everyone) the tax for those who are not allowed (!) to do the service in my eyes is not. Like in my situation, it was that I went to military, but during service I got rejected because of my health. I am not even allowed to do civil service. Law now requires me to pay 3% of my income, but at least 400USD every year – no matter if I live in this country or not. If I were not earning enough, I still would have to pay at least 400USD to my country every year. You could say that it is illegal for me to be poor. 1. Do this laws contradict human rights? (Note: Many people went to the human rights court because of this, sometimes they agreed that it does, sometimes it does not. In the end it doesn't matters as my country doesn't care about decisions of the human rights court.) You have different possibilities to be expelled from that tax. The most famous one is being a woman. The second one is being disabled by at least 40%. Since males and females have the same rights and duties, I come up with this equation in this particular situation: male + 40% disabled = female As mentioned both genders have the same law applied to the according to human rights and constitution. Does this empathize that ALL woman are at least disabled by 40%? male + 40% disabled = female (who are all disabled). I know this sounds salty but somehow I cannot get rid of this equation. Anyway, we have a law for transsexuals that states that you don’t need to pay anymore if you switched gender and: A psychiatrist and a endocrinologist confirmed that you're not a male anymore and don't have a male body. If you need to switch gender it is considered an illness (living the wrong body) and healthcare pays for your therapy and operations. This makes becoming female free, staying male costs. Considering with the points above (some people cannot afford to pay): 2. Is it legitimate that the government puts pressure onto someone to switch gender and get rid of his genitals? | Article 8 is pretty clear. The fact that it is recommended to extend the draft to women indicates that there is a conflict needing resolution. A relevant case before the European Court of Human Rights ruled on this and found the law to violate articles 14 and 8 of the ECHR. They identify an exoneration from the tax under the Military-Service Exemption Tax Act sect. 4. Reading the judgment could be helpful (maybe you know the case). What I get from it is that there are a bunch of situation-specific details that could be applied (e.g. you have to first complain formally in-country before going to ECHR), and issues of disability level and the distinction between disability and illness. This gives a model for anyone to attempt to resist the tax, but only a change in the law will get rid of it. | What if the enemy gives aid & comfort to you instead? Is that treason? Is it covered by a different crime? This is not treason on the part of the recipient, although it could involve receipt of a bribe, or failure to register as a foreign agent, if it were in exchange for the performance or expected performance of some official act or a fee for service. Motives and the identity of the donor would matter. Also, "enemy" is a term of art in the law of war and the law of treason in the United States. Basically, it means someone who is a national of a country which the U.S. is in a declared war. Other than members of some some terrorist groups (including ISIS), and possibly citizens of North Korea, I do not believe that anyone else in the world counts as an "enemy" at this time for legal purposes. The U.S. Constitution in Article 1, Section 9, Clause 8 does specify that it is improper to receive "emoluments" from a foreign power. It says: [N]o Person holding any Office of Profit or Trust under them [i.e., the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. In other words, no federal government official may receive any gift or title from a foreign government or monarch. State Department protocol ratified by Congress mandates that when gift from a foreign government or monarch is received by a U.S. government official because international etiquette requires it, that it be turned over to the United States government to become federal government property as soon as it is reasonably practical to do so without offending the donor, since the purpose is to prevent a government official from personally benefitting from his or her office. I suspect that it is a crime to receive an emolement without turning it over to the U.S. if you are a federal official whether or not an "enemy" provided it. If I have time I will look up the chapter and verse. | As someone with ties to the "foreign" community in the United States, I see these "marriages of convenience" from time to time. In their most "legitimate" form, the couple will move to the same address and "technically" live together, but without consummating the marriage so that it can later be legally annulled. American immigration authorities counter this by asking each spouse about the other's underwear (literally!). Some "marriages of convenience" are legal, insofar as they technically conform to the marriage documents, e.g. regarding "co habitation," even while violating the spirit of the law. Others don't. Your best chance of attacking such "marriages" is not regarding the marriage itself (basically only the couple can decide what constitutes a valid marriage), but rather "compliance" with the marriage documents. That's something any law enforcement officer can understand. | Your bank is not discriminating against you. Your reasons for not having the required amount of funds pass thru your account has nothing to do with your marital status. In general, it's problematic to make a chain-of-cause-and-effect argument for discrimination. For example. Your argument is analogous to the following. My boss fired me for being late to work. But I was late to work because my child woke up late and missed the school bus; so I had to drive her to school. Therefore, my boss fired me for having children. That type of chain-of-cause-and-effect argument for discrimination just doesn't hold water. It is non sequitur and a requires a leap of logic. | "Explanations relating to the Charter of Fundamental Rights" on the website you linked to is very clear that the Charter of Fundamental Rights only means the EU institutions can't discriminate based on age, and that EU law is not allowed to be age discriminatory. It doesn't mean that individual acts of age discrimination are illegal: In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law. The practice of youth and senior discounts is older than the charter of fundamental rights. The charter will be interpreted in the light of continuity, it definitely wasn't the intention to outlaw price discrimination. There are specific laws that make price discrimination based on certain principles legal, e.g. UK equality act: Age discrimination - when discrimination is allowed in the provision of goods or services | I assume that the loan was legal, in light of rule changes pertaining to non-borrowing spouses. If so, there is really no recourse other than to repay the loan. This article explains the current options / restrictions in an understandable manner, but of course it is too late to do anything about it. If there was actually fraud or coercion in the loan, or if the elder party was mentally incompetent, there might be some legal recourse, but we don't have any evidence of fraud, coercion or incompetence here. | the first two highlighted parts seem to contradict each other. No, in this case they do not. The first highlighted portion refers to works or items produced "for or under the direction of the Company", whereas the second highlight refers to your creations that satisfy conditions (a) and (b). Where contradictions actually exist, the doctrine of contra proferentem entitles you (the non-draftsman of the contract) to adopt the portion or reasonable interpretation that favors your legal position. Also wondering how valid those statements actually are They are valid and become enforceable as soon as you sign the contract or your subsequent conduct reflects your acceptance thereof. it's a matter of privacy. So the question is what I can do or what the reality is of the situation The reality is that you are asked to sign a contract that is abusive and ridiculous. One vulnerability from describing your inventions (presumably in Appendix A) is that the employer gets "irrevocable, worldwide, etc" rights on them as soon as you "use or disclose any [items listed in Appendix A] when acting within the scope of [your] employment". This means that if instead of reinventing the wheel you share or apply any portion of your prior creations so as to enhance your productivity, you knowingly and irreversibly grant to the employer perpetual rights to those items. Legal disputes regarding APIs can become extremely intricate. And, since judges usually have no decent background on IT, even those few judges with integrity are unlikely to grasp the key subtleties that would lead to a correct ruling. "not useful with or related to any Company Interest" is very vague. The company could be interested in literally anything these days. Clauses which are too vague or excessively wide-encompassing are supposedly stricken as unconscionable, unenforceable, etc. However, I personally would foreclose upfront the risk of judicial hassle and decline the abusive contract. Legal issues aside, keep in mind that you are offering your expertise (in terms of supply & demand, you are on the supply side). This fact has a less derogatory connotation than "asking for a job". Accordingly, the relation between the parties should be more leveled. | The situation is that Executive Order 2020-33 is no more, and a new order, 2020-68 exists. The old orders to stay home are now copied under this order, but it may be necessary for her to re-issue (a subset of) the orders so that they are pursuant to #68 and not #33 (live by the technicality, die by the technicality). If she does not do that quickly, I expect there to be legal challenges. The law (30-403) doesn't say that orders issued pursuant to a declaration of a state of disaster expire when the authorizing declaration expires, but one can reasonably infer that that is what the legislature had in mind when this law was passed. But that is a matter for the courts to decide. Deference to the executive, which is the usual way that courts operate, would favor an interpretation where saying "All previous orders that rested on Executive Order 2020-33 now rest on this order" counts as re-issuing the same orders with a new number in the text. The law does not say that the circumstances authorizing an emergency order have to be completely different. Perhaps the legislature will revise the law in the future, but it is what it is right now. |
Do I need to present a GDPR banner to IP addresses outside of GDPR regions? The context of my question comes from this comment: The problem with solving GDPR compliance with country codes is, it is not in general sufficient to determine if a user is covered by the GDPR. The GDPR requires you to comply with certain practices for data pertaining to people who are citizens or residents of EU countries. it doesn't specify that you only have to comply if their computer or IP address reports an EU country code. I as a European permanent resident could be using a US computer terminal at an internet cafe at the moment to log in to an account. That doesn't automatically mean my data aren't protected by the GDPR. To give even more context, until I read this, I was under the impression that "GDPR banners" only need to be presented to users within the European Union/within regions with GDPR laws. Here is my reply to their comment: I'm really surprised to hear this. The GDPR FAQ (is this official?) says it applies to "anyone in EU territory." Their What is GDPR page says it applies to organizations that "target or collect data related to people in the EU." Cookiebot charges extra to conditionally show their banner based off of location (maybe that's only [useful] for CCPA). Do you have an official source for your statement? Is their interpretation correct? I want to know the technically correct answer and the "in practice" answer; bear with me on this example of the difference (if this is super confusing, please ignore it. My main question is the previous paragraph): Let's suppose I'm technically correct and I only have to show banners to people in GDPR regions. VPNs could hypothetically make that irrelevant because VPNs can change your IP address, allowing someone physically in the EU to have an IP address of someone outside the EU. If I need to present these VPN users with a banner, I have no choice but to show the banner to everyone: I'll have no way of knowing what region their IP address comes from. Let's suppose the company of the website is in California. | Your VPN scenario is why you have to show the banner to everyone. If you somehow knew beyond any doubt that someone was not in the EU, then you would not have to show a banner, but because you can't verify that, you should always show the banner. Doing so also protects against accidentally violating a similar law in another country; the GDPR is the best-known privacy law, but it is far from the only one. It's good practice to ask for people's permission before collecting their information anyway. | The law in every country where your service is available prevails. That means that if your servers are in Estonia, your file storage is in Lithuania, your company is in Switzerland, you are in France, you hold Thai citizenship, your users are in the USA and the signal transits through the U.K., Belgium, Germany, Canada and Poland then you are subject to the laws of each and every one of them. In addition, if China has reason to believe that the stored files contain matters relating to their citizens then they can take an interest. And so on and so forth ... A country has jurisdiction wherever it wants to have jurisdiction subject to the limits of and its ability to actually enforce its laws. What you are proposing is certainly illegal in many countries and you need to seek professional legal advice - not rely on strangers on the internet. | IANAL, and as @GeorgeBailey suggests, you should ask one. That said, some aspects of your question are directly addressable with what we know. Does US law states anything about this? Yes. Federally this falls under the Wiretap Act, 18 U.S.C. §2511. Workplace monitoring generally falls under either the "System Administrator Exception" or under Consent. In general, continuing past a banner constitutes consent. Does company policy enforcement with such a warning over ride the right to not be subject to surveillance? In general, yes. You don't need to use the companies network if you don't want to consent - and they don't need to hire you if you don't want to use their network. But it's their network, and their rules apply. There are some nuances, and courts have found that the wording of the notice has made a difference in some cases, but overall, if the systems are properly posted with banners, then the employer may capture communications. See the "Bannering and Consent" section of this article from cybertelecom.org, e.g.: Even if no clicking is required, a user who sees the banner before logging on to the network has received notice of the monitoring. By using the network in light of the notice, the user impliedly consents to monitoring pursuant to 18 U.S.C. § 2511(2)(c)-(d). Note that stored data is covered by different laws than communications. It's a nuance. Is it ethical to sniff all the data without giving any other warning than the logon banner? "Ethical" is a very different question than "Legal", and largely more subjective. Most employers require signed consent for monitoring as a condition of employment, and use banners thereafter. That is ethical by my definition, in that it meets or exceeds the requirements of the law, and does not mislead or use subterfuge. The tone of your question suggests you find it distasteful, and therefore probably it violates your personal code of ethics. | That a company (C) has a website that can be accessed from a given county does not mean that the company operates in that country. If C is located in country A, markets and advertises to country A, offers products designed to appeal in country A, has its site only in the primary language of country A, uses servers located in country A, and has all its assets and physical offices in country A, it is not operating in country X, even if a few people from X do business with C over its web site. Country X may have laws which claim to apply to C or its web site. It will find it hard to enforce those laws, particularly if owners and officers of X do not travel to X. It will find it hard to extradite anyone for violations of the laws of X unless those actions are also crimes under the laws of A. If X is a major, powerful country such as the US, the UK, or the EU it may be able to get A to enforce its court orders, or to use its influence over the banking system to impose penalties on C. If X is North Korea, or even Brazil, it is probably out of luck. Thus the management of C needs worry primarily about the laws of A, and to a lesser extent the laws of major countries that make some effort to enforce their laws outside their own borders, such as the GDPR, or certain US laws. It probably has little reason to worry about the laws of other countries. If A is itself a major country that can easily resist any pressue from X, C has even less reason to worry. If C does significant business in countries D and E, and particularly if it opens physical offices in D or keeps assets in E, it will have much more reason to worry about the laws of D and E. If it does advertising in the D & E markets, this also gives C more reason to be concerned with their laws. There is always some risk of X finding a way to enforce its laws, but the risk is small. | Maybe this changes something, maybe not. But at first glance, yes, avoiding US-based vendors does help comply with Schrems II. They need not be EU-based. Definition of an international data transfer The GDPR unfortunately does not define what an international transfer is, and just explains when they may be lawful: Art 44: Any transfer of personal data which are undergoing processing or are intended for processing after transfer to a third country […] shall take place only if, subject to the other provisions of this Regulation, the conditions laid down in this Chapter are complied with by the controller and processor, including for onward transfers of personal data from the third country […] to another third country […]. […] This has been interpreted, in particular by the official EU SCCs and by EDPB guidance, to imply two roles: the data exporter, and the data importer. Per those EDPB guidelines, a transfer occurs when three criteria are fulfilled together: The data exporter is subject to GDPR (e.g. as a controller via Art 3, or as a processor via an Art 28 data processing contract). The exporter discloses or makes available personal data to the importer. The importer is in a "third country" (for EU GDPR: anything outside the EU/EEA). Note that these importer/exporter aspects are independent from roles like "controller" or "processor". It also does not depend on where in the world the exporter is situated. Applying this to your scenario How does this apply to your scenario? I am assuming Alice Inc is subject to the GDPR (criterion #1). Now, Alice Inc can process personal data, and that's not an international transfer, even if Alice Inc is in the US (or any other third country). The general GDPR rules apply, such as the requirement to implement appropriate technical and organizational measures to ensure compliance and security of processing operations. If Alice Inc engages data processors to process personal data on Alice Inc's behalf, then this would fulfil criterion #2 (disclosure to a third party). For example, hosting providers generally act as data processors. Any other kind of data sharing (e.g. to other data processors) would also fall under this category. Tricky in an US context: while employees would be agents of Alice Inc and would not be separate recipients, contractors/freelancers would also be potential data importers. If those data importers are based in the EU/EEA, then criterion #3 is not fulfilled and there's no international transfer. For example, using an EU-based hosting providers would sidestep Chapter V of the GDPR completely. If those data importers are based outside of the EU/EEA, then criterion #3 is triggered and we have an international transfer. Lawfulness of international data transfers When there is an international transfer, it must be adequately protected. In order of decreasing priority: country has an EU adequacy decision appropriate safeguards for a group of companies: Binding Corporate Rules (BCRs) Standard Contractual Clauses (SCCs) Art 49 specific situations What SCCs and BCRs do is to translate enough of the GDPR from statutory law into a contract to ensure adequate protection. But to be effective, they must actually be enforceable, and the data importer must actually be able to comply with those rules. In Schrems II, the CJEU found that the US (at that time) did not offer an adequate level of data protection, and that SCCs are probably invalid as well since importers cannot comply with both the SCCs and with US surveillance laws. Before using SCCs, it is effectively necessary to perform a transfer impact assessment (TIA) analyzing, among other things, the legal context of the importer's country. It may be possible to defuse this, for example by using supplemental security measures like end-to-end that prevent unlawful use of the data even if it falls into the wrong hands. However, such measures also tend to prevent intended use, especially in a cloud context. In the DPC Ireland decision against Meta Ireland (PDF), the DPC finds: 7.202 In summary, therefore, I am satisfied (and I so find) that: (1) US law does not provide a level of protection that is essentially equivalent to that provided by EU law; (2) Neither the 2010 SCCs nor the 2021 SCCs can compensate for the inadequate protection provided by US law; and (3) Meta Ireland does not have in place any supplemental measures which would compensate for the inadequate protection provided by US law. 7.203 Accordingly, in making the Data Transfers, I find that, subject to the analysis contained at Section 8 below, Meta Ireland is infringing Article 46(1) GDPR. Implications of using non-US vendors As already mentioned, using EU-based data processors avoids the international transfer problem due to the way how international transfers are defined. Even if an international transfer occurs, that might not be a problem. Some countries have an EU adequacy decision, for example Canada, Israel, or South Korea. While there would nominally be an international data transfer that needs to be disclosed e.g. in a privacy notice, there is no additional bureaucracy required. In other countries, transfer tools like SCCs might work. A TIA might show that that the issues discussed in the Schrems II decision and the DPC decision wouldn't apply there. But isn't that a contradiction? You correctly point out a problem with the GDPR's approach to data transfers: This would however have little effect on the access to the data, in that if US law enforcement turned up at the offices of Alice Inc. they could be required to hand over the data and their access to the data will not be changed in any way by the location of the web hosting. Yes, this is arguably a loophole. However: If the US-based Alice Inc is a data processor in behalf of another controller, that controller would likely be violating the GDPR by transferring personal data to Alice. If Alice Inc is a data controller: while this might not be a violation of the Chapter V rules on international data transfers, such a scenario could be argued to be an Art 24 or Art 32 violation instead (requirement to ensure compliance and security). When Alice Inc transfers personal data to data importers, that is less visible to data subjects, and outside of their immediate control. However, when Alice Inc collects data on data subjects, that is more visible to data subjects, in particular through an Art 13 or Art 14 privacy notice. That notice must also contain the identity of the data controller, which would disclose that Alice is US-based, which may enable to data subjects to make more informed choices. This won't help Meta While moving to non-US data processors can be a sensible compliance approach for many companies, it is less useful for multinationals like Meta. In this context, Meta is an Irish data controller who engages platform and development services from an American company. Even if Meta Ireland tries to perform all GDPR-covered processing activities outside the US, it's actual corporate structure situates some processing activities such as administration tasks in the US and other third countries. If my above analysis is correct, it would have been easier for Meta to comply with GDPR if the US-based Meta company were the data controller. | The cookie consent requirement comes from the ePrivacy Directive, not from the GDPR. While the GDPR defines consent, cookie consent is required regardless of whether the cookie actually contains personal data. Instead, it says we can access information stored on an end users device under the following circumstances. Technical access to the information is used for the sole purpose of performing a transmission over a network, e.g. using a browser cache. Accessing the information is strictly necessary for providing a service explicitly requested by the user, e.g. session cookies or a consent-declined cookie. The user has given consent to the access, where consent is defined by the GDPR (freely given, informed, specific, …). The first scenario likely doesn't apply because your cookies aren't likely to be “technical storage or access” in the sense of ePrivacy, and because the tracking cookies wouldn't be used for the sole purpose of carrying out a transmission. The second scenario doesn't apply because tracking cookies are not strictly necessary to interact with the webshop, as evidenced by the possibility to opt out. The service explicitly requested by the user is the webshop or website, not the A/B testing. This only leaves consent as possible grounds for storing or accessing information on the user's device. It is already the storing or access that is covered by ePrivacy, not only later use as a persistent identifier. Your suggestion – to first set the cookie and then delete it if it shouldn't have been set – is more compliant than many set-ups I've seen, but is still technically non-compliant. It is also likely to fail in practice under non-ideal network conditions: if the request to see whether GDPR applies times out, or if the user closes the browser tab before the cookie will be deleted, the tracking cookie will remain without consent. I would instead suggest to consider the following points. It seems that by itself, Optimizely Web cannot be used in a compliant manner since it doesn't provide sufficient control over how cookies are managed. Thus, you should avoid loading such tracking scripts unless consent has been given, or unless this processing falls outside of EU/UK law. Currently, you defer loading of tracking scripts until you know if you have to ask for consent. This can be avoided if you always ask for consent :) This can also be avoided if you load the tracking scripts from a server that can independently determine whether the requests comes from the EU. For non-EU requests and for users with opt-in, the server can return the original tracking scripts. Otherwise, the server returns a dummy script. This server can be independent from your website's hosting. By combining the jurisdiction decision with the loading of the script, one roundtrip is saved and latency is reduced. Finally, no one is forcing you to use Shopify, and ePrivacy/GDPR is not required to accommodate their limitations. You do have different choices: use Shopify, at the cost of slow pages and limited A/B tests use a different A/B test provider that can be used without setting cookies use edge computing to do stuff in between of the browser and the original server use a different webshop platform ignore EU laws Well, one of them is clearly unethical. But you do have choices, and which choice you take is a business decision. Slow pageloads and consent banners are likely costing you conversions, but Shopify might be providing massive value that outweighs all that. | If you are purely a designer (and not contracted for the daily operation of the site), the answer is "no". GDPR Article 4 defines the "roles" responsible for complying with GDPR, and there are two: Controller and Processor. The Controller is the one who calls the shots. In particular: Decides what personal data to process. This is usually the owner of the web site. The Processor is the one that actually does the processing. This is usually some company providing some sort of data processing service (e.g. SaaS, PaaS, etc.). The relationship between the Processor and the Controller must be contractual. The contract is called a DPA (Data Protection Agreement or Data Processing Addendum). As a designer, you don't fit into any of these roles. If your contract with the client is silent on liability for GDPR compliance, then you have no liability. This goes for projects completed both before and after the May 25 deadline. Of course, if there are GDPR clauses in your contract, then you must fulfil them just as have to fulfil any other contractual obligation. But unlike the controller and the processor, there are no automatic legal liability for a designer or programmer. | GDPR is not a blanket ban on the handling of personal data. It is a set of guidelines when and how data may be processed and stored. Documenting the compliance with a deletion request is one of many purposes for which some data may be retained after a deletion request. Others would be past contractual obligations, legal documentation requirements, and even a balance of 'legitimate interests' of the processors and the data subjects. The processor might be able to argue that fraud/abuse prevention is such a legitimate interest. What if I want to create a service that does let users enter their friends' email addresses, and send those friends an email invitation to the service? Get a specialist lawyer on staff who can check your exact business processes. A web site like this cannot possibly give you a full explanation of the pitfalls. |
Can a decision to prosecute be judicially appealed? Meet Charlotte. Charlotte is suspected of a crime, in respect of which a decision was made that it was sufficiently in the public interest so as to charge her. Charlotte meanwhile disagrees with this assessment and has argumrnts to the contrary. Is there any mechanism whereby she can bring about an opportunity to plead these arguments to a court so as to challenge the executive decision to prosecute her prior to her trial? | See James v Director of Public Prosecutions, [2015] EWHC 3296 at paragraphs 26-28. It summarizes that there is no path to independently challenge the exercise of prosecutorial discretion to charge. Such a challenge would have to arise in the context of the actual trial via an allegation of an abuse of process, the remedy for which would be a stay of the charge. See also Barons Pub Company Ltd, R (on the application of) v Staines Magistrates' Court, [2013] EWHC 898 at paragraph 36: In our view the Magistrates' Courts have no power of review of a prosecutorial decision other than through an abuse of process application. As has been made clear in a number of decisions, including R v A(RJ) [2012] EWCA Crim 434, [2012] 2 Cr App R 80, and more recently in Moss & Son Ltd v CPS [2012] EWHC 3658 (Admin), if there is a challenge to the decision to prosecute, it must always be made in the criminal proceedings, unless there is some reason why it cannot be so made. The only way in which it can be made in Magistrates' Court proceedings is by an abuse of process application. That in itself is an exceptional remedy. The abuse-of-process standard is very high; a mere disagreement as to the public interest in bringing a charge is nowhere near the standard to show an abuse of process. I can't find a succinct explanation of the rationale for this in a UK decision, but here is the rationale from Canada's Supreme Court (which takes essentially the same position as the UK). See R. v. Nixon, 2011 SCC 34, quoting Krieger v. Law Society of Alberta, 2002 SCC 65 The court’s acknowledgment of the Attorney General’s independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our Constitution. Subject to the abuse of process doctrine, supervising one litigant’s decision-making process — rather than the conduct of litigants before the court — is beyond the legitimate reach of the court. . . . The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawn constitutional lines are necessary in areas subject to such grave potential conflict. | As a comment by @DavidSchwartz notes, this is not wrong. Questions of law but not fact are allowed. It is worth noting that the line drawn is arbitrary. In Colorado, where I practice, jurors issue written questions (pre-reviewed by the judge and counsel for all parties before being presented) to witnesses at the close of the testimony of each witness called by a party to testify. This is very helpful to counsel, as it provides indirect evidence of whether the jury understands what they are being told, and often juries will directly ask questions that for tactical reasons, both parties have refrained from asking that go to the heart of the matter. It also frequently clarifies misunderstandings that trained legal professionals assumed were not made about terminology. This is more problematic in criminal trials, where jury questions could provide evidence pushing a case over the threshold of proof needed to prove beyond a reasonable doubt that the prosecution failed to provide, than in civil cases with a preponderance of the evidence standard. Also, as a matter of reality, when jurors ask questions, counsel often loathe to object even when they have valid grounds to do so, for fear of offending the decision-maker, unless it is really critical to keep certain information away from the jury. | Whether or not one holds the opinion that the adult morally should be prosecuted, there are only two legal questions – can the adult be prosecuted, and must the adult be prosecuted? The easiest question to answer is the "must" one – prosecution by the government is always discretionary. It is settled law that the government can decline to prosecute a crime. The decision to prosecute is entirely political. It seems likely that the government can prosecute, if they conclude that the action was not legally justified under §418 of the Crimes Act 1900, as defense of another against a criminal assault. The government won't prosecute if they conclude that such a defense is likely to succeed. | Your question slightly misrepresents what the article says: Yes, the judge denied the motion which led to the collapse of the case, he did not make a ruling on the substance of the case. The distinction is significant to my mind as the judge was using non-evidentiary knowledge (i.e. what he read in the paper) to make a decision on process; in this case a process that would have put a lot of people to a lot of inconvenience. It would not be proper for the judge to have used such knowledge to inform a judgement. It is also not clear from the article if the academic paper in question was actually introduced by the defendant as evidence. If that was the case then it is only right and proper for the judge to consider it. As to why a judge is allowed to read the news and a jury is not, I can offer several ideas: A judge must document their reasoning process in a judgement which is subject to review - if they were to make a decision based on matters not supported by the evidence then an appeals court could correct it. Alternatively, juries are specifically prohibited from revealing their reasoning process to anyone. Judges do their jobs for years, perhaps a whole career - to prohibit them from consuming media is a) unworkable and b) a serious impediment on their lifestyle. Juries are empaneled for weeks or months - such sacrifices are more reasonable. Judges are (supposedly) trained and impartial professionals who are more readily able to make the distinction between evidence and news. Newsworthy cases are relatively rare | In the United States, prohibition against double jeopardy is a constitutional protection. As long as one was actually at jeopardy for an offence by a particular sovereign, that sovereign may not subsequently prosecute the accused for the same wrong. In other jurisdictions, such as the U.K., it has a less strict form, even though generally, special pleas of autrefois acquit would be available. It is also not the case that after an apparent "confession" in public that there is "no doubt" about a person's guilt. No evidence is "certain" in law without being tested in court. Also, you propose: you were tried for murder and acquitted - then you go out and publicly admit that they were wrong, you did actually murder that person This does not put the acquittal into question. The prosecution failed to prove the case beyond a reasonable doubt. This means at law that one is deemed to be not guilty. Your scenario does not show that the trier of fact was "wrong" about the prosecution failing to prove its case beyond a reasonable doubt. This is not an avenue by which the prosecution can challenge an acquittal. If a properly instructed trier of fact finds that that the prosecution did not prove its case beyond a reasonable doubt, this conclusion is unassailable. You ask "where is the justice?" The justice of a system is assessed by its application across the totality of cases. Given that a system of prosecuting and judging that is run through humans will inevitably produce errors, the law has developed to promote a measure of "justice" across the entirety of the cases that are disposed of by the court rather than to futilely attempt to ensure the "correct" result in every particular case. The rule against double jeopardy has arisen out of this systemic concern for justice. It does not purport to secure the "correct" result in every case. | No Once a state has accused a person and tried that person for a particular act or set of acts, the state can't later hold a different trial for the same act or acts. That is the Double Jeopardy rule (or the basics of it at least). Some limited exceptions: If a person is convicted and appeals, and the conviction is overturned, the appellate court may order a new trial. *If there is a mistrial, such as a hung jury (jury cannot agree) then there can be a new trial. If an act is both a state and a Federal crime (in the US) then both can have separate trials, and possibly two convictions. If the accused bribes the judge or jury, that trial will not count, and there may be a new trial. If an act is a crime in two different countries, each can have its own trial (but often they don't). If it is later discovered that the accused committed a quite different act than the one s/he was tried for, a new trial for that act may be possible. But otherwise, whether the accused is acquitted or convicted, only one trial for a given alleged crime. The state cannot later change its mind on what to charge the accused with for the act. | Carl may not do this, as he would be prohibited from making this argument at trial. At trial, evidence must be relevant, meaning that it makes a fact of consequence more or less likely to be true. Because the trial is meant to determine whether Carl is or is not guilty, his promises of future philanthropy have no bearing on the matter. And even if they somehow did, Carl still would not be able to tell the jury about them because they would be blocked under Rule 403, which excludes evidence because its probative value is substantially outweighed by its risk of biasing or confusing the jury. If Carl attempts to make these statements anyway, he risks a mistrial, which means he has to start over with with a new jury. In some jurisdictions, Carl may, however, be permitted to make this argument during the sentencing phase, where the court can properly consider the societal effects of whatever punishment it imposes. At this point, though, it's obviously a little late for Carl, as it presumes he has been convicted. | The Main Answer: The Judge Can't Appeal; But Other People Can Since the Judge now has an attorney, can this Judge appeal to the Supreme Court (or appeal again starting from a different court jurisdiction) to potentially allow him to continue his decision to review if the Michael Flynn case should be dismissed? Not exactly. It is potentially subject to appeal, but not by the judge. But the question contains an understandable and natural false premise that confuses the issue. The attorney appointed by the Court to present the position abandoned by the Justice Department is not a lawyer for the judge (who has absolute immunity from liability). Instead, the attorney is someone appointed to provide additional representation to "the People" on the theory that the Justice Department in unable to fully represent the interests of "the People" due to an alleged conflict of interest. The attorney appointed by the judge to present a position that the Justice Department abandoned, might have standing to do so, but the judge himself or herself, while listed as the Respondent in the case, is only a nominal party and not a true real party in interest. Also en banc review of a panel decision of the U.S. Court of Appeals can be raised sua sponte by any judge in the Circuit, without prompting from any part for further review (which is what happened in this case). The Archaic Federal Writ of Mandamus Practice Explained There is a general rule that says that only final decisions of trial courts can be appealed to an appellate court.<1> Thus, usually, a criminal defendant can only appeal from a criminal case after the criminal defendant has been convicted of a crime and sentenced for that crime. But, this general rule has exceptions. A request for a writ of mandamus is one way to get around this general rule. A writ is a court order directed at a government official by a court having jurisdiction over the official, usually, but not always, in a matter in which the government official is not alleged to have done anything making the government official eligible for punishment personally. For example, a writ of execution, is a court order directing the sheriff or some other government official, to take action to enforce a court order awarding someone a money judgment that the prevailing part seeks to have the sheriff involuntarily seize. A request for writ of mandamus (i.e. for an order directing a government official subordinate to the court to take a non-discretionary action in a court case) is structured in the old fashioned approach used in federal court as a lawsuit against a judge brought in a court with supervising authority over the judge. But, in substance, this is a legal fiction and formality used (in this context, writs of mandamus are used in more than one way) to provide review of trial court decisions prior to the entry of a final decision on the merits in a case (something also called an "interlocutory appeal"). This process was established in the All Writs Act of 1789 (now codified at 28 U.S.C. § 1651) that applied to the federal courts the process in place immediately prior to the adoption of the United States Constitution in 1789 in the courts of the American Colonies. The procedure used in the pre-constitution courts of the American colonies was borrowed from English common law procedural practices then in place. The English practice was in turn originally established during or not long before the reign of King Edward II (reigned 1307 to 1327 CE). Those procedures have then evolved over time. This procedure was formally established in the U.S. in the federal courts by case law interpreting the All Writs Act (the All Writs Act itself is only a sentence or two long). Put another way, the All Writs Act gave the federal courts the authority to order other government officials (including but not limited to judges) to do things to carry out federal court orders, in the same broad circumstances where English common law courts has the power to do so, and using the same procedures. Originally, a writ of mandamus really was a lawsuit against a judge, and there are contexts where a writ of mandamus is sought against a government official other than a judge that continue to be a lawsuit against a government official. But, now that is just a formality and not a real lawsuit in this context, and that has been the case in cases involving writs of mandamus filed against judges for hundreds of years. <1> A direct appeal of right from a final criminal conviction is a relatively new innovation in the federal courts in the U.S.. The right to bring a direct appeal of right of a criminal conviction secured in federal court did not exist until 1890. And, the right to bring a direct appeal of right of a criminal conviction is not constitutionally guaranteed by the U.S. Constitution or the Bill of Rights, it exists solely by virtue of a federal statute. Prior to 1890, most judicial review of federal criminal convictions was conducted via writs of habeas corpus (which has much narrower grounds upon which relief can be granted) or via Presidential pardons. The Modern Approach Used In Many Jurisdictions Contrasted The modern approach designed to avoid the confusion associated with nominally suing the judge, is to create a court rule replacing the old fashioned legal fiction of writ of mandamus practice, in which someone files an interlocutory appeal captioned (in a criminal case) as People v. Defendant, or as Defendant v. People (depending upon who files first) which is handled essentially like an ordinary appeal but with shorter deadlines and the requirement that grounds for considering the appeal at all prior to a final order in the case be established. For example, in Colorado, where I practice, the equivalent procedure to a writ of mandamus with the judge named as Respondent in a federal court, is called a "Colorado Appellate Rule 21 motion". Further Appellate Options Appeals from interlocutory writ of mandamus rulings made by a panel of a U.S. Court of Appeals are a fairly esoteric corner of federal appellate procedure, and I am not intimately familiar with the ins and outs of it, but there is a process by which someone with standing could seek further appellate review of the U.S. Court of Appeals panel's ruling. The interlocutory appeal in this case was handled by a three judge panel of one of the United States Courts of Appeal. There are two main ways that a ruling of a panel of one of the United States Courts of Appeal may be further appealed. One is to seek en banc review of the decision by all of the judges of the circuit of the U.S. Court of Appeals whose panel heard the case. The other is to appeal either from an en banc decision or directly from the panel decision, to the U.S. Supreme Court. In both circumstances, further appellate review of discretionary, the en banc panel or the U.S. Supreme Court, as the case may be, first decides the preliminary question of whether to consider the further appeal at all, and then, if that is answered in the affirmative, considers the merits of the issue or the issues raised in a further appeal. In a case of national interest involving separation of powers in which the panel issued a divided ruling, it isn't unthinkable that there would be further discretionary review of the ruling if it was sought by someone with standing to do so. The most controversial aspect of the panel ruling in this case, highlighted by the dissenting opinion, is that the Justice Department and criminal defense attorney filed the writ of mandamus before the trial court judge had a chance to consider and rule upon the motions filed in the trial court. Normally, a writ of mandamus is not considered "ripe" to file until a judge actually rules on a motion with a court order which the person seeking the writ alleges was mistaken, rather than before the judge gets to consider whether or not to grant that motion in the first instance as was done in this case. To paraphrase the dissenting opinion, the dissenting judge felt that the appellate court panel jumped the gun in an unprecedented and irregular manner that deprived it of jurisdiction to decide the issue because it was not yet ripe for decision. Other Ways This Could Have Been Litigated As an aside, it is also worth observing that there were multiple procedural options available in this case to prevent his client from being sentenced and to force the case to be dismissed. The writ of mandamus was brought by the Justice Department seeking to enforce its own institutional privileges. But, the more conventional approach in a case with a similar fact pattern in federal court, would be for the criminal defense attorney to file a separate lawsuit against the warden of the jail where his client is being held (who is also a nominal defendant under a different legal fiction, and who also has absolute immunity, but would be defended in the lawsuit by the Justice Department absent an alleged conflict of interest like the one present in this case) seeking a writ of habeas corpus ordering the warden to release his client, possibly before a different judge, and subject to direct appeal once resolved, rather than an interlocutory appeal via a writ of mandamus. But, it isn't often that the Justice Department seeks to withdraw its prosecution against a criminal defendant who has already pleaded guilty in a proceeding in which the factual basis of the plea has already been established on the record in open court and the case is ripe for sentencing to a serious felony sentence. Update As Of August 3, 2020 This case was selected for en banc review by the entire DC Circuit based upon the petition of the dissenting judge in the three judge panel that decided the case. The Order states: ORDER Upon consideration of the petition for rehearing en banc, the responses thereto, and the vote in favor of rehearing en banc by a majority of the judges eligible to participate, it is ORDERED that this case be reheard by the court sitting en banc. It is FURTHER ORDERED that the court’s order filed June 24, 2020, be vacated. It is FURTHER ORDERED that oral argument before the en banc court be heard at 9:30 a.m. on Tuesday, August 11, 2020. The parties should be prepared to address whether there are “no other adequate means to attain the relief” desired. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004). A separate order will issue regarding the allocation of oral argument time. Per Curiam |
How to determine a fair sentence? I am reading a book called Noise, I am still at the beginning, but already I have a question. The book in the first chapter tells the story of how the US Sentencing Commission tried to set some guidelines for the criminal sentences. By their own admission they did not have a method to determine a fair sentence and their solution was to take an average of past sentences. I thought that such solution was too simplistic and I wondered whether there could be a better way. One solution could be to study the outcome of past convictions. Someone could take some past cases where the convict has served the entire sentence at least x years ago, group these cases by type of crime, circumstances and the length of the sentence (maybe discretised) count the number of convictions in each group and calculate the percentage of repeated offenders. I guess that, barring some noise, it could be possible to fit a curve to these data that would see the number of repeated offenders inversely proportional to the length of the sentence. In many case a change in the slope of the curve could indicate point that would optimise the trade off between the length of the sentence and the number of repeated offenders. Did anybody ever make a similar study to determine what could be a fair sentence? I am not a law expert and I am sure that there could be other methods that are a lot more sophisticated, but this seems a step ahead compared to the solution adopted by the Sentencing Commission. Am I right or is there a flaw in this idea? | You are assuming that avoiding recidivism is the primary goal of a custodial sentence If that were the case, then the death penalty for every crime would be the most effective: not only do dead people not commit crime, they don’t even think about committing crime. Now, if you’re rebelling against that idea of the death penalty for shoplifting, that just demonstrates that criminal punishment has other goals than merely avoiding recidivism. Section 3A of the new-south-wales Crimes (Sentencing Procedure) Act 1999 codifies the common law: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and to the community. Custodial sentences are good at (a), (e), (f), and possibly (g). In the short term they are good for (c) but not so good in the long term and they are terrible at (b) and (d). Of course, if you’re in a jurisdiction where judges are subject to political pressure, either directly by being elected, or indirectly, by not being independent, then the primary purpose of sentencing is to ensure the judge keeps their job or otherwise advances their career. This can be considered the central dilemma of democratic politics: you cant do “good” unless you have power but getting or keeping power might require you to do “bad’ things. As for whether there are studies statistically linking any of these objectives to sentence length, there are literally thousands. | If someone was charged with 15 counts of a crime but was only indicted on 2 counts, can the prosecutor introduce evidence at sentencing of charges that the person was not indicted on? In federal court, yes. This has been the case since Williams v. New York, 337 U.S. 241 (1949) which held that evidence such as counts and conduct upon which the defendant was not charged or indicted may still be considered in a sentencing hearing. Since U.S. v. Watts, 519 U.S. 148 (1997), the prosecutor can even introduce evidence at sentencing of charges upon which the person was acquitted by a jury. See generally here. This remains good law although it is controversial both in academic writing and in political discussions and among many sitting federal judges. Neither the Federal Rules of Evidence nor constitutional provisions related to evidentiary matters (e.g., the Confrontation Clause of the Sixth Amendment) apply at sentencing. Therefore, the court may consider hearsay and other types of information that would not be admissible during a trial. However, the [U.S. Sentencing] Commission has stated that information considered by a court at sentencing must have “sufficient indicia of reliability to support its probable accuracy.” Under Federal Rule of Criminal Procedure 32, the court “must — for any disputed portion of the presentence report or other controverted matter — rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.” In resolving factual disputes, the court ordinarily applies the preponderance of the evidence standard. From here. The quote above cites the following authority: FED. R. EVID. 1101(d)(3). Williams v. New York, 337 U.S. 241 (1949). 18 U.S.C. § 3661; see also Pepper v. United States, 562 U.S. 476, 480 (2011) (“This Court has long recognized that sentencing judges ‘exercise a wide discretion’ in the types of evidence they may consider when imposing sentence and that ‘[h]ighly relevant — if not essential — to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics.’ Williams v. New York, 337 U.S. 241, 246– 247 (1949). Congress codified this principle at 18 U.S.C. § 3661, which provides that ‘[n]o limitation shall be placed on the information’ a sentencing court may consider ‘concerning the [defendant's] background, character, and conduct,’ and at § 3553(a), which sets forth certain factors that sentencing courts must consider, including ‘the history and characteristics of the defendant,’ § 3553(a)(1).”). USSG §6A1.3(a). FED. R. CRIM. P. 32(i)(3)(B). USSG §6A1.3, comment.; see also McMillan v. Pennsylvania, 477 U.S. 79, 91-92 (1986) (holding that due process does not require sentencing factors to be proved by more than a preponderance of the evidence). Federal Rule of Evidence 1101 states (emphasis added): Rule 1101. Applicability of the Rules (a) To Courts and Judges. These rules apply to proceedings before: · United States district courts; · United States bankruptcy and magistrate judges; · United States courts of appeals; · the United States Court of Federal Claims; and · the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands. (b) To Cases and Proceedings. These rules apply in: · civil cases and proceedings, including bankruptcy, admiralty, and maritime cases; · criminal cases and proceedings; and · contempt proceedings, except those in which the court may act summarily. (c) Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding. (d) Exceptions. These rules — except for those on privilege — do not apply to the following: (1) the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility; (2) grand-jury proceedings; and (3) miscellaneous proceedings such as: · extradition or rendition; · issuing an arrest warrant, criminal summons, or search warrant; · a preliminary examination in a criminal case; · sentencing; · granting or revoking probation or supervised release; and · considering whether to release on bail or otherwise. (e) Other Statutes and Rules. A federal statute or a rule prescribed by the Supreme Court may provide for admitting or excluding evidence independently from these rules. Given the immense personal importance of a sentencing hearing which can exercise discretion over a range of many decades of possible prison time, and which is frequently the only meaningful opportunity for a person who is easily proven guilty to distinguish himself or herself from other defendants, it is really very stunning and counterintuitive that this is the case. And if so isn't that denying the defendant his or her due process because that person was not indicted on those charges? Under current U.S. Constitutional law, the maximum sentence that can be imposed must be based upon convictions by a jury or judge based upon charges upon which indictments were brought, which were proved beyond a reasonable doubt based upon admissible evidence. The leading case in support of this proposition is Apprendi v. New Jersey, 530 U.S. 466 (2000). But, at sentencing, the judge's exercise of discretion up to the maximum sentence established at trial may be made based upon a preponderance of the evidence and that evidence is not subject to the same procedural safeguards. | It seems generally uncontroversial that in examining a witness at trial, a lawyer may not ask questions implying that the witness has engaged in some wrongdoing, unless the lawyer has some basis for asking those questions. This is not true. A lawyer is allowed to guess and ask such a question, although if it assumes a fact not in evidence it could be objected to for lack of foundation. For example, the opposing counsel could object if the lawyer asked, "After you drank twelve beers at BigTown Sports Bar, isn't it true that you got into a car and drove away?", because there would be no evidence in the record at that point that he drank twelve beers at BigTown Sports Bar. For instance, in the absence of any evidence indicating that alcohol was involved, I would imagine that a plaintiff's lawyer in an accident case could not cross-examine a defendant with leading questions suggesting that he had been drunk at the time of the crash. Sure he could. He could ask, "Isn't it true that you were drunk at the time of the crash?" There is nothing objectionable about that question. If the answer was "no", however, and the lawyer had nothing else to back up that suggestion, the question might not help the case, but the question is proper. Sometimes a lawyer just has a hunch and goes with it, and sometimes the hunch is right. Is this rule codified in a rule of evidence or is it just rooted in the courts' ideas of decorum and propriety? I can see how it might implicate the Rules of Professional Conduct, but that wouldn't seem to provide a remedy to a party who was prejudiced by such behavior. I'm more interested here with civil cases than criminal, where a defendant's Sixth Amendment rights might be complicate the question. It isn't codified because such a rule does not exist. There are some special rules that apply to prosecutors, who are ethically required to bring criminal cases only when they believe that the cases are supported by probable cause. But, that rule applies at the case level and not at the question by question level. Lawyers are also prohibited, especially in criminal cases, from making statements asserting personal knowledge of the credibility of a defendant or witness. This is because this transforms the lawyer from an advocate to a credibility witness. But, the lawyer can ask a judge or jury to find that someone is not credible in closing argument based upon X, Y and Z evidence presented at trial. | The reality, and to some extent the conventional wisdom, is that jury trial as less accurate (and jury trials are without a doubt, in modern times, less efficient). But there is also a widespread belief that jury trials are less biased than bench trials. Judges are probably more accurate but are perceived as being biased against most kind of criminal defendants, so that the average result is worse of innocent defendants, even though jury trials probably cause more guilty defendants to go free than they would otherwise. The empirical evidence is mixed and is system and context specific (judges might be biased in favor of law enforcement defendants, for example). But the revealed preferences of criminal defendants show an overwhelming belief that the average results of jury trials for them are better than the average results of bench trials for them. The fear of judicial bias also illuminates the circumstances under which the British retain civil jury trials (e.g. in eminent domain valuation proceedings, where judges are seen as having something of a conflict of interest since their department's budget competes for scarce funds with those funds used to pay eminent domain claims). Sometimes being fair is more important than being right, and that is what the jury system strives to do. The belief that judges have some inherent biases overlaps with the notion that the jury may bring a broad range of insight into interpreting the factual presentation and the credibility of witnesses based upon their wider range of personal experiences. The removal of the class and occupational biases of judges generally from the system also does have a democratic aspect to it. It gives granular active control of a key form of state use of power involuntarily over someone to the democratic populace making the system more democratic. Juries also turn a decision made by a lone judge (because unlike civil law systems, common law judges with only rare exceptions conduct bench trials individually, rather than in panels of judges), guarding against the idiosyncrasies of any one individual decision maker. Also, as a practical matter, in the U.S. and pre-modern England, there was a scarcity of legally trained judges so adopting a system calling for far more judges per capita, as civil law legal systems of Continental Europe did, would have been expensive, and juries made collective decision making possible, leveraging scarce judicial resources. Another important facet of this is jury nullification which gives a jury the practical, although often not formally acknowledged, power to disregard the law when its application seems unfair. The revolutionary Americans figures that their fellow citizens would be less likely to convict them of wrongs against an unjust state than British appointed judges had been to do so, and in practice, even in modern times, juries have often been lenient with politically motivated criminal defendants charged by the state with crimes. It also reflects a political calculus on the part of the judiciary collectively. In a bench trial, the public will seek to hold the judge responsible for decisions with which it disagrees and to blame the judiciary collectively for bad decisions. A jury trial deflects blame from the judge to an effectively anonymous and ephemeral group of ordinary citizens so that decisions perceived as bad don't taint the long term reputation of the judge with the public. More generally, bad decisions in high profile court cases can undermined the legitimacy of the government as a whole if made by a judge, but not nearly so much, if made by a jury. Finally, there are decisions that mosts often come up in tort cases (such as personal injury cases, defamation cases, and money claims for violations of civil rights) where a big component of any damage award involves compensatory non-economic damages (e.g. for pain and suffering and damage to dignity) and non-compensatory punitive damages claims, where a jury serves what amounts to an opinion survey-like role by translating intangible harms into fixed sums of money in a way that reflects community opinion, where there is no easy way to define that sum of money in a flexible way to cover myriad situations that a judge can follow in a principled way. | How would this scenario play out in the legal system? Prosecutor brings charges against EQM or tries to use that conviction to enhance a subsequent conviction. Defendant EQM raises the pardon as a defense. Prosecutor responds that the pardon was intended to cover EQM Prime, not EQM. The Court holds an evidentiary hearing to determine whether the President intended to pardon EQM Prime or EQM. The Court decides who the President intended to pardon based upon the evidence presented at the hearing, and rules accordingly. The burdens of proof are tricky. Usually affirmative defenses have a preponderance of the evidence burden on the proponent of the defense, but sometimes the defense must be disproved beyond a reasonable doubt. I don't know that part of the law well enough to know without lots of research and the outcome might not be uniform across the U.S. To my knowledge, there has never been a case that got this far in which the true identity of the beneficiary of the pardon was ambiguous. It is possible, but a vanishingly rare possibility. Almost always, someone gets a pardon by asking for it and determining whether EQM or EQM Prime asked resolves it, or a reference to the crime resolves it. If the Court concludes that both asked the same President to be pardoned for the same crime (e.g. if the same crime was committed jointly by father and by son who is named after father and doesn't use Jr. day to day) and the Court concludes that the President was probably confused and didn't realize that there were two requests from different people and not one, the judge would probably give them the benefit of the doubt and treat both as pardoned as that would still reflect the President's intent. | One wouldn't be able to make a claim about a driving record without it being testimony. Testimony will be challenged during cross examination. The prosecutor won't be able to bring up prior bad acts (such as previous speeding tickets) but will most certainly be allowed to rebut any claim of no prior bad acts made by a defendant. When the defendant claims a spotless driving record the defendant is introducing character or a character trait into the trial. Once introduced by the defendant the prosecutor will be allowed to challenge the credibility of that statement and, therefore, the credibility of the witness. Imagine the following interaction: Defendant: I have a spotless driving record. Prosecutor: Are you saying you've never been issued a traffic ticket? Defendant: Um, Uh, well... When a defendant goes to court they are facing a specific charge. The prosecutor will present evidence that supports that charge and it is up to the defendant and his attorneys to sow reasonable doubt within the jury, or at least one juror. By presenting character, the defendant may appear to be saying either, "Hey, it was my first time let me off," or, "I've never done it before so I couldn't have done it this time." Either way, it probably won't create reasonable doubt in the juror's mind about the specific charge they're weighing and it has the potential to open a can of worms that would be unfavorable to the defendant. | The statutory requirement for sentencing guidelines are at section 120 Coroners and Justice Act 2009, which includes: (2) A sentencing guideline may be general in nature or limited to a particular offence, particular category of offence or particular category of offender. Therefore, not every offence etc requires - or has - its own specific sentencing guideline. (Presumably as there are far too many offences to easily cover, so limited resources might need to be focused on the more common ones.) Note that at the foot of the Sentencing Council's explantory materials is this link: Where there is no guideline for an offence, refer to the General guideline. Which states it is for: sentencing offences for which there is no offence specific sentencing guideline... So this General guideline is the one to be applied when dealing with a s.53 RIPA offence. (I've not reproduced it here to save space) | Not generally. While double jeopardy considerations does not apply in Canada until the final verdict (i.e. all appeal processes have been exhausted by decision or failure to appeal within the time limit), the right to a jury trial for serious offences, both under the Constitution Act, 1982 (or the Charter, its bill of rights Part) and the Criminal Code (section 471, which not only makes the jury trial a right, but also the compulsory mode of trial unless both prosecutor and the accused consent), exist. Under common law principles, the jury's verdict, in the fact-finding role exclusive to the jury, is almost sacrosanct. Even if in Canada an appeal court can set aside a jury's verdict of acquittal or conviction, they may only do so if there is a reviewable legal error (for appeals from the Crown and the accused), or if the verdict of conviction is plainly unreasonable and cannot be supported by evidence (or otherwise may constitute a miscarriage of justice). In the first case, the reasoning is that the jury's verdict was defective due to e.g. insufficient or wrongful instructions, seeing evidences that should not have been admitted or failure to see evidences that should have been admitted. In the second case, the appeal court acts as a safeguard, much like in the U.S., for the accused to prevent wrongful convictions however it may occur. Even then, the appeal court cannot in essence conduct a new trial from the appeal records and substitute its own factual findings for those made by a jury, unless it finds that no properly instructed jury can reasonably convict the accused based on the evidences presented (R. v. W.H.). Now going back to what the trial judge can do after a jury's verdict. The proper course of action in case where the Crown's case cannot support a conviction is for the accused to seek a directed verdict before presenting any evidence. If the judge grants the motion, the judge (not the jury) enters a verdict of acquittal, which can be appealed for errors of law. Otherwise, the trial judge has no capacity to usurp the fact finding role of the jury. The judge can, however, in exceptional circumstances, declare a mistrial or stay of the proceedings (i.e. the proceeding is concluded without a verdict, due to e.g. abuse of process by the state or other considerations to preserve the integrity of the justice system) following the jury's verdict. All most all cases on this issue followed a verdict of conviction. In one unusual case (R. v. Burke), a verdict of "acquittal" was involved. The verdict is in quotes because in this case, the court recorded a verdict of acquittal apparently contrary to the jury's intention, as the jury foreman had coughed before pronouncing "guilty as charged" and the judge (along with the court reporter, the prosecutor and the defence lawyer) misheard "not guilty as charged". After seeing the accused in the parking lot, some jury members were confused and returned to the court and reported the error. However, not all jury members could be immediately contacted and the jury had only reconvened in the court with the accused a couple days after the original verdict, and after some newspapers had reported on the situation. The trial judge decided to enter the intended verdict of "guilty". The accused appealed and the Supreme Court decided in this particular case that: the trial judge can nonetheless exercise a limited jurisdiction after the jury's discharge; the judge could enter the intended verdict if it did not give rise to a reasonable apprehension of bias; in this case, due to the media reports and relatively long delay between the original verdict and the reconvening of the jury, which may have improperly influenced the jury, a mistrial should have been the appropriate remedy instead of entering the intended verdict. On the appropriateness of a mistrial, the Supreme Court said In declaring a mistrial, the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent a miscarriage of justice. This determination will necessarily involve an examination of the surrounding circumstances. Injustice to the accused is of particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in a criminal case. This factor should be balanced against other relevant factors, such as the seriousness of the offence, protection of the public and bringing the guilty to justice. It may be fitting to allow the announced verdict to stand where the period the accused has been at liberty and under the mistaken impression that he or she had been acquitted has been lengthy, and where the charge is not so egregious as to bring the administration of justice into disrepute. As has already been stated, the trial judge is in the best position to assess the circumstances of each individual case and select the most appropriate remedy. This case does not directly apply to a case where the jury intended an acquittal, but the considerations may still be applied in extremely limited circumstances. While no one but the jury is privy to their deliberation process and no judge can overturn a jury's acquittal because they think the jury's verdict is unreasonable, it could be imagined that, for example, if a jury reports an acquittal and a member of jury before being discharged makes a claim of jury intimidation or the Crown presents clear evidence of jury manipulation, the trial judge might still have the authority to declare a mistrial. But this has not been clarified in jurisprudence. |
Leave to remain for criminal victim/witness Meet Alice. Alice was assaulted by a coworker who punched her in the face, and was promptly arrested and charged. However, Alice was just nearing the end of her student visa. Alice was thus told that she could apply for a special visa without paying anything that would be for the purpose of allowing her to stay and presumably to testify at the trial. What is this special type of feeless visa called? | Alice would not be entitled to a visa at the expiry of her student visa as she falls outside of the rules to obtain one (unless she makes a successful application for an extension or for another category). Instead, she may be entitled to Discretionary Leave to Remain. Discretionary Leave (DL) must not be granted where an individual qualifies for leave under the Immigration Rules or for Leave outside the Rules (LOTR) for Article 8 reasons. It only applies to those who provide evidence of exceptional compassionate circumstances or there are other compelling reasons to grant leave on a discretionary basis. One of these "compelling reasons" is covered by the Home Office circular 2 / 2006, which: ...provides guidance on the procedures for dealing with persons who are subject to immigration control and required to give evidence at criminal prosecutions in the UK... [...] Persons already in the UK If a person required to give evidence is already in the UK, IND [Immigration and Nationality Directorate] should be contacted at an early stage of court preparations, so that the person’s immigration status can be established. A person who meets the requirements of the Immigration Rules may be granted a short extension of stay. All applications to IND for an extension of stay will be subject to the appropriate fee1 and supporting evidence produced from the Crown Prosecution Service. Application Form FLR (O) should be used... This has since been withdrawn and replaced by form FLR(HTO) [...] A person already present in the UK but who is subject to removal action (for example as an illegal entrant), may be allowed to remain either in order to assist with investigations of serious crime or to be a witness for the Crown in a criminal prosecution. It is imperative that their immigration status is clarified and resolved at an early stage in order that the possibility of any allegation of inducement or favour regarding their immigration status is addressed. I have not been able to find any publicly available sources on the internet, but I am led to believe that she would be issued with an "Immigration Document" within the meaning of section 7(1)(a), Identity Documents Act 2010. This document may, depending on the particular circumstances, be a letter, a plastic "Residence Permit" card or some by other means to confirm Alice's temporary and discretionary leave to remain, and any restrictions that may be imposed. 1Depending on the particular circumstances any fees may be sourced from central funds, or she could apply for a fee waiver. | Is this interpretation correct? YES Encounters such as this should normally fall within the non-statutory stop & account which covers police-initiated conversations with members of the public to ask general questions about their activities when there are no reasonable grounds to suspect an offence. The terminology varies from Force to Force, but can be summarised as: What are you doing? Why are you in the area? Where are you going? What are you carrying? There is no legal requirement or obligation to answer any of these questions, and the police cannot lawfully detain anyone to ask them - unlike the statutory powers under Stop & Search and Arrest covered by the OP. | The official judgements do not reveal the funding for these lawyers; so where can I find this information? Nowhere. The commercial arrangements between lawyers and their clients are private and confidential like any other business transactions. You have no more right to know this then you do to know how your neighbour pays their mortgage. how could she have funded litigation in the EWHC and then EWCA before the UKSC? She may have rich parents or another benefactor who has in interest in her or the outcome of the case. She may have won the lottery. She may be the heiress of a dead rich uncle. By the way, "having" student loans does not mean you "need" student loans. Interest rates on student loans are cheap - if I need to pay $10,000 for a course and have $10,000 earning 5%, I would be nuts to use that if I could take out a loan at 3%. | I'm very sorry to hear about your situation. Unfortunately, this is too important to trust advice from strangers over the Internet. You should talk to an attorney familiar with Bulgarian immigration law. @jwh20 is correct; entering another country is not a human right. If they are not allowing you to return to your home country despite your following all laws, that is likely a human rights issue. This does not necessarily mean you won't be able to get into Bulgaria; if one person is preventing you from entering, an attorney may be able to get that person's decision overturned. | Maybe To be a refugee (a necessary prerequisite to claiming asylum) you must meet the UN definition as incorporated in the host country’s domestic law: a person who: has a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’; ‘is outside the country of [their] nationality’; and is unable or, owing to such fear, is unwilling to avail [themselves] of the protection of that country’. It is important to note that “gender” is not one of the 5 grounds enumerated. However, while the definition is from the UN, the “the right of asylum is a right of States, not of the individual” or the UN. That is, each state decides who does and does not fall within one of the 5 categories even if their home state might not decide that way. This article discusses that “woman” (or a subset of “woman” e.g. divorced woman, transitioned woman etc.) could fit one of the categories - usually the “social group” or “religion” or “race”. It also mentions that common law jurisdictions have divergent approaches: Australian courts have adopted a ‘social perception’ approach which examines whether a group shares a common characteristic which sets it apart from society at large. In contrast, the jurisprudence in Canada, United Kingdom and USA has emphasised the ‘protected characteristics’ approach, which considers whether a group is united by an immutable characteristic or by a characteristic so ‘fundamental to human dignity that a person should not be compelled to forsake it’. | There is not a single legal term that encompasses all of these offenses in most jurisdictions. Instead, there are a number of different offenses that could apply based upon whether or not there is sexual contact, the nature of the coercion involved, and certain other details of the offense. To use a concrete and precise example, I provide the exact language of the most relevant offenses in Colorado's criminal statutes, since they are easily available to me and I am familiar with them, and they are typical, for the most part. I omit the language used to determine offense category within offenses when there are more and less aggravated versions of an offense that have different criminal penalties (e.g. kidnapping has a higher grade of offense if it is not possible to verify that the kidnapped victim has been subsequently released and is alive). But, the terminology used for the kinds of offenses that you describe in not nearly so uniform as the terminology used for sexual assault or rape (and some jurisdictions would include some or all of the conduct you describe as a subtype of sexual assault). In Colorado, there is an offense called "Unlawful sexual contact". Section 18-3-404, Colorado Revised Statutes, which basically means a rape that does not involve penetration. Any actor who knowingly subjects a victim to any sexual contact commits unlawful sexual contact if: (a) The actor knows that the victim does not consent; or (b) The actor knows that the victim is incapable of appraising the nature of the victim's conduct; or (c) The victim is physically helpless and the actor knows that the victim is physically helpless and the victim has not consented; or (d) The actor has substantially impaired the victim's power to appraise or control the victim's conduct by employing, without the victim's consent, any drug, intoxicant, or other means for the purpose of causing submission; or (e) Repealed. (f) The victim is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses this position of authority, unless incident to a lawful search, to coerce the victim to submit; or (g) The actor engages in treatment or examination of a victim for other than bona fide medical purposes or in a manner substantially inconsistent with reasonable medical practices. There is also an offense called "Invasion of privacy for sexual gratification". Section 18-3-405.6, Colorado Revised Statutes (same link). A person who knowingly observes or takes a photograph of another person's intimate parts without that person's consent, in a situation where the person observed or photographed has a reasonable expectation of privacy, for the purpose of the observer's own sexual gratification, commits unlawful invasion of privacy for sexual gratification. It is generally used for peeping tom type offenses, but could conceivable involve forcing someone to expose themselves sexually without their consent but without physical contact with the offender. Similarly, "Internet sexual exploitation of a child", might apply to some cases, and is defined at Section 18-3-405.4, Colorado Revised Statutes (same link), although "importunes" and "entices" isn't really the same as coercion, and is instead more in the nature of deception than than coercion. An actor commits internet sexual exploitation of a child if the actor knowingly importunes, invites, or entices through communication via a computer network or system, telephone network, or data network or by a text message or instant message, a person whom the actor knows or believes to be under fifteen years of age and at least four years younger than the actor, to: (a) Expose or touch the person's own or another person's intimate parts while communicating with the actor via a computer network or system, telephone network, or data network or by a text message or instant message; or (b) Observe the actor's intimate parts via a computer network or system, telephone network, or data network or by a text message or instant message. In contrast, "Sexual assault" (a.k.a. "rape") is defined at Section 18-3-402, Colorado Revised Statutes (same link) as: Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if: (a) The actor causes submission of the victim by means of sufficient consequence reasonably calculated to cause submission against the victim's will; or (b) The actor knows that the victim is incapable of appraising the nature of the victim's conduct; or (c) The actor knows that the victim submits erroneously, believing the actor to be the victim's spouse; or (d) At the time of the commission of the act, the victim is less than fifteen years of age and the actor is at least four years older than the victim and is not the spouse of the victim; or (e) At the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age and the actor is at least ten years older than the victim and is not the spouse of the victim; or (f) The victim is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses this position of authority to coerce the victim to submit, unless the act is incident to a lawful search; or (g) The actor, while purporting to offer a medical service, engages in treatment or examination of a victim for other than a bona fide medical purpose or in a manner substantially inconsistent with reasonable medical practices; or (h) The victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented. Colorado does not have a provision parallel to statutory rape for unlawful sexual contact, nor does it have a deception to make someone think that a partner is a spouse provision for unlawful sexual contact, even though that is a recognized form of sexual assault. These are clarified with definitions in Section 18-3-401, Colorado Revised Statutes (same link; definitions inapplicable to the offenses cited omitted): (1) "Actor" means the person accused of a sexual offense pursuant to this part 4. (1.5) "Consent" means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. A current or previous relationship shall not be sufficient to constitute consent under the provisions of this part 4. Submission under the influence of fear shall not constitute consent. Nothing in this definition shall be construed to affect the admissibility of evidence or the burden of proof in regard to the issue of consent under this part 4. . . . (2) "Intimate parts" means the external genitalia or the perineum or the anus or the buttocks or the pubes or the breast of any person. . . . (3) "Physically helpless" means unconscious, asleep, or otherwise unable to indicate willingness to act. . . (4) "Sexual contact" means the knowing touching of the victim's intimate parts by the actor, or of the actor's intimate parts by the victim, or the knowing touching of the clothing covering the immediate area of the victim's or actor's intimate parts if that sexual contact is for the purposes of sexual arousal, gratification, or abuse. (5) "Sexual intrusion" means any intrusion, however slight, by any object or any part of a person's body, except the mouth, tongue, or penis, into the genital or anal opening of another person's body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification, or abuse. (6) "Sexual penetration" means sexual intercourse, cunnilingus, fellatio, analingus, or anal intercourse. Emission need not be proved as an element of any sexual penetration. Any penetration, however slight, is sufficient to complete the crime. (7) "Victim" means the person alleging to have been subjected to a criminal sexual assault. Also closely related is "criminal invasion of privacy", Section 18-7-801, Colorado Revised Statutes (at the same link), which is primarily targeted at "up skirt" photos, but could be used for the kind of offense described in the question. (1) A person who knowingly observes or takes a photograph of another person's intimate parts, as defined in section 18-3-401 (2), without that person's consent, in a situation where the person observed or photographed has a reasonable expectation of privacy, commits criminal invasion of privacy. . . . (3) For the purposes of this section, "photograph" includes a photograph, motion picture, videotape, live feed, print, negative, slide, or other mechanically, electronically, digitally, or chemically reproduced visual material. There is also offenses called "Human trafficking for sexual servitude" and "human trafficking of a minor for sexual servitude". Section 18-3-504, Colorado Revised Statutes (same link), which could sometimes apply (human trafficking without sexual servitude is also a crime but not within the scope of the question). A person who knowingly sells, recruits, harbors, transports, transfers, isolates, entices, provides, receives, or obtains by any means another person for the purpose of coercing the person to engage in commercial sexual activity commits human trafficking for sexual servitude. This is clarified with many definitions at Section 18-3-503, Colorado Revised Statutes (same link): (1) "Adult" means a person eighteen years of age or older. (2) "Coercing" means inducing a person to act or to refrain from acting, if the inducement is accomplished by any one or more of the following means: (a) The use or threat of the use of force against, abduction of, causing of serious harm to, or physical restraint of a person; (b) The use of a plan, pattern, or statement for the purpose of causing the person to believe that failure to perform the act or failure to refrain from performing the act will result in the use of force against, abduction of, causing of serious harm to, or physical restraint of that person or another person; (c) Using or threatening to use the law or the legal process, whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed; (d) Threatening to notify law enforcement officials that a person is present in the United States in violation of federal immigration laws; (e) The destruction or taking, or a threat to destroy or take, a person's identification document or other property; (f) Controlling or threatening to control a person's access to a controlled substance, as defined in section 18-18-102 (5); (g) The use of debt bondage; or (h) The exploitation of a person's physical or mental impairment, where such impairment has a substantial adverse effect on the person's cognitive or volitional functions. (3) "Commercial sexual activity" means sexual activity for which anything of value is given to, promised to, or received by a person. (4) "Debt bondage" means: (a) Demanding commercial sexual activity as payment toward or satisfaction of a real or purported debt; or (b) Demanding labor or services as payment toward or satisfaction of a real or purported debt and failing to apply the reasonable value of the labor or services toward the liquidation of the debt; or (c) Demanding labor or services where the length of the labor or services is not limited and the nature of the labor or services is not defined. (5) "Identification document" means a real or purported passport, driver's license, immigration document, travel document, or other government-issued identification document, including a document issued by a foreign government. (6) "Maintain" means to provide sustenance or care for a minor and includes but is not limited to providing shelter, food, clothing, drugs, medical care, or communication services. (7) "Makes available" means to facilitate contact between a minor and another person. (8) "Minor" means a person less than eighteen years of age. (9) "Person" has the same meaning as set forth in section 2-4-401 (8), C.R.S. (10) "Serious harm" means bodily injury or another harm, whether physical or nonphysical, including psychological, financial, or reputational harm, which is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person to perform or continue to perform labor or services or sexual activity to avoid incurring the harm. (11) "Sexual activity" means: (a) Sexual contact, as defined in section 18-3-401 (4); (b) Sexual intrusion, as defined in section 18-3-401 (5); (c) Sexual penetration, as defined in section 18-3-401 (6); (d) Sexual exploitation of a child, pursuant to section 18-6-403 (3) (a) and (3) (d); or (e) An obscene performance, as defined in section 18-7-101. (12) "Victim" means a person who is alleged to have been, or who has been, subjected to human trafficking, as described in section 18-3-503 or section 18-3-504. An obscene performance, referenced above is defined at Section 18-7-101, Colorado Revised Statutes (same link) in the pertinent parts, to mean: (2) "Obscene" means material or a performance that: (a) The average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex; (b) Depicts or describes: (I) Patently offensive representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or (II) Patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, or covered male genitals in a discernibly turgid state; and (c) Taken as a whole, lacks serious literary, artistic, political, or scientific value. . . . (4) "Patently offensive" means so offensive on its face as to affront current community standards of tolerance. (5) "Performance" means a play, motion picture, dance, or other exhibition performed before an audience. . . . (6.5) "Prurient interest" means a shameful or morbid interest. A person, as defined in the referenced language is defined as follows: "Person" means any individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, limited liability company, partnership, association, or other legal entity. Sometimes false imprisonment or kidnapping would be relevant charges: "First degree kidnapping" is Section 18-3-301, Colorado Revised Statutes (at the same link) would apply when someone else is kidnapped for purposes of coercing the person made to conduct the sexual act: Any person who does any of the following acts with the intent thereby to force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender's actual or apparent control commits first degree kidnapping: (a) Forcibly seizes and carries any person from one place to another; or (b) Entices or persuades any person to go from one place to another; or (c) Imprisons or forcibly secretes any person. Sometimes the victim would also be a victim of "second degree kidnapping" per Section 18-3-302, Colorado Revised Statutes (at the same link): (1) Any person who knowingly seizes and carries any person from one place to another, without his consent and without lawful justification, commits second degree kidnapping. (2) Any person who takes, entices, or decoys away any child not his own under the age of eighteen years with intent to keep or conceal the child from his parent or guardian or with intent to sell, trade, or barter such child for consideration commits second degree kidnapping. One can also imagine this offense including "false imprisonment", Section 18-3-303, Colorado Revised Statutes (same link): Any person who knowingly confines or detains another without the other's consent and without proper legal authority commits false imprisonment. This section shall not apply to a peace officer acting in good faith within the scope of his or her duties. "Criminal extortion" (a.k.a. "blackmail") defined at Section 18-3-207, Colorado Revised Statutes (at the same link) is likewise a plausible offense depending upon the nature of the coercion: (1) A person commits criminal extortion if: (a) The person, without legal authority and with the intent to induce another person against that other person's will to perform an act or to refrain from performing a lawful act, makes a substantial threat to confine or restrain, cause economic hardship or bodily injury to, or damage the property or reputation of, the threatened person or another person; and (b) The person threatens to cause the results described in paragraph (a) of this subsection (1) by: (I) Performing or causing an unlawful act to be performed; or (II) Invoking action by a third party, including but not limited to, the state or any of its political subdivisions, whose interests are not substantially related to the interests pursued by the person making the threat. (1.5) A person commits criminal extortion if the person, with the intent to induce another person against that other person's will to give the person money or another item of value, threatens to report to law enforcement officials the immigration status of the threatened person or another person. If drugs are used to induce the sexual conduct, assault charges could apply. The relevant offense in Colorado is "second degree assault", Section 18-3-203(1)(e), Colorado Revised Statutes (at the same link): A person commits the crime of assault in the second degree if: . . . (e) For a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness, or other physical or mental impairment or injury to another person by administering to him, without his consent, a drug, substance, or preparation capable of producing the intended harm; Notably, in Colorado, unlike many states and countries, intentionally causing bodily injury that is not serious bodily injury and does not involve a deadly weapon or a first responder injury, is a tort or municipal ordinance violation, but not a state law crime, except for some subtypes of disorderly conduct, harassment and hazing. "Disorderly conduct" includes assault in the context of fighting in public, in Colorado, but wouldn't be applicable in the circumstances of the question. Section 18-9-106, Colorado Revised Statutes (same link). A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly: . . . (d) Fights with another in a public place except in an amateur or professional contest of athletic skill "Harassment" is closest to bare physical assault in Colorado, and could apply in some of these cases. Section 18-9-111, Colorado Revised Statutes (same link). A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she: (a) Strikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact "Hazing" is defined in Section 18-9-124, Colorado Revised Statutes, and could be implicated if the means of coercion are related to this kind of activity. (2) As used in this section, unless the context otherwise requires: (a) "Hazing" means any activity by which a person recklessly endangers the health or safety of or causes a risk of bodily injury to an individual for purposes of initiation or admission into or affiliation with any student organization; except that "hazing" does not include customary athletic events or other similar contests or competitions, or authorized training activities conducted by members of the armed forces of the state of Colorado or the United States. (b) "Hazing" includes but is not limited to: (I) Forced and prolonged physical activity; (II) Forced consumption of any food, beverage, medication or controlled substance, whether or not prescribed, in excess of the usual amounts for human consumption or forced consumption of any substance not generally intended for human consumption; (III) Prolonged deprivation of sleep, food, or drink. (3) It shall be unlawful for any person to engage in hazing. If the conduct causes serious bodily injury or the loss of a pregnancy, there are other charges that could apply. There are also offenses that might apply in certain situations that apply only to certain kinds of victims or certain kinds of relationships. For example offenses limited to minors like child abuse, domestic violence offenses, offenses related to abuse of "at risk" persons, offenses related to sexual offenses involving psychotherapists, sexual offenses involving abuse of a position of trust, solicitation of prostitution, child prostitution offenses, criminal conspiracy charges, criminal solicitation charges, criminal attempt charges, organized crime charges when there is a pattern of such conduct for profit by an organization or group of people, etc. | It's not a matter of funding, it's a matter of eligibility for asylum in the UK which appears to be highly unlikely according to reports where 45 recent applications from US citizens were rejected.1 One option is to apply for a Skilled Worker Visa for one of the eligible occupations. The Skilled Worker route enables you to live and work in the UK for up to five years. You can apply for Indefinite Leave to Remain, a form of settled status, after you have lived in the UK for five years under the Skilled Worker Visa. Source As for "Can he legally work such a job with or without permission?", working in the UK without "leave to remain" (i.e. permission) is an offence contrary to section 24B of the Immigration Act 1971 1That said, if the UK and USA governments did come to an arrangement whereby "at least for the short run, they allow his claim to start in the UK" it is impossible to foretell the future and say with any degree of certainty what conditions, requirements, liabilities and demands each side would impose. | Just below the section you quoted it says: (3) The victim’s prior sexual conduct is not a relevant issue in a prosecution under this section. There is no stated provision for the case you mention. I suspect that the law would apply. Whether the authorities would choose to prosecute in such a case is a very different question. There might be caselaw of this subject. I wouldn't know. If this is more than hypothetical, i would urge consulting a lawyer with local knowledge of criminal practice. |
Do victims have a right to be informed of the follow-up or lack thereof on their crime reports? Meet Alice. She was assaulted and reported this to the police while offering them evidence of the assault. They tell her the report has been duly noted, thank her for her time, and wish her a nice day. Does she have a right to see what investigative work they have bothered to undertake on the basis of her report? If they decided not to bother, does she have a right to either know the basis of that decision or to challenge it if the grounds might appear to be bogus? | In April 2021, the Ministry of Justice released a "Victim's Code". Among other things, it says: You have the Right to be provided with updates on your case and to be told when important decisions are taken. You also have the Right, at certain stages of the justice process, to ask for decisions to be looked at again by the relevant service provider. This is elaborated on, including: If the police decide not to investigate your case, you will be given an explanation of this decision within 5 working days (1 working day under Enhanced Rights). The police will also offer you a referral to a support service. Where the police or the Crown Prosecution Service are considering an out of court disposal you have the Right to be asked for your views and to have these views taken into account when a decision is made. Where this is not possible for practical reasons, the police or the Crown Prosecution Service will tell you why If you are unhappy with a police or a Crown Prosecution Service decision not to prosecute the suspect, you have the Right to ask for a review under the National Police Chiefs’ Council or Crown Prosecution Service Victims’ Right to Review schemes. | There are no such laws that are specific to rape, but there are general laws about false statements. In every state there is some law against making a false statement to a government official, e.g. Washington RCW 9A.76.175 which says that one who "knowingly makes a false or misleading material statement to a public servant is guilty of a gross misdemeanor". To shift context slightly, if you report to the police that Smith stole your lawn mower when in fact you gave it to him, that is a false statement. However, there would have to be clear proof that you lied in your report, and not that there was a misunderstanding. If Smith stole the mower but the evidence did not support a theft conviction, that does not mean that you can be prosecuted for making a false statement (whereas, if someone has a video of you telling Smith "Here's a mower, which I give to you because I like you", then you could almost be prosecuted for making a false statement, were it not for the fact that the video is illegal in Washington). Perjury is the other related crime: RCW 9A.72.020 "a materially false statement which he or she knows to be false under an oath required or authorized by law". [Addendum] About the video of the mower being given away... Washington is an all-party consent state, meaning that you can't just record people, you have to have their permission (everybody's permission). RCW 9.73.050 says that information obtained by illegal recording shall be inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state, except with the permission of the person whose rights have been violated in an action brought for damages under the provisions of RCW 9.73.030 through 9.73.080 which is to say, "unless the person(s) who did not give permission to be recorded now give permission for the evidence to be admitted". Since "you" would be the one making a false statement, "you" would have an interest in suppressing the video, thus "you" could withhold permission for the video to be introduced. | You have the right to notify the owner of the car of their vehicular trespass and the consequences of that. You do not have the right to damage the car in giving said notice. You have the right to offer to clean the gum off whatever part of the car you stuck the notice to. If you succeed in cleaning it,the other party will not have a legal cause of action, in all likelihood, since there is no damage (though with a bit of imagination they might come up with some 'missed business opportunity' loss). The court would probably find your choice of sticker to be negligent (put the notice under the wipers? use painter's tape -get some if you don't have any). The rationale 'we had no other choice' holds no water: there are alternatives. 'Criminal Damages' is a concept in UK law, but it relates to willful damage such as vandalism, not accidents. It would be an issue if you had planned to cause damage, but that seems not to be the case here. | The burden of proof is always on the plaintiff (except for counterclaims brought by the defendant against the plaintiff). In your example, the businessman has to prove that he did not rape her. | Yes, "The offender will receive a criminal record." But, you ask, "How is this squared with s14(1) of the 2000 Act?" Well, you will note that it states that it "shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings." The key here is "other than the purposes of the proceedings" which means that, although there is no further punishment for your crime, you have still been convicted officially and it will be noted (on your record) as per the proceedings, and may be brought up in any subsequent proceedings ( "and of any subsequent proceedings which may be taken against the offender under section 13 above." ). You will also note section 12(7): "Nothing in this section shall be construed as preventing a court, on discharging an offender absolutely or conditionally in respect of any offence, from making an order for costs against the offender or imposing any disqualification on him or from making in respect of the offence an order under section 130, 143 or 148 below (compensation orders, deprivation orders and restitution orders)." Which further shows that an absolute discharge is not an absolute pardon, and should not be thought of as such. Rather, "You are very much guilty, but of such a minor crime that the experience of a trial has probably been enough, so we'll let you go without additional punishment." | united-states This answer analyzes the question under U.S. law, although it is really generally applicable in all countries with a common law legal system. I'm not familiar with how non-common law countries address this issue at this level of granularity. Given that Alice has been instructed by the court to stop publishing the data, and given that Mallory refuses to stop publishing the data, what might Alice be obliged to do to comply with the court? Very little. This is why courts very rarely issue orders like this one. Disobedience to a court order is enforced with a contempt of court proceeding against a party that allegedly knowingly and willfully failed to comply with the court order. But an inability to comply with the court order (at least if this is not due to sabotage by the party subject to the order after that party learns of the order's existence) is a complete defense to contempt of court sanctions. Contractually, this is why most non-disclosure agreements have liquidated damages and actual money damages remedies as well as the remedy of injunctive relief. If harm that can't be unwound results from conduct taken before an injunction is in place, or as a result of a breach of an injunction that the person who was ordered to do something can't remedy, then a court imposes money damages and/or punitively imposes a criminal fine or incarceration on a party who defied a court order. | No, you are not obligated to provide the requested information. You're out of trial court and into the court of appeals, where the civil discovery rules have basically no effect. If the case gets kicked back to the trial court, you would likely be required to respond truthfully. To cover your bases and look responsible, the most proper thing to do would probably be to respond to the discovery requests, but answer with nothing but an objection to the requests on the basis that the Rules of Civil Procedure do not apply after the case has been dismissed. At that point, the burden is on the other party to make a motion to compel, which he probably won't do. And if he does, I'd expect the court to deny it summarily based on the dismissal. | Yes. The jurisdiction I am familiar with is England and Wales. Conviction requires evidence (witness testimony is evidence) which proves the case "beyond reasonable doubt". It is open to the jury to find the witness so convincing that they find that they are sure the defendant committed the crime. In general of course, prosecutors prefer to have some supporting evidence (either additional witnesses, or circumstantial evidence - like DNA.) |
What role do the police have rather than the CPS in "charging" criminals? What is the difference for that matter between "charging" and "prosecuting"? | The charging guide outlines the division of charging responsibility between police and the Crown Prosecution Service: The police may charge: Any summary only offence, irrespective of plea; Any offence of retail theft (shoplifting) or attempted retail theft, irrespective of plea, provided it is suitable for sentence in the magistrates’ court; and Any either way offence anticipated as a guilty plea and suitable for sentence in magistrates’ court; Provided that this is not: a case requiring the consent to prosecute of the DPP or Law Officer; a case involving a death; connected with terrorist activity or official secrets; classified as Hate Crime or Domestic Abuse under CPS Policies; a case of harassment or stalking; an offence of Violent Disorder or Affray; causing Grievous Bodily Harm or Wounding, or Actual Bodily Harm; a Sexual Offences Act offence committed by or upon a person under 18; an offence under the Licensing Act 2003. Prosecutors make charging decisions in all cases not allocated to police. | Only Parliament has the power to define crimes in law (well, also in the UK there are common law crimes, where ages ago the courts defined punishable wrongs). The police have the power to enforce existing law, but not the power to create new crimes. Part of police power is the power to use force to enforce laws. If a person is trying to kill another (which is a crime), the police can use force to stop the person from committing this crime. Police power can be statutorily encoded (Parliament passes a law saying what police can and cannot do), or it could be part of common law. As for laws regulating a suspect, there may be a specific statutory prohibition – "you may not reach into your pocket" – or there is a common law inference to be made, that if the police have the power to order you to not reach into your pocket you may be forced to comply. The subtle distinction here is that if it is a crime to reach into your pocket when told not to, you can be prosecuted and imprisoned. If there is no such crime, you just have the consequence that you can be roughed up to some extent for disobeying the police order. One act of Parliament is the Offences against the Person Act 1861 §38 which says Whosoever . . . shall assault any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, NB "assault" does not require physical contact: creating apprehension suffices. Another law is the Police Act 1996 §89 which says Any person who resists or wilfully obstructs a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale, or to both These laws do not exhaustively list all of the things that are forbidden (e.g. they do not say "may not bite. nor scratch, nor kick..."), instead, the prohibitions fall under the general rubric of assault and resisting. Under the circumstances, it is possible that the person could be criminally prosecuted, but even in lieu of a prosecution, it is strongly probable that the police use of force in this instance was lawful. One would have to await the outcome of investigations and litigation to know for sure. | No, filing a police report in good faith does not expose you to liability Of course, making false allegations or allegations where you are recklessly indifferent to the truth to police is both a serious crime in itself and defamation. Of course, breaking a contract is not a crime and the police are unlikely to take any action. If you borrow money from the bank and don’t pay it back, that’s not stealing or fraud unless it can be proven that you had no intention of paying it back when you borrowed it. This is a civil matter for the bank, not a criminal matter for the police. | Yes and no. There are numerous cases where criminals, upon breaking in to somewhere, find evidence of a worse crime and notify authorities. This will provide reasonable suspicion enough for entering the scene. Generally, in testimony, Statements against Interest are more believable because a burgler wouldn't admit to breaking and entering if he had a way to explain why he was there in the first place. (Example: Alice breaks into a Warehouse and sees a mutilated body and blood everywhere. Alice immediately stops her theiving ways and calls 911 to let them know about the scene. Whether or not Alice stays, a dead body is enough probable cause to secure the crime scene without warrant. Its in Alice's interests to stay and help as there is trace of her at the scene and she would be pegged as a suspected murderer. If she's picked up and admits to calling the cops, it's good, but staying and helping out after the call will likely get her off on the charges related to the murder.). It could also work if they are persuing one crime and discover evidence of a second unrelated crime. (i.e. Alice robs the factory and gets away. The Factory Foreman calls the cops to investigate the crime scene, which at this point, does not need a warrant. While investigating, the Cops find security footage that Bob, the night guard, killed Chuck, a late night worker, removed his body, and cleaned the scene, all before Alice broke into the factory. The outcome of the case being made against Alice does not affect their need to prosecute Bob, as they obtained that evidence while looking for Alice in a valid investigation, not Bob, thus it is legal). Under these situations a crime that leads to a separate valid crime involving a different party is admissible. There are two possible reasons that the attorney might think this: Fruit of the Poisonous Tree: This is the obvious element... the kids committed a crime with the hopes that the cops would use the evidence found by them in their commission of a crime to get the real bad guys. The attorney parent thinks this is stupid because the kids broke in specifically to do this and thus any evidence is now tossed out of court. This isn't usually the case in how this scenario will play. Generally the cops are more than happy to look at evidence obtained by criminals that points to another crime. In fact, this is how a lot of gang enforcement units and drug enforcement units operate... pick up a small fish and cut a deal for evidence against a bigger fish (turning state's in the criminal lingo, as the witness is becoming State's Evidence to another crime). As long as it's given to the cops as part of legitament evidence seeking, the cops can follow the leads where ever they... er... lead... Chain of Custody: This is probably, if properly thinking, what the attorney parent is thinking that's a bit more probable. Lets say these kids found a dead body with a sword in it and take the sword to the police... this could get dicey as the kids have contaminated the evidence in possible ways that the killer's lawyer could get thrown out. One thing CSI doesn't always show (though there are a few episodes where it comes up, but not many) is that when something is taken in as evidence, it is carefully documented, sealed, and tagged with a check in/check out list. Every time the seal is broken, the person breaking the seal notes the time, date, and reason and when does, reseals it with a new seal, and signs the time and date of the seal again. This is so at trial, the attorneys know exactly who opened up the evidence, what they did, and what possible contaminants were introduced. You even have to sign into a crime scene before you go up to the yellow tape. A good defense lawyer would call into question any evidence from anything the kids handled to get the evidence tossed (i.e. Your honor, these Meddling Kids handled the sword without following the chain of evidence. They even let their dog handle it. They had already harrassed my client earlier today by insunuating that he was involved with a hoaxed paranormal activity to scare people away from the factory. Since they claim they found the sword, but did document it at the scene, we don't know anything about it prior to the police's chain of custody. I motion that the evidence be dismissed.) If this is successful, anything from the sword is now no longer admissible as if the sword had never been found (including blood of the victim on the blade and finger prints of the suspect on the hilt)... in effect the evidence was prossessed as best the police could but the veracity of the story of it's discovery is too questionable to be considered. The defense does not have to be right, he just has to show there could be another explanation for the sword and the evidence linking his client to the crime committed by it. In short, without specific details, the attorney parent could be right or could be wrong, or more humorously, right, but for the wrong reasons. Edit: U.S. only. See other answers for other jurisdictions. | Police have discretion whether to arrest and prosecute or not. In exercising this discretion they may take into account whether victim is identified and what he/she says, but there are no legally enforceable rules around it. Discretion is discretionary after all. Other factors that may influence the police's decision whether to arrest notwithstanding whether the victim cares may include but are not limited to: Level of potential threat that the offender poses; Strength of evidence that the crime was committed (and hence prospects of conviction). Say the owner of the store may not care or have seen anything, but there are witnesses; Likelihood that the offender may get away; Personality of the offender; Mood of the police officer. | The Crown Prosecution Service has said: Since deceased persons cannot be prosecuted, the Crown Prosecution Service will not make a charging decision in respect of a suspect who is deceased. | There was a case like that in 2010 in germany tl;dr synopsis of the German article: The police raided the private home of an alleged member of a criminal gang. This was performed as a no-knock raid. The police officers did not announce themselves as such when they started to break open the door. The suspect had reason to believe that a rival gang was planning an attempt on his life. So the suspect believed that the people trying to break into his home were actually members of said gang trying to murder him. The suspect used a firearm to shoot at the intruders through the door, lethally injuring a police officer. When the police officers then identified themselves as such, the suspect surrendered immediately. A court later ruled that killing the police officer was self-defense, because they were reasonably convinced that the defendant was unaware that he was dealing with police officers, believed to be in a situation where his life was in danger and where lethal violence was the only way to save his life. Here is the verdict. [In German, of course] | england-and-wales "Lead defendant" is not used, unless colloquially by some, but a comparable term would be "principal defendant" which is more than mere style as it becomes important when establishing the hierarchy of defendants for, say, culpability and at sentencing (i.e. it has some legal implications). It could also relate to the first-named on the indictment (see rule 3.32(1)(b)(ii) Criminal Procedure Rules 2020) and often this is the principal, but the prosecutor has discretion on the order of names on the indictment, because: It is important to bear in mind that defendants are called to give evidence in the order in which their names appear on the indictment. This means that a tactical decision may need to be made as to the order of defendants on the indictment, bearing in mind the evidence and the nature of the case. Source Although tagged united-states, I have followed the guidance from the LawSE Help Centre: "Even if you supply a jurisdiction tag, we expect and encourage answers dealing with other jurisdictions ... please tag your answer using the tag markdown: [tag: some-tag]" |
What factors determine whether an assault will be vigorously looked into pursued and charged by the police or not? Meet Bob. He has filmed some thugs assaulting him by shoving, hitting, kicking at him and forcibly taking his phone away on the street until a passerby finally strongly urged him to give it back. Bob reports this criminal assault to the police some months later while submitting his incontrovertible video evidence. What factors would determine the degree of rigour with which the police look into a pursue this crime? | There are two related questions: What factors determine how police will exercise their investigative discretion? How will charging decisions be made? Investigative Discretion I cannot enumerate the multitude of factors that inform the police's investigative discretion, but this guide from the College of Policing is a good resource. At the initial stage, factors include: scene management, risk management, record keeping, community impact. The priorities are to: preserve life, preserve scenes, secure evidence, identify victims, and identify suspects. The initial investigation is aimed at dealing with the immediate needs of victims and witnesses and gathering enough information to allow an investigative evaluation. Whether the investigation goes further depends on the circumstances of the crime, the material gathered so far, and resource requirements. Eventually, the police will coordinate with Crown Prosecution Service to identify further investigative needs of the prosecution, if a charge has been laid or is being considered. More specific steps are discussed here. Importantly: Each force sets their own crime investigation standards, which are disseminated to staff. They should be interdependent with the national intelligence model, to ensure that they support the deployment of appropriate resources to areas of identified priority at the correct time. Police officers exercise a high level of discretion when dealing with situations on the street. This is not directly overseen by sergeants and inspectors, and this makes the supervision of frontline officers challenging. Crime investigation standards are, therefore, useful to monitor and measure the performance of individual investigators and the quality of the investigation. Prosecutorial Discretion Here are two resources describing the charging decision: College of Policing, Charging and case preparation Crown Prosecution Service, Charging (The Director's Guidance) The default is that in order to charge, prosecutors must be satified that there is sufficient evidence to provide a realistic prospect of conviction and that there are no public interest factors tending against prosecution which outweigh factors in favour of prosecution. But, there are a limited range of cases in which the seriousness or circumstances of a case justify making an immediate charging decision, even though there is insufficient evidence to meet the "realistic prospect of conviction" standard. In order to charge in these special circumstances, five conditions must be met. I will not describe these in detail, but there must reasonable grounds to suspect that the person has committed the offence (this is a lower standard than a "realistic prospect of conviction"), there must be further evidence forthcoming, the seriousness of the case justifies making an immediate decision, there are substantial grounds to object to bail, and it is in the public interest to charge. Further, there is a lot of discretion for police or prosecutors to proceed with an out-of-court disposal where it is in the public interest and is an appropriate response. | Bob appears to have committed "attempted larceny" by extortion, contrary to § 155.05(2)(e)(v): (e) By extortion. A person obtains property by extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will: ... (v) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; See § 110.00: Attempt to commit a crime. A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. And see § 110.10 which covers the "impossibility" that Bob actually had compromising images from Alice's non-existent webcam: Attempt to commit a crime; no defense. If the conduct in which a person engages otherwise constitutes an attempt to commit a crime pursuant to section 110.00, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be. (NB Bob's sentence, if found guilty, would depend the value of his attempted extortion) | Unless there is enough evidence to convict one or more of the suspects, none will be convicted. In general the argument: We know it must be one of you, but we don't know whch, so we find you all guilty. is not allowed in any non-dictatorial jurisdiction. Just how much evidence is needed for a conviction varies by jurisdiction in theory, and by judge or jury in practice. Also, it would be possible to charge several of the residents with having acted jointly in the crime, but there would still need to be sufficient evidence against each defendant to obtain a conviction. | Yes and no. There are numerous cases where criminals, upon breaking in to somewhere, find evidence of a worse crime and notify authorities. This will provide reasonable suspicion enough for entering the scene. Generally, in testimony, Statements against Interest are more believable because a burgler wouldn't admit to breaking and entering if he had a way to explain why he was there in the first place. (Example: Alice breaks into a Warehouse and sees a mutilated body and blood everywhere. Alice immediately stops her theiving ways and calls 911 to let them know about the scene. Whether or not Alice stays, a dead body is enough probable cause to secure the crime scene without warrant. Its in Alice's interests to stay and help as there is trace of her at the scene and she would be pegged as a suspected murderer. If she's picked up and admits to calling the cops, it's good, but staying and helping out after the call will likely get her off on the charges related to the murder.). It could also work if they are persuing one crime and discover evidence of a second unrelated crime. (i.e. Alice robs the factory and gets away. The Factory Foreman calls the cops to investigate the crime scene, which at this point, does not need a warrant. While investigating, the Cops find security footage that Bob, the night guard, killed Chuck, a late night worker, removed his body, and cleaned the scene, all before Alice broke into the factory. The outcome of the case being made against Alice does not affect their need to prosecute Bob, as they obtained that evidence while looking for Alice in a valid investigation, not Bob, thus it is legal). Under these situations a crime that leads to a separate valid crime involving a different party is admissible. There are two possible reasons that the attorney might think this: Fruit of the Poisonous Tree: This is the obvious element... the kids committed a crime with the hopes that the cops would use the evidence found by them in their commission of a crime to get the real bad guys. The attorney parent thinks this is stupid because the kids broke in specifically to do this and thus any evidence is now tossed out of court. This isn't usually the case in how this scenario will play. Generally the cops are more than happy to look at evidence obtained by criminals that points to another crime. In fact, this is how a lot of gang enforcement units and drug enforcement units operate... pick up a small fish and cut a deal for evidence against a bigger fish (turning state's in the criminal lingo, as the witness is becoming State's Evidence to another crime). As long as it's given to the cops as part of legitament evidence seeking, the cops can follow the leads where ever they... er... lead... Chain of Custody: This is probably, if properly thinking, what the attorney parent is thinking that's a bit more probable. Lets say these kids found a dead body with a sword in it and take the sword to the police... this could get dicey as the kids have contaminated the evidence in possible ways that the killer's lawyer could get thrown out. One thing CSI doesn't always show (though there are a few episodes where it comes up, but not many) is that when something is taken in as evidence, it is carefully documented, sealed, and tagged with a check in/check out list. Every time the seal is broken, the person breaking the seal notes the time, date, and reason and when does, reseals it with a new seal, and signs the time and date of the seal again. This is so at trial, the attorneys know exactly who opened up the evidence, what they did, and what possible contaminants were introduced. You even have to sign into a crime scene before you go up to the yellow tape. A good defense lawyer would call into question any evidence from anything the kids handled to get the evidence tossed (i.e. Your honor, these Meddling Kids handled the sword without following the chain of evidence. They even let their dog handle it. They had already harrassed my client earlier today by insunuating that he was involved with a hoaxed paranormal activity to scare people away from the factory. Since they claim they found the sword, but did document it at the scene, we don't know anything about it prior to the police's chain of custody. I motion that the evidence be dismissed.) If this is successful, anything from the sword is now no longer admissible as if the sword had never been found (including blood of the victim on the blade and finger prints of the suspect on the hilt)... in effect the evidence was prossessed as best the police could but the veracity of the story of it's discovery is too questionable to be considered. The defense does not have to be right, he just has to show there could be another explanation for the sword and the evidence linking his client to the crime committed by it. In short, without specific details, the attorney parent could be right or could be wrong, or more humorously, right, but for the wrong reasons. Edit: U.S. only. See other answers for other jurisdictions. | It depends on the nature of the crime, among other things. Under Section 8 of the Police and Criminal Evidence Act 1984 (PACE) the police must provide evidence to a court that a search warrant is necessary to secure and obtain evidence relevant to an ongoing investigation into a crime. If there is evidence that time is of the essence with regards to the evidence at stake (e.g. there is a high probability that the evidence will be destroyed unless it is secured immediately) then the search warrant will be expedited. Once the search warrant has been secured, it will be an operational matter for the police to decide when and how to act on it. They could choose to do a dawn raid, for example, or they could monitor the suspect for a week and then search the property when the suspect is out. Be aware that under Section 18 of PACE, a search warrant is not necessarily required. The police may, in the course of arresting someone for an indictable offence, search the premises without a warrant provided certain criteria are met. Of course, this is predicated on the police having grounds for arrest, and in the vast majority of cases, a search warrant will be obtained. | Charged? Of course, the police can charge you with anything at any time Could you be convicted? Maybe. Their best shot is charging you with “Manslaughter by an unlawful and dangerous act” also called constructive manslaughter. The Crown must prove your act: was intentional, was unlawful, leads the reasonable person to realise that some other person is at risk of physical harm, and caused the death. The first two are uncontestable: the protesters are deliberately engaging in an illegal act. No 3 would be up to the jury. No 4 is also up to the jury and would turn on the evidence that the delay to the ambulance caused the death. | It's called police and prosecutorial discretion to discern when to arrest and prosecute; and that situation in particular is also the result of a decision of the jury of the court of public opinion. Permits are required to sell on the street in Oakland. But not everyone who sells has a permit, and not everyone who is confronted about not having a permit is arrested and prosecuted. There are simply too many potential cases to prosecute. And, the police officer has the discretion to ticket or not. When you get pulled over while driving or riding a bike, you don't always get a ticket, since the officer has the option of discretion. When the officer responded and found an eight year-old selling water, he obviously was aware of the fact that it was a violation. But he was also aware of the court of public opinion. What is it going to look like if he arrests an eight year old and their parent? Allison Ettel was right, in a purely legal sense, to make the report. And technically, the child (and adult) needed a permit. And could have been ticketed and prosecuted. But it was Ettel was tried and convicted in the court of public opinion, and she lost her case. Happens a lot. | The general rule is that using force in self-defense is justified if the person using the force reasonably believes it immediately is necessary to prevent the unlawful use of force against themselves or a third party. Deadly force is not generally justified except in response to a reasonable fear of deadly force, or to prevent certain violent crimes (like rape, kidnapping, robbery, etc.) Force is not justified in retaliation. In some states, if you're not at home (or maybe even then), you also have a duty to retreat before you can use deadly force in self-defense. So, for your specific questions: If they hit you once but aren't continuing to hit you, it's illegal to hit them back. You can only use force to defend yourself, not to get even. If someone gets in your face without touching you, you might be allowed to use force, but it depends on the circumstances. You don't have to wait for someone to hit you, but you can't sucker-punch someone because you want more space in a mosh pit. Your use of force needs to be something you reasonably believe to be necessary to stop/prevent their unlawful use of force. It also needs to be proportional to the force you're defending against; you can meet deadly force with deadly force, but shooting someone to stop them from slapping you is murder. Likewise, no one's going to believe that you really thought you had to beat the crap out of someone in order to stop them from slapping you, or that it's in any way proportionate to what they did. Deadly force is not allowed in defense of a person unless you reasonably think deadly force is needed to prevent the unlawful use of deadly force, or to prevent one of a few crimes being committed against them. Depending on the state, it might be presumptively justified if the person is trying to forcibly break into your occupied house, car, or place of business, but that's state-dependent. |
Are there actual cases where a woman got jailed for being raped by an underage rapist? This PDF says that if a minor rapes an adult it is statutory rape. The case is Henyard v. State. It goes on showing a sample of a 15-year-old man using a gun to rape a mother in front of her 2 daughters. The case ended badly. The mother is shot. The 2 daughters are also murdered. The PDF argues that the mother, if she survived somehow, would still be guilty of statutory rape. However, I cannot find any info whether she is actually charged for that or not. It seems that no sane DA would charge her with that. I may be wrong. Imagine a similar case. A 15-year-old male pulls gun in front of a 21-year-old woman. They have sex. Now, the rapist is guilty of many things of course. But under the law, both are guilty of rape. The rapist for well, rape. The woman for having sex with an underage rapist. Are there any actual cases that are like this? Are there cases like this where the rape victim does not report the crime knowing that she will be found guilty too? | Laws vary by state, of course. In Wisconsin, according to the 1993 case State v. Neumann: the offense of second-degree sexual assault by sexual intercourse does not require proof of intent and therefore someone who claimed to be too drunk to know what he was doing was still guilty. Although that was a case involving adults and therefore a different statute, I think the statutes are similar enough to produce a similar result in a case involving a minor. But even though intent isn't required, according to the 2007 case State v. Lackershire she's still be not guilty in Wisconsin. It flat out says that: If the defendant was raped, the act of having sexual intercourse with a child does not constitute a crime. Additionally, in your case, there was a gun to her head. Under Wisconsin law, the woman could not be guilty of statutory rape, because of this law: 939.46 Coercion. (1) A threat by a person other than the actor's coconspirator which causes the actor reasonably to believe that his or her act is the only means of preventing imminent death or great bodily harm to the actor or another and which causes him or her so to act is a defense to a prosecution for any crime based on that act, except that if the prosecution is for first-degree intentional homicide, the degree of the crime is reduced to 2nd-degree intentional homicide. The paper you link to mentions several possible defenses like coercion, and how each defense is not applicable in some states. I don't think it ever clearly establishes that there is a state where there is no defense. The example you (and the paper) give occurred in Florida. I couldn't find an applicable statute in Florida law, but that appears to be because it's in common law instead of a statute. According to the 1981 Florida case Wright v. State: Florida has recognized the common law defense of duress as a defense to crimes other than homicide so I don't think the woman would have been guilty under Florida law, either. The paper states that she was in fear for her life and that of her daughters, and it is extremely apparent in hindsight that her fear was reasonable. I imagine that if the author was able to find an actual case where a victim was prosecuted under similar circumstances (or even one where the victim clearly could have been prosecuted under the law of that state) he would have used that case as his example instead. It seems that he couldn't... and that might tell you something. He probably used this example because it was sensational, but it doesn't seem that the woman was guilty under applicable law. | In US law, there was, as far as the question indicates, no probable cause to search her phone at all, Therefore (unless there is some cause not mentioned in the question), any such search is illegal, and any evidence found in such a search, or that is found as an indirect result of such a search (pointers toward it are found in the search, and followed) would not be admissible in any criminal case against Alice. In the case of Bob, if his friends and family approach the police or other authority with a vague suspicion that Bob might be involved in the creation of illegal content That will probably not constitute probable cause for an arrest of Bob or a search warrant for his phone. Unless the accusation does prove to constitute probable cause, any evidence found during such a search would not be admissible against Bob in a criminal case. In practice, most US police would not undertake either search without better evidence than is described in the question. But some police will overstep the lines, which is what the US exclusionary rule is for. Legal procedure does not as far as I know make a distinction between "exploratory" and "confirmatory" evidence. Instead, evidence is either admissible or not. The rules for when evidence is admissible are quite complex, and vary by jurisdiction. Some of them are more traditional than logical, and some of them are addressed to particular problems that have arisen in particular circumstances. But the US Fourth Amendment protections against unreasonable searches, and the requirement of probable cause before search or arrest warrants are issued, serves some of the same purpose. Other countries have different rules, but many of them restrict the authorities to some extent from making arbitrary searches with no initial evidence. Response to the Revised Question As the question has been edited, there seems to be fairly clear probable cause to search Alice's phone, and if clear evidence of "illegal pornographic content" presumably actually child pornography, as no other kind is illegal simply to posses) is found, she can be brought to trial and perhaps convicted. The mere "suspicion" of Alice's "friends and relatives" would add little and mi8ght well not even be admissible. The facts, if any, on which those suspicions are based might be admissible, one cannot tell from the summary in the question. The case against Bob, however, remains weak. Indeed there still seems to be no probable cause either to arrest Bob nor to se3arch his phone, and the results of any search that was done would not be admissible. Probably none would be done without more evidence. The OP wrote: Thus, although the situation looks grim for both, since the evidence against Bob is confirmatory, it might be considered stronger. Not so, the case against Bob is weaker, indeed so weak that an arrest would be unlikely, and if one were made, the case would likely be dismissed before going to trial, assuming no more evidence than was included inn the question. The evidence prior to the search seems to consist only of vague suspicion not supported by any actual evidence, and so there is nothing to confirm, and no valid search would occur. That suspicion of Bob came before the search, and the search is thus "confirmatory" is not relevant. The question is, what evidence against each defendant is admissible, and does the totality of the admissible evidence amount to "proof beyond a reasonable doubt" no matter what order it was discovered in, or what idea was in the minds of the investigators, provided that they were acting lawfully so that their findings are admissible. | Your question is very broad, but yes, there innumerable ways that the actions of a victim/complainant can result in a not-guilty verdict. I'll list some. Contemporaneous consent to contact. If the victim/complainant consented to the contact, then the offence of assault or sexual assault will not have been committed. Self-defence. If the victim gave the accused reasonable grounds to believe that the victim was about to use force against the accused, then depending on the circumstances, it might not be an offence for the accused to take certain actions against the victim for the purpose of defending themself (the accused). The provocation defence that is based on conduct of the victim. See Criminal Code, s. 232, which can result in a not-guilty verdict for murder. | The Testimony Of Children Under Oath Do Children As Young As Seven Years Old Testify In U.S. Courts? Could it actually happen in American courts? Yes. It can and does happen on a regular basis, although a seven year old is at the very lower end of the range at which children are called to testify as witnesses with any regularity. Any witness which a court determines is competent to testify, which includes many, but not all, minors, testifies under oath. Some jurisdictions have a hard and fast minimum age at which someone can be competent to testify (often age seven is the minimum), while other states make it a rule of reason for the court to evaluate on a case by case basis. Child testimony can be used in any kind of case, not just sex offenses against children or child abuse and neglect cases, although those cases are the kind of cases where child testimony is most common. Special Arrangements Sometimes Made For Child Testimony While special arrangements for the form and circumstances of that testimony can sometimes be ordered by a court (sometimes raising constitutional issues regarding whether the "confrontation clause" right of a criminal defendant is violated in a criminal case under U.S. Constitutional law), the default rule is that a minor testifies in the same manner as anyone else. Often the exact wording of the oath is changed when a child can't reasonable be expected to understand the normal wording. Perjury In Cases Of Child Testimony Under Oath If the person testifying under oath is a minor, a perjury offense would be presumptively tried in juvenile court rather than an adult criminal court. Also, it is possible that even if a child is sworn and testifying under oath, that a child will not be old enough to prosecute for the crime of perjury, even in juvenile court, if the child intentionally commits perjury. An oath has symbolic value and is believed by many people to have an effect, even when there is no credible threat of a perjury prosecution for lying under oath. In practice, perjury prosecutions, even for adults, for court testimony, are vanishingly rare even in pretty clear cases, even though the crime is committed basically every day that courts are open for business. For example, there are dozens of such prosecutions a year in Colorado including both in court and out of court sworn statements, and there are tens of thousands of evidentiary hearings and evidentiary trials each year in Colorado, or which perjury is actually committed in perhaps 5%-10% of such hearings and trials. Alternatives To Child Testimony Under Oath Evidence Of Unsworn Out Of Court Statements Made By Children It is also possible for things that a minor says to be recounted by someone who heard them said or a transcript of a conversation with someone that was not under oath (in which case it is hearsay, but may come within an exception to the hearsay rule), or via a videotape of a child saying something (which is a record to be authenticated prior to its admission). But, in both of those cases, what the child says that the court considers as evidence is not testimony. Interviews In Chambers Of Children Another process by which courts obtain information from children, often in child custody cases, is for the judge to personally interview the children, not under oath and not with testimony taken down by a court reporter, either in or outside the presence of counsel for the parties (and almost always not in the presence of parents or any audience present at a hearing) in the judges chambers. This is primarily done not to elicit evidence of facts, per se, so much as to discern the preferences, desires and concerns of the children themselves as expressed directly. Statements of preferences, desires and opinions of children, because they are not statements of fact and are instead statements of opinion, are by definition not capable of being prosecuted for perjury, since their truth or falsity is not objectively determinable. These interviews are given more weight in the case of older children than in the case of younger children and this process would not be used at all for infants or pre-schoolers. | Is this realistic? Yes. The dramatic performance plays out in the same way that it would in the U.S. Court system. The actual killing of the wife would be 'legal', so can he be charged for murder for something that has been done legally, only because they can prove is intent to kill her before that? Especially since he has already been acquitted of that fact. Mostly, this is an issue of causation and not double jeopardy. From a double jeopardy perspective, the crime of murder is not complete until the person dies, and they have not be tried for murder, so this is a different crime that had not occurred until after the attempted murder trial was over. Causation Issues Even if the immediate cause of the wife's death is withdrawal of life support, the shooting could still be a legally sufficient cause of the wife's death. For example, suppose that you shoot someone and the hospital can't give the victim a blood transfusion because the victim has blood type O- (universal donor) which can only receive blood from other people with blood type O-, and the hospital, due to negligence on the part of a hospital administrator, has run out out of type O- blood. The fact that the victim would not have died if the hospital has not negligently failed to have type O- blood on hand does not provide a defense to murder on the part of the person who shot her. While terminating life support is "legal" it also constitutes a non-judicial finding with legal effect on the part of the person authorizing it and the physicians signing off on the decision, the further medical care would have been futile and that the person whose life support was terminated was already dead in key material respects, even though they would not be dead for purposes of a murder charge until life support is terminated. When death is a natural and foreseeable result of action that causes physical harm, the death is caused by the act that causes the physical harm. Something else that causes death would have to be a "superseding cause" and not just an additional cause of death. Thus, the fact that life support was terminated legally does not mean that she cannot be a murder victim. Indeed, many murder victims are people who are on life support for some period of time and then have that life support terminated because it is futile to continue medical care and the person is already "brain dead" or something equivalent to that. Collateral Estoppel Issues Double jeopardy does carry with it a related concept of "collateral estoppel" which provides that facts necessarily decided in one criminal case cannot be decided differently in a subsequent, related criminal case in some circumstances. But, collateral estoppel applies only when the facts in the prior criminal case were necessarily decided on the merits in the prior criminal case. Acquittal of criminal charged does not necessarily include a determination that someone was innocent of the charges. The fact that he was acquitted of attempted murder does not mean that the jury found that he didn't attempt or intend to murder her. In particular, a dismissal of criminal charges as a result of a technicality that excluded evidence related to an element of the crime for which there was an acquittal, is not a determination on the merits that a particular element of a crime was actually absent, so it would not be binding in the subsequent criminal case for murder. An acquittal does not mean that every element of the prior criminal charges was found not to be present. Collateral estoppel arising from the double jeopardy right, in contrast, might be a ground for dismissal of the murder case, if the man's primary (and perhaps only) defense to the attempted murder case had been that he had established the affirmative defense that someone else committed the murder, or that he had an alibi that made it impossible for him to have committed the murder. Then, the jury would have found on the merits that this defense, equally applicable to the murder case, had already been established. | Context is important. There is no law against taking a picture of a child who is entirely naked or exposing certain body parts. The laws in question such as 18 USC 2251 refer to the fact that the minor "engage[s] in, any sexually explicit conduct". Sexually explicit conduct is defined in 18 USC 2256, and would include "lascivious exhibition of the genitals or pubic area" (which does not include nipples of anyone). Federal law does not define "lascivious", but the ordinary meaning of the word does not include the situation that you describe. The Justice Department, which goes after child pornographers, provides this guide to federal child porn laws. Georgia's child porn law is only marginally different, referring to "Lewd exhibition" rather than "Lascivious exhibition" , and including the "Condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude" (so a picture of a person holding a naked baby would technically qualify, but is highly unlikely to be prosecuted as production of child porn). These laws pertain to any form of child porn, including "private use only". Dissemination would be an added charge. | Edit: because this question has tagged the United States, the answer below discusses US law, not the law of any other country. Because they're separate crimes that, as a general rule, don't merge, and prosecutors like to charge multiple crimes when they can because it gives them leverage in plea negotiations. You could also charge attempted murder if there's been an actual murder, it's just that it would kind of be a waste of time since they would merge upon conviction. You're close on the view that assault is attempted battery. But, note that generally assault is placing someone in imminent fear of receiving a battery, whereas as an attempt usually requires a 'substantial step' towards commission of the actual offense, so the ambit of assault is slightly larger than the ambit of attempted battery (again, generally speaking). | Is this interpretation correct? YES Encounters such as this should normally fall within the non-statutory stop & account which covers police-initiated conversations with members of the public to ask general questions about their activities when there are no reasonable grounds to suspect an offence. The terminology varies from Force to Force, but can be summarised as: What are you doing? Why are you in the area? Where are you going? What are you carrying? There is no legal requirement or obligation to answer any of these questions, and the police cannot lawfully detain anyone to ask them - unlike the statutory powers under Stop & Search and Arrest covered by the OP. |
Personal copying of source code from a programming book Many books on computer programming publish source code listings and example programs as part of the printed book to demonstrate some aspect of the language. When I'm learning from such books, I typically copy one or more examples from the book into my computer in order to run them, study them, run them using a debugger, etc. I copy the version from the printed book and do not use any other included media such as CD-ROMs or Web sites. I had always assumed this sort of copying for personal use on my own computer would not be considered copyright infringement, but now I'm not so sure. Sometimes, the book does mention an implied license near the beginning that clarifies how the source code can be used. In this case, the license normally allows copying for the sort of purpose I'm talking about. But in the large majority of cases, there is no license mentioned at all pertaining to how the source code included in the book may be used. If there are electronic media provided with the book (CD-ROM, Web site, etc.), the electronic versions of the source code typically do mention a license, but I do not typically make use of such media, so for the purpose of this question I want to ignore them. In one unusual example, there is a well-known programming book that explicitly forbids any personal use of the source code in the book on a computer without first obtaining a license: You must read this section if you intend to use the code in this book on a computer [...]. Without the license [...] this book is intended as a text and reference book, for reading and study purposes only. It then goes on to clarify the granted personal use license: If you personally keyboard no more than 10 routines from this book into your computer, then we authorize you (and only you) to use those routines (and only those routines) on that single computer. However, I cannot accept this license due to the restrictions. For example, I may want to keyboard more than 10 routines. And I may want to use some method of copying other than to "personally keyboard" them (e.g. automatic dictation software). My questions: For the case that a book does not include a license that mentions copying the source code from the book version, is it allowed for the reader to make personal copies of the source code to run on one's own computer? For the case that a book does include a license, but that license is found to be unacceptable by the reader, is it allowed for the reader to make the personal copies? Does the fact that there is a license offer that the reader does not agree to make any legal difference as compared with case 1 (no license offered at all)? Assume that the source code to be copied would normally qualify for copyright protection (i.e. do not consider trivial source code examples that by themselves may not be eligible for copyright), and that the reader either owns or is borrowing (e.g. from a lending library) a legal copy of the book. | united-states Ignoring fair use, copying code in which copyright subsists would be copyright infringement. ... the owner of copyright under this title has the exclusive rights [...] to reproduce the copyrighted work (17 USC 106) Code is eligible for copyright as a literary work. Copyright protection subsists [...] in original works of authorship fixed in any tangible medium of expression [...] Works of authorship include [...] literary works [...] (17 USC 102) Oracle v Google. (Fed. Cir. 2014): It is undisputed that computer programs— defined in the Copyright Act as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result, 17 U.S.C. § 101—can be subject to copyright protection as literary works. One way that copying the code would not be infringement is under a scenes a faire or merger analysis. In some circuits (e.g. 6th Circuit), scenes a faire/merger can preclude copyrightability. In other circuits (e.g. 2nd and 9th Circuits), these apply as affirmative defences after an initial finding of infringement. In either case, just as in fair use, this would be a case-by-case analysis, so we can't provide a blanket answer. | There are 196 sovereign nations in the world (more or less); each of them has its own copyright laws. 168 are signatories of the Berne Convention which requires them to extend to foreign copyright holders at least the same rights that they would have domestically. It relies from this on the concept of country of origin. Assuming that the book was originally published in the UK (as it has a London based publisher) then the applicable copyright law is that of the UK. Exceptions to copyright can be found here. The relevant exemption is the first part of the Teaching section: the copying of works in any medium as long as the use is solely to illustrate a point, it is not done for commercial purposes, it is accompanied by a sufficient acknowledgement, and the use is fair dealing. Acknowledgement is pretty straightforward but fair dealing as a legal concept means: There is no statutory definition of fair dealing - it will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fair-minded and honest person have dealt with the work? Factors that have been identified by the courts as relevant in determining whether a particular dealing with a work is fair include: does using the work affect the market for the original work? If a use of a work acts as a substitute for it, causing the owner to lose revenue, then it is not likely to be fair is the amount of the work taken reasonable and appropriate? Was it necessary to use the amount that was taken? Usually only part of a work may be used The relative importance of any one factor will vary according to the case in hand and the type of dealing in question. If the work had been simultaneously or previously published in the USA the relevant consideration is fair use rather than fair dealing. Fair use typically gives the copier much greater latitude than fair dealing does. As to the specifics of posting on stack exchange. Extracts on SE are unlikely to affect the original market (they may even enhance it by serving as advertising) so providing that you have used the minimum amount necessary to illuminate your answer it is probably fair dealing (and fair use). This would probably be true even if, across tens of thousands of questions, the entire book were quoted. Notwithstanding, if the copyright owner issued SE with a take down notice they would take it down because they are not in the business of fighting protracted copyright cases even if they are in the right. | A translation is a devivative work - the copyright owner has the exclusive right to these So, yes, translation is prima facie copyright infringement. Strictly speaking, if you translate it, it's a derivative work because you exercised creativity in making the translation; what Google translate does is not a derivative work, it's a copy because there is no creativity. Either way, only the copyright owner can do (or authorise) this. Whether it's legal or not depends on if what you are doing falls within one of the exceptions to the applicable copyright law such as fair use or fair dealing. Attributing the original author does not, of itself, allow translation. Additionally, I'm not able to find the copyright documentation for the site link I provided above. What is "copyright documentation"? Copyright exists the moment a work is created and no further documentation is required. Essentially, I could translate the whole documentation by myself to avoid this problem. No, you can't - see above. If copy-pasting the google translate is illegal, then exactly how much must I edit, move around sentences, change words, and such until the text is no longer plagiarized? All of it. If you were, based on your own knowledge of the software, to write a manual without any copying o the existing manual, that would not be copyright infringement. Is this plagiarism or copyright infringement? It's copyright infringement - plagiarism is an academic misconduct issue not a legal one. where can I check the copyright for the above link? The site you linked has "Copyright © 2020 Acquia, Inc. All Rights Reserved" in the bottom left corner which identifies the copyright holder, the date and prohibits all copying ("all rights reserved"). This isn't necessary but it is helpful. If you really want to do this, contact Acquia, Inc and ask for permission. | The problem is that open source licenses incl AGPL have legal force because copyright prevents copying + modifying software by default (software is treated as a “literary work” and therefore enjoys copyright protection). But copyright on datasets and ML models is very different – if it is even recognized at all. Thus, similar copyleft techniques would only work in particular jurisdictions. For example, the EU recognizes “database rights”. A copyleft license that accounts for this is CC-BY-SA-4.0, meaning that in an EU context, databases based on the original database would have to use the same license. However, database rights are not recognized in the US (facts are not copyrightable, and the “sweat of the brow” doctrine is not recognized). Thus, the CC-BY-SA-4.0 license would not have any copyleft effect with respect to databases in an US context. Independently of copyright in the database as a whole, the data in the database might be copyrighted material, for example if the database contains text or images, complicating matters further. Machine learning models derived from a data set are much more difficult. Clearly, ML models that have been trained are not a creative work and are therefore not eligible for independent copyright protection. At most, it can be argued that the model is an automatically transformed version of the input data, so that copyright in the input data implies copyright in the model.1 Perhaps hyperparameter choices could reflect some creative input. This is very much an active topic of debate. Given this uncertainty, it would be impossible to create a public license that works reliably. 1. An interesting discussion topic is the potential effect on Microsoft's Copilot ML model which was also trained on GPL-licensed source code. Instead of deriving force from copyright law, it would be possible to impose conditions via a contract, i.e. EULA-like terms that only provide access to the material after the terms have been accepted. But again, this is difficult. Contract law differs wildly between jurisdictions. For example, a contract is defined by the “meeting of minds” in some jurisdictions; by offer, acceptance, and consideration in others. But how does such a contract ensure appropriate consideration? How can acceptance be ensured if the material is publicly available? For these reasons, I think that unless broad international agreement emerges about IP protections for machine learning models, such a copyleft system for ML models is impossible. It is worth noting that the lack of such protections is probably quite good for innovation and research, since researchers are free to improve each other's work without legal concerns. The idea of copyleft is a hack to subvert the “everything is forbidden by default” system of copyright, but “everything is allowed by default” might be better.2 2. To continue the Microsoft Copilot example: some copyleft advocates like Bradley M Kuhn are sceptical about Copilot's GPL compliance, but remind us that copyleft maximalism means copyright maximalism, and that this is not the goal of open source. https://sfconservancy.org/blog/2022/feb/03/github-copilot-copyleft-gpl/ | Your GPL example detracts from the question: see this recent answer. Setting aside GPL-specific conditions, the legal underpinning of software licensing is copyright law, whereby copying source code or an executable is only allowed with the permission of the copyright holder. There are two partial exceptions: "fair use" (generally not relevant to software), and a specific statutory permission to copy software in particular ways (making a backup, plus the act of executing software which requires copying from disk to memory). The latter permission only applies if you have legally acquired a copy of the software. Which explains why nobody sells copies of software, they sell a license to use software (a subtle, legalistic distinction, which is essential to modern software qua business). The terms of the license say what you may and may not do: if you violate the terms, you do not have permission to copy the software, and are liable for copyright infringement. One limit on the terms is that they cannot take away a right that you already have by copyright law (e.g. "fair use" cannot be negated by a license term). Another limit is that the terms have to be consistent with contract law, hence the license cannot include a human centipede obligation – or, "all your stuff belong to us". When a contract is ambiguous, the ambiguity is construed against the writer, and that is also so with software licenses. Also like the situation with contracts, the terms have to be legal, that is, cannot deny some right or requirement encoded in law. There is a legal requirement that disclaimers have to be "prominent", and that holds of license terms. As for "tricking" a person, that's not supposed to happen, with a proper license. If you put stuff out there and say nothing, nobody has been given permission to copy the item. You can make it available to a specific named person, but that is limited to one person, thus a license includes language allowing anyone to copy, but also requiring that the license be retained with any subsequent copies. Hence B copies from A, and sees the license; B may share with C (assuming a decent license) but must include that or substantially equivalent license; and so on. A problem arises if B redistributes without original license, substituting a bogus license. When C copies, that copying is not done with the permission (implied or express) of A, and C could be open to legal consequences. B is also clearly open to consequences, since re-distribution with the self-perpetuating license is a violation of the terms of A's condition grant of permission. Ignorance of the true ownership of copyright is no excuse, and there is no general innocent-infringement exception to copyright law in the US. However, the part of copyright law that talks about remedies for infringement, 17 USC 504(b)(2) lessens the burden on the innocent infringer: In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. Still, not zero. I don't see how adding some NOPs would make it impossible to prove that you have a copy of someone else's IP. Perhaps it's not a trivial, but still quite possible. | "Pastiche" is a literary, not a legal term, and as a professional coder, I would not use it to describe code that to some extent imitated other code. The legal question here is: is your code a derivative work of the code it is based on, and if it is, did you have permission to make that work. Copyright, in an Berne Convention country, which includes the EU, does not protect ideas and concepts, it protects expression. It protects the choices of words and symbols, and other forms of expression. If all you did was study example code, presented for educational purposes, and then write code that performs a similar function, using the same general techniques, then I don't think you have infringed copyright. That, after all, is why people post code to Stack Overflow and similar sites, to allow them to learn how to use specific coding techniques, including in commercial projects. I have used techniques posted to SO to do coding as part of my paid job. The usual test for copying under US law is "substantial similarity". This takes into account cases where there is essentially only one way to say or code something. I don't know the exact tests under the various laws of various EU countries, and they will not all be the same. But I suspect that on this point they are, well, substantially similar :). I can't advise on your specific situation. But if it is as described, I don't think you have a problem. | Provided you are in one of the 170+ countries signatory to the Berne Convention (the current 10 non-signatories are, exhaustively: Eritrea, Marshall Islands, Nauru, Palau, San Marino, Iran, Iraq, Ethiopia, Somalia, and South Sudan), then copyright comes into existence at the moment a work is fixed in a tangible medium, not when it is published. The initial copyright owner is the author of the work. In cases of employment, the "author" might be the natural person who authored the work, or the corporate person who employed the natural author. To clarify your thinking about registration: copyright registration is a public record of authorship (or copyright ownership). Registration does not create a copyright, but is merely a recording of the copyright that was automatically created at the moment of original authorship. Depending on circumstances and jurisdiction, Alan might have a legitimate claim to copyright on his own work. However, he will be quite hard-pressed to find a convincing theory of law that allows him to publish the unpublished copyrighted work of other people without their permission. This leaves him either to admit defeat -- he cannot possibly own the copyright of his coworkers' code, so he cannot have legally reproduced it -- or else make the baldfaced lie that the code has no other authors other than Alan himself. For your company to disprove such a claim, you may employ sworn testimony of your coworkers, you may employ code analysis to show differing coding styles (suggestive of multiple authors), or you may show code backups or version control history showing the progressive authorship of the work over time by many people. (Sure, a Git history is possible to fake, but a realistic history with feature branches, "whoops, undid the typo in the last commit" messages, etc. would lend significant weight to your company being the original authors.) | Basically, you cannot do it. You are required to include the MIT license in any derivative work. However, that holds only for the parts that you import from this other project. You can identify which parts of the final product are copied from the MIT-licensed program (and indicate "these parts are subject to the following MIT license"), and then you can do whatever you want with the remainder that you wrote. The downside of not licensing your material is that nobody can use it. To use it, people would need permission, which is what a license is. If you don't license it, you don't give permission, so people can't use it. You presumably want to subject your own contribution to different licensing conditions, so then you would state those conditions and clearly indicate what parts of the code you wrote. |
Do Will witnesses in NY state require a copy of the Will prior to witnessing/signing? In New York State in order to be a legally valid Will, the Will must be signed by two (2) Witnesses who are in no way, shape or form beneficiaries of the estate/Will. Do the Witnesses need to see/read a copy of the Will in advance, or are they just there at the signing to affirm that the Testators are of sound mind, memory and testamentary capacity (not under duress, etc.)? Is it customary for Witnesses to receive (in advance) copies of the Will for their own records? | NY Est Pow & Trusts L § 3-2.1(a)(1)(C)(4) requires that There shall be at least two attesting witnesses, who shall, within one thirty day period, both attest the testator's signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence addresses at the end of the will. There shall be a rebuttable presumption that the thirty day requirement of the preceding sentence has been fulfilled. The failure of a witness to affix his address shall not affect the validity of the will. That means that the witnesses attest to having seen you sign the will, and you must know that it is a will being signed. There is no requirement that they see the will itself, and they do not "attest" anything regarding sound mind, memory or testamentary capacity. It is not required that witnesses receive a copy of the will (for any reason), and it is probably extremely rare for them to do so. However, a witness could be called, during a subsequent court procedure, to testify as to relevant facts such as that a beneficiary held a gun to the testator's head. | No, in germany there is no universal requirement as to form (Formfreiheit). This includes associating a signature with a name in block letters. In principle you can enforce a contract in court even if the written contract does not identify the contracting parties by spelled out name, but by signature only. It stands to reason there is no benefit in omitting the full names. The legislature implemented elevated form requirements for certain legal transactions by mandating the use of a notary. Here, again, there is no requirement as to put a plain text name next to your signature. The link between signature and person is established via the notary’s documentation. You could put an alias “Donald Duck” next to your signature, the notarial deed will indicate that in fact Kalle Richter signed the document. As far as I am aware all european-union legal transactions will need to go through their official channels. It is simply not possible, for example, to establish a European Economic Interest Grouping on a scrap of paper. Thus there is no issue and in turn no regulation. One thing is for sure, the european-union does not impose a “minimum framework” on its member states. I recollect there are some directives regarding electronic signatures, but that is a different story now. | First, while Law and Order should not be taken as an accurate depiction of a New York trial, it especially should not be taken as an accurate depiction of an Australian trial. Australian law, while it has some major similarities with US law (both ultimately derive from the law of England), is not US law. With procedural matters (such as "may jurors ask questions of witnesses"), it can potentially differ from court to court. In general, jurors may not simply ask a witness a question. The jury's job is not to investigate and figure out if the defendant was guilty or not; it's to evaluate the cases presented by each side. US (and Australian, as far as I know) courts use what's known as the adversarial model, where the prosecution and the defense both present the best cases they can and a neutral third party decides which case was stronger. In a US criminal trial, the state is expected to justify why someone should be in jail; the jury shouldn't be helping them justify it. This isn't how all jurisdictions around the world work, but it's how the US does. One concern with juror questions is that it has the risk that the juror will not be impartial. Jurors are not supposed to get into arguments with witnesses, or to go after them to try to prove a point. In your case, the juror might be introducing an entirely different line of reasoning from the one either side is presenting, and that's simply not their job. People have raised the concern that a juror thinking up questions might be deciding the case before they hear all the evidence, and might give too much weight to the answers to their own questions (or read a lot into it if a question is denied). There are also rules on what questions may be legally asked; lawyers know these and jurors generally don't, which is why jurors may almost never directly ask a question to a witness. Where they can ask questions, it's virtually always written questions, which the judge reviews, gives to both sides to see if anyone objects, and then reads to the witness in a neutral tone. | That book provides advice on legal writing; it is not a source of rules for legal writing. Rather than repeatedly identifying themselves using their full name, parties customarily refer to themselves in the third person, e.g., "The defendant refused to waive his Sixth Amendment right to a speedy trial." In practice, though, pro se litigants regularly refer to themselves in the first person, and there is no formal consequence for this. | Does Florida state law require that an estate go into probate in the event the seller in a real estate transaction passes away prior to closing? Yes, if the seller is the owner of the property which is not in joint tenancy with right of survivorship or something similar (such as a transfer on death deed). A will is meaningless until it has been admitted to probate (which is a term that in the narrow sense means "validating the authenticity and validity of a will). Likewise, an adjudication that someone had no will cannot be made without a probate proceeding. There is no exception for a clear an uncontested will. "Will" means "probate" pretty much by definition. This doesn't mean, however, that the closing of the property has to waive until the probate proceeding including a full administration of the probate estate and closing of the probate estate is required. Often, a will can be admitted to probate and an executor can be appointed to manage the estate in a matter of a few weeks to a few months if there is no contest to either the validity of the will or the appointment of a particular person as an executor. Generally, once the executor is appointed in the probate case, the real estate closing can go forward, sometimes with some additional uncontested motion practice. Once the property is sold, the proceeds are put in an estate bank account pending further administration of the estate's assets and liabilities. Indeed, even if the will is contested, as long as a consensus can be reached among the interested parties regarding who the executor should be, the real estate closing could go forward despite the fact that the will is contested. Powers of attorney are sometimes granted to real estate agents to complete a transaction in the event of a seller's incapacity. But powers of attorney are void no later than the point at which the person with the power of attorney learns of the death. (The common law rule was that a power of attorney was void at the moment of death, even if no one involved in the transaction knew that fact yet.) The only person with authority to sign the deed to sell the property, if the property is titled in the name of the seller individually, with no co-owner (or with a tenant-in-common co-owner), is the probate estate's executor. The real estate contract is a claim in the probate estate, which the probate estate is required to carry out if it is able to do so. But a real estate contract, in and of itself, doesn't transfer the property by operation of law at closing. Until the probate estate is opened, the buyer doesn't even have anyone who can be sued to demand that the real estate contract be performed. | The first question would be whether those papers are indeed "legit", and we don't do product reviews. Assuming the company didn't mess up and she was legally served, the next question would be whether she responded (in the legal sense) or not. If she failed to respond at all within 21 days (add 9 days if she is out of state), then your next step would be to file default divorce paperwork (presumably that's covered in the service you paid for). If she agreed to the divorce and the courts knows that, then you file some more paperwork and she doesn't have to show up to anything. If she disagreed, there will be an "answer" and possibly a counterpetition. There is an exchange of paperwork w.r.t. assets, a mandatory mediation stage, more paperwork, disclosures etc. and a pre-trial conference, followed by a trial. If you are at this stage, attendance is mandatory. As long as you have proof of service, nobody requested a postponement, and there is some evidence to support your claim, a default judgment can be issued. It's not clear what "divorce proceeding" you are referring to that involves her attendance. However, you can file divorce paperwork yourself or using an online service, and using an online service does not render the paperwork illegitimate. It's not guaranteed that the service did what would be necessary for you to get the outcome you desire, but that's beyond the scope of what we can tell you. | The general answer is, no, it is not valid in the US, see this article. Exceptions to laws recognizing e-signatures abound which exclude wills from general laws recognizing electronic signatures. Nevada is the one current exception (conveniently located between Oregon and Arizona). There have been attempts to legalize electronic wills, including in Arizona (SB 1298). Although Tennessee does not recognize e-wills, a gentleman in Tennessee went ahead and did it, and in Taylor v. Holt, 134 S.W.3d 830 the court decided that the will was properly executed and witnessed. Electronic notarization is recognized in Arizona, though apparently for things you file with the government (not things that your heirs will eventually file), whereas in Oregon it is a general-purpose way of getting a document notarized. Since the courts are loathe to completely disregard a person's last will and testament because they didn't narrowly follow requirements, you might be able to "get away with it", but it would not make things easier for the executor. | You'd have to specify the cases you want. All court transcripts are a matter of public record, though a copy may cost you a fee from the court clerk's office to recieve. It should be pointed out that not all cases got to an evidentiary stage to actually evaluate on the record any evidence. A vast majority were decided on pre-evidentiary rules such as standing or laches (timeliness) and not all cases that were able induced evidence debunked the evidence. Any appellent case would also not induce evidence as all appeals cases are strictly matter of law rather than matter of fact (evidence), so those cases would be asking a higher court to double check non-evidentiary decisions. The fact that the party that brought the suit does not have standing to bring the suit OR that the party that brought the suit brought it too late for the courts to proceed on the matter does not debunk evidence that the fraud happened in the eyes of the law... it simply means the questions of fact were never addressed at all |
Why do lawyers write contracts with language that is more difficult to understand than other works? The recent Ig Nobel Prize Winning work "Poor writing, not specialized concepts, drives processing difficulty in legal language" by Martínez, Mollica, and Gibson demonstrates that contracts are written in language that is harder to understand than other genres such as academic or media writing. In particular, center-embedded clauses are used at more than twice the rate in contracts than in other professional writing except newspapers, lead to long-distance syntactic dependencies and are recalled and comprehended at lower rates than excerpts without these clauses. Why is this? One would have thought that making contracts understandable to the parties would generally be in everyone best interest, but it is possible to imagine situations where this is not the case. Abstract of the paper: Despite their ever-increasing presence in everyday life, contracts remain notoriously inaccessible to laypeople. Why? Here, a corpus analysis (n ≈10 million words) revealed that contracts contain startlingly high proportions of certain difficult-to-process features–including low-frequency jargon, center-embedded clauses (leading to long-distance syntactic dependencies), passive voice structures, and non-standard capitalization–relative to nine other baseline genres of written and spoken English. Two experiments (N=184) further revealed that excerpts containing these features were recalled and comprehended at lower rates than excerpts without these features, even for experienced readers, and that center-embedded clauses inhibited recall more-so than other features. These findings (a) undermine the specialized concepts account of legal theory, according to which law is a system built upon expert knowledge of technical concepts; (b) suggest such processing difficulties result largely from working-memory limitations imposed by long-distance syntactic dependencies (i.e., poor writing) as opposed to a mere lack of specialized legal knowledge; and (c) suggest editing out problematic features of legal texts would be tractable and beneficial for society at-large. | There Is Little Pressure To Improve Contract Drafting One piece of the puzzle is tradition and habitual writing style. A customary writing style for legal documents evolved over time, some of those conventions have evolved overtime (e.g. "Party of the first part, party of the second part"), others have not. Archaic vocabulary is slowly being weeded out, but again, it is almost never the goal of someone drafting a contract to reduce the reading level of the document. As long as the judge, or other lawyers, know what it means, it is an aesthetic stylistic issue more than it is a substantive issue of importance. Contract drafting is highly decentralized and change happens only when there is a powerful impetus for change. Does this mean that legal writing can't be improved? No. Some lawyers are excellent writers in both contract drafting and in court documents. A well drafted contact can reduce litigation costs when there are disputes. It can also increase compliance with the intent of the parties by preventing disputes over what the contract means from arising in the first place. But most lawyers are mediocre contract drafters, and there is little selective pressure in transactional legal work to weed out their sub-optimal writing styles. Bryan A. Garner, who among other things is the editor of Black's Law Dictionary, is pretty much the leading figure in the United States pushing for a more modern, more readable, less flabby legal writing style. This is exemplified, for example, in his book "Legal Writing in Plain English" (2d ed. 2013). But even then, a lot of the impetus for his stylistic decisions was primarily driven by the need to get across ideas clearly, in a minimum of words, when writing appellate briefs with word limits. This is also the main context in which legal writing is taught in law school and continuing education classes. In contracts, in contrast, in our current era of the word processor, long documents are easy to deliver, and long passages of writing can be cut and pasted. So, the same outside pressures to limit word counts and persuade judges who will read legal briefs cover to cover in order, are not present when drafting contracts. So, the pressure to have a succinct plain language writing style in contracts is less strong. This said, when there has been regulatory pressure to write consumer contracts in a way that an average consumer can understand, it can be done. For example, most credit card agreements are written in very clear plain English with a very low reading level compared to other contracts. But those easy to read credit card agreements are drafted by committees of many lawyers and senior executives, each charging hundreds of dollars an hour, over many meetings over a period of weeks of debate and refinement, and a cost of many tens of thousands of dollars each to draft. The flabby and clunky character of legal writing also reflects client imposed budgetary constraints. It takes much more time and effort, with multiple rounds of rewriting and editing, to write a clean, easy to read contract than it does to write a kludgy one. Lawyers bill by the hour and clients want the job done at a price that they can afford. There is little incentive in contracts that will not be used many times as forms, to take the effort to produce a clean, easy to read final product. This kind of beautifully drafted contract costs much more to draft for the client, but provides little additional legal benefit to the client. Few contracts are ever litigated at all, and when they are, the legal drafting tends to focus on only a handful of key provisions that are carefully drafted. Boilerplate language, which is often less carefully drafted, is very rarely litigated, so the quality of that writing doesn't matter much. Capitalization As far as capitalization goes, I agree with @user6726 that all-caps writing is often required by law. These requirements were based upon the previous legislative assumption that it was more prominent and more likely to be read, which has since been proved to be false empirically. But new empirical discoveries about readability haven't changed the relevant laws requiring certain language in contracts to be "prominent" and in all caps. I would also add that there is a legal writing convention that defined terms have capital letters (although not necessarily all caps), which is a pointer to when one needs to look for a definition, that relaxes the need to put the definitions of capitalized words in the actual sentence where those terms are used. Weird capitalization can facilitate shorter sentences. The Relevant Audience I'd also agree that the primary audience for contract language is often not an unsophisticated non-lawyer consumer. While it's true that the average American reads at about the 5th grade level and can't do algebra, that person isn't the target audience. In the same vein, you don't write scientific journal articles for an audience of the average American. When push comes to shove, written contracts are interpreted as a matter of law by judges who are legally trained, and not a matter left to a jury of non-lawyers to decide. Most business to business contracts are negotiated by lawyers. Most business to business contracts have as additional audiences sophisticated senior managers of business with some limited formal business law training in college, who also have great familiarity with the class of contracts involved. Even in consumer contracts, when consumer protection regulations and statutes do not compel another approach, the intent is frequently a MEGO effect (My Eyes Glaze Over) in the hope that the consumer, who often isn't at liberty to negotiate the terms anyway, won't decide to read the fine print. The only language in a contract that needs to be clear to the consumer is the actionable part like the price that needs to be understood by the consumer to perform it. And, often those parts of a contract are provided in a separate short summary document with the full contract available for future reference but not intended to be routinely read in full. Furthermore, characteristic legal writing styles can convey a sense of importance and official authority. It sounds like it is and is intended to have legal effect. It's the same reason that fictional magical spells are far more often in Latin or Greek or Sumerian than they are in plain English. Language too ordinary conveys the false impression to a client that anyone could write the contract even if legal skill is implicated in drafting it, and can even cast doubt over whether a document was intended to be a legally binding contract in the eyes of a non-lawyer encountering it. Long Sentences, Definitional Clauses, And Pronouns One of the key factors that is identified as making legal writing hard to read is the use of internal definitional clauses within sentences and the use of very long sentences. It is possible to draft without those. But, often including it in the same sentence reflects the drafting lawyer's thought process. It can also reflect a negotiated contract drafting process. Even if an initial draft of a contract has simple sentences clearly laid out, it may be easiest to clarify a bargaining point in contracting negotiations by complicating the sentence in question to make it reflect the other side's preferred interpretation, even if it is stylistically ugly. And, changing that language in a final draft to make the contract look pretty is viewed with the suspicion that a subtle substantive change in the meaning of the contract from the haggled term was intended. As an aside, some contract provisions in hotly negotiated contracts are also sometimes intentionally ambiguous. This is because resolving the ambiguity could result in a fight over a side issue that could bust the deal if each side insisted on their own interpretation. Leaving the term ambiguous allows a judge evaluating a dispute that actually arises, if a dispute even arises over that term (which it often doesn't), in order to do what makes sense under the circumstances instead. Also, lawyers are wretchedly afraid of an adverse party quoting a sentence in a contract without including the related context that clarifies its meaning (e.g. by omitting definitions that are not obvious from the plain language of the contract). Unlike most prose, contracts are rarely read front to back the way you would a court opinion or a newspaper report or a short story. Normally, someone using a contract quotes only the relevant portion of the contract in isolation from the larger entire document. When ideas are broken into separate sentences, lawyers are very worried, rightly or wrongly, that different sentences in a paragraph or section modify each other, rather than being isolated islands of legal propositions. So lawyers are more comfortable when as many connected ideas as possible are all contained in the same sentence in which everything must be related somehow. Lawyers feel more comfortable and secure arguing about the meaning of a single sentence, than they do arguing that a simple short sentence should have a particular meaning based upon the larger context in which it is found. Similarly, lawyers are quite wary about using pronouns that aren't defined terms in the contract, for fear that the person that the pronoun refers to will be incorrectly assigned, even though this is an unnatural way of writing. Common Law Contracts v. Civil Law Contracts Also, as an aside, contract drafting is an area where common law legal drafting styles differ materially from civil law country legal drafting styles (e.g. in continental Europe). This is because in civil law countries there is a great effort made to provide for what would usually be boilerplate language in U.S. contracts as default statutory rules that match the default choices that are usually made in contracts negotiated between third-parties. Far less can be taken for granted in common law countries. A lot of the operative language in a common law jurisdiction contract, including much of it the most difficult to read legalese in contracts, is simply implied in law unless specifically disavowed, in many civil law countries. As a result, civil law country contracts are usually much shorter and more focused on the deal specific terms than a common law jurisdiction contract. A civil law business agreement that runs to five pages might typically take 30-40 pages to write saying exactly the same thing in a common law jurisdiction. | Eugene Volokh categorizes this as "crime-facilitating speech" in his articles, "The Freedom of Speech and Bad Purposes", and "Crime-Facilitating Speech". He characterizes the situation like this: Some chemistry textbooks discuss how explosives are made, some posts to computer security discussion groups discuss security bugs in a leading operating system, and some works on criminology or forensics discuss how hard-to-solve murders are committed. May the explicitly politically connected speech be treated as more valuable than the scientific speech? The Supreme Court has never decided a case squarely involving the suppression of scientific speech, but it has repeatedly described scientific speech as constitutionally equal in value to political speech. He presents a split amongst the circuits and statutes regarding mens rea for crimes stemming from such speech. The Supreme Court has not ruled on the issue. In one example case, the 9th Circuit ruled that merely distributing computer code "with the knowledge that it would likely be used for bookmaking" could be punished. Other cases have held that speech must "purposely" rather than incidentally inform people how to commit a crime in order for that speech to be punished. | For instance, clients often ask them for an assessment of "the chance of X going through". While clients can make it clear (in writing) that lawyers will not be held legally liable for giving "pure advice", lawyers often still refuse to give any guidance (even when they clearly do have one in mind). I do this on a regular basis. This said, lawyers are ill equipped to evaluate cases in these terms, because they don't see a full and unbiased sample of cases that they study academically, because there are too many distinctions between cases to make apples to apples comparisons of them, and because most lawyers went into law because they don't like thinking about things in mathematical terms. Lawyers will not infrequently say that a case or argument is strong or weak, or very strong or virtually frivolous, but evaluating the strength of a case is difficult and there are good academic studies that show that lawyers systemically overestimate the strength of their own cases. So, humility about the likelihood of a particular outcome is a good professional norm to have in place. Basically, law contains lots of uncertainty and the known unknowns and unknown unknowns predominate over what is known, most of the time. | If you want to study the basics of law, where should you start? Don't try memorizing individual laws. That would be a waste of energy, in part because --as you rightly point out-- laws change. There are many introductory books. Law 101, by Jay M. Feinman, is an excellent starting point. The next step --broadly speaking-- consists of reading court decisions (aka court opinions). Opinions released by upper (aka reviewing) courts are available online for free. If you are interested in jurisdictions in the US, Leagle.com is one of many very good resources; EU cases are available here; and so forth. Acquainting yourself with court opinions is quite beneficial. First, court opinions [collaterally] teach how to formulate one's legal positions. Rather than merely being formulaic and a copycat, a litigant is to convey that his legal position is more consistent (compared to the adversary) with the laws and underlying doctrines. His points are easier to get across by adapting his presentation thereof to how courts are used to handle the legal principles involved. Second, court opinions identify the statutes that are relevant to the type of disputes that arise between parties. This is indicative of importance that a statute or procedural rule entails in relation to other laws. Third, court opinions reflect how statutes, rules, and doctrines are interpreted. Oftentimes the way how legislation is worded leads "laypeople" to have misconceptions on the interpretation of laws and rules, when in reality these are construed usually in a much narrower way. Law journals are a good source once you have gained some background in law and are interested in a sort of monograph about a topic that is new to you. But, as explained above, court opinions also serve that purpose (perhaps less scholarly). Having a legal dictionary is always a good idea. Courts in the US oftentimes quote definitions from Black's Law Dictionary for crucial terms which statutory law does not define. What is most applicable to real life? Without knowing whether you are interested in a particular field, it is safe to say that contract law is the most applicable. Entering contracts is part of our everyday life even if laypeople don't notice it when they purchase goods & services, reach an agreement, or engage in a course of conduct which reasonably fosters expectations. And good news is that the principles of contract law are largely similar among modern jurisdictions, including the America (the continent, not just the USA), many member states of the EU, and Asian countries. The Restatement (Second) of Contracts is a very useful formulation of contract law. Courts in the US very often cite the Restatement for premising their decisions on contract disputes. In countries with a civil law system, the principles of contract law are usually formulated in one or multiple sections of the [countries'] Civil Code. Procedural law (aka rules of criminal or civil procedure) is also highly applicable: Large portions thereof apply to all disputes which are brought to court. To a great extent these rules are very similar across the jurisdictions of one same country, but the litigant ought too ensure his compliance with the rules lest he loses the case for a technicality. Lastly, procedural law can be remarkably boring unless the person anticipates he will be involved in litigation. | This is largely a contract law issue, with little to do with intellectual property. Let's take a closer look at Offer and Acceptance of a Contract. An Offer or Acceptance can be made: Orally In writing By conduct First, you offer your client a written contract, with terms and conditions. Your client refused to accept. There is no contract. Then, your client offers you another contract, orally: We still want you to move forward with the project. We will give you $X as deposit, and then you will begin work. After the project is completed, we will deposit another $Y to you. It is irrelevant whether $X and $Y are the same as in the written contract or not. This is a separate contract, and the original terms you proposed does not apply. Did you accept this contract? From Felhouse v. Bindley (1862): Acceptance must be communicated clearly and cannot be imposed due to silence of one of the parties. Since you accepted the deposit and began work, you have accepted the contract by conduct. This is a contract where there is no terms and conditions besides that one sentence mentioned by your client. Furthermore, you intent to carry on this contract (you wish to complete the project and get the money). This contract has benefits to you for Consideration. Would it have made a difference? Suppose that your client's response is: We are sorry, our company has a weird policy about accepting contracts in writing, 30 people have to approve it and it takes 3 months. Would you take a verbal acceptance? We will give you $X as deposit and you will begin work, after work is finished we will give you $Y, as stated in the contract. Then this would be an oral acceptance of the original (written) contract with terms and conditions. But that cannot happen, since the client explicitly refused your offer. An acceptance must be unconditional. Qualification of terms of offer means to destroy the original offer. Counter-offer means to reject the original offer. Can the client use the deposit as evidence that there is a verbal contract? Yes, certainly. But this contract is not the un-signed contract. Read this conversation, again, carefully: We still want you to move forward with the project. We will give you $X as deposit, and then you will begin work. After the project is completed, we will deposit another $Y to you. There is no mention that your proposed terms and conditions apply, is there? Even if the client, after 2 weeks, come back to you and says: Sorry for refusing your offer earlier. After due consideration, we think your company's proposal is best. We would like to move forward with you. It will be $X for the deposit, and $Y after completion. All your proposed terms and conditions apply. Deal? This time your client is making an Offer. If you accept, it will be a new contract, not the same one you offered to the client earlier. About the money. This is really a case by case situation. Depending on how much the entire project is completed and the nature of the project, results can be different. A deposit is necessary to begin work. The deposit secures the client's intention to carry on the project. The final payment is make after work is finished satisfactorily. Isn't the current situation exactly what a deposit is for? | Numbering is for the sake of clarity, and is not intrinsically required. If you refer to a section, you need a way to say which section you mean, and a vague description like "up there where I talked about copying" is insufficient. You can refer to a section by a title, if you need to refer to sections within the contract, as long as your titles match what you refer to them as (and you don't have two sections called "Your Rights"). | I am not sure what the claim in the textbook means, and have been unable to find any other reference to support or explain it. Headnotes are always “presumptively correct” in the sense that they are professionally authored, so you can generally presume them to be correct, unless they conflict with the full text of the decision. But I’m not aware of any statute or case law that creates a formal presumption in relation to headnotes. Perhaps you could write to the author and ask if that’s what she means. What is unique about England and Wales, as the origin of the common law and the associated tradition of law reporting, is the preeminence of the Incorporated Council of Law Reporting. The ICLR was established in 1865 and publishes all official law reports in England and Wales. Arguably unlike the official or authorised reports of other common law jurisdictions, the ICLR’s reports are considered to be more authoritative even than the judgment published by the court itself. The ICLR’s website explains: However important the case, the transcript of a judgment does not have the same value, as a record of the decision contained in it, as a full text law report. Where, therefore, a law report is available, particularly where the case has been reported in one of the official series, The Law Reports, published by ICLR, it must be cited and referred to in that version in preference for any other: see Practice Direction (Citation of Authorities) [2012] 1 WLR 780 … the combination of a summary report and a transcript does not enjoy the same status as a full text law report where one is available, for reasons which will become clear once one appreciates the amount of careful editorial work that goes into preparing the full report. In other jurisdictions, the official law reports are treated with less reverence, although it is still normal for courts to require them to be cited in preference to primary sources such as slip opinions. Nonetheless, further down the page the ICLR makes clear that the full text of the judgment takes primacy over the headnote, just as in other jurisdictions: Although the headnote adds value to the report of a judgment, it is the judgment itself which sets the precedent and binds subsequent decision-makers. Nevertheless, a good headnote is a work of meticulous legal draftsmanship and can withstand the closest of textual scrutiny. Accuracy is all. Make the proposition too general, and the principle appears either so watered down as to be meaningless or, more dangerously, misleadingly wide in its application. Draw it too narrowly, and it fails to express the principle on which the court based its decision. At its best, a headnote is a precious distillation – the single malt of legal learning. | In the german language, in jurisprudence, we have lots of latin terms / expressions, because latin expressions seem to be more exact. Is this also the case in the english speaking world? You are correct that there are many Latin expressions in the English speaking legal world. You are not fully correct regarding the reasons that this is the case, and in some instances this means that you can't trust a Latin legal term to mean the same thing in common law jurisprudence as it does in civil law jurisprudence. In England, Latin made its way into legal use because the clergy and literate Norman French elites spoke Latin for affairs of consequence and state and used it for that purpose in much the same manner that elites in India today use the English language. But, they were using Latin to document their own rulings and decisions in the feudal records which were largely based on tradition, common sense and local custom and practice. (This was also true in Scandinavia until the Scandinavians adopted legal codes based upon continental models in the 18th and 19th centuries or so.) In Germany (and most of continental Europe) the situation was different. In the Roman Empire, the judicial role was delegated mostly to people we would call arbitrators these days, who issued written decisions in Latin after cases were litigated before them by people we would call lawyers today, and these were collected, edited, arranged by subject and published in books that are the equivalent of the legal digests or case reporters today. When the Roman Empire collapsed, these fell into disuse, but monks continued to copy sets of them of future generations through the dark ages. Then, sometimes around the late Middle Ages/early Rennaisance it became fashionable for lords and officials making judicial determinations to reference these digests in their decision making on something of a grass roots basis until it became accepted practice after a few centuries for there to be formally trained jurists who were familiar with the digests and it was expected that these trained professionals relying on these historic Roman legal sources were the only legitimate way to make legal decisions. This process is called the "reception" of Roman law in early modern Europe and was the foundation of the law in most continental European countries that ultimately became civil law countries until it was so jumbled and arcane that Napoleon streamlined it by having an expert prepare his civil code with the idea that it could be used to get fair and accurate legal resources without lawyers or legally trained jurists. Germany and Spain then copied this efforts in their respective national styles. Germany strove to be more detailed and more exactly accurate in codifying the Roman law substrate using "legal science" intended for use by legal professionals, and has a longer more detailed civil code with more major categories and more rigorously consistent used of defined terms throughout their codes as a result. Spain was, if anything, a bit more loose in drafting than the French, but made substantive adjustments to reflect local ideas on the correct rule of law. These codes, in turn, were used as models by almost everyone else in Europe. To make a long story short then, Germany and other continental European countries use Latin legal terms not just because Latin was a common language of the clergy and literate elite, but because they were borrowing Roman legal terminology directly from Roman legal sources that had been preserved by monks in through the Middle Ages and then restored to active use in the early modern period, unlike the English, who were mostly coining Latin legal terms for non-Roman legal concepts or borrowing Roman legal terminology in an uninformed and frequently not technically accurate way compared to the way they were used by the trained legal scholars familiar with Roman legal sources on the continent. |
Can everyone name Soldier F now that an MP has named him in Parliament? Recently, the MP for Foyle, the Hon Colum Eastwood, named "Soldier F", who is facing charges of murder over Bloody Sunday in 1972. A judge in Northern Ireland had made an anonymity direction in the case, but Mr Eastwood used parliamentary privilege to circumvent this and publicly name Soldier F. As the linked article shows, the media have resolutely refused to repeat Mr Eastwood's identification, but it is not clear to me if this is for legal or ethical reasons. Can anyone in the UK (especially anyone in Northern Ireland) now name Soldier F in the context of directly quoting Mr Eastwood's remark? Is the anonymity direction now a dead letter, or does anyone using the name in the context of quoting Mr Eastwood and are they thus protected as a consequence of parliamentary privilege? Or does the order still apply to everywhere outside of Parliament, and one could be arrested for contempt of court for using the name in public? | At common law, parliamentary privilege does not extend to the republication of words spoken in Parliament: Stockdale v Hansard (1839) 112 ER 1160. To overcome this, Parliament passed the Parliamentary Papers Act 1840, which provides absolute privilege for a report published “by or under the authority of either House of Parliament” (ie. Hansard). Section 3 of the Act provides qualified privilege for publishing an “extract or abstract” of Hansard. In relation to statements made under parliamentary privilege in breach of a court order, the Committee on Super-Injunctions wrote in its report on Super-Injunctions, Anonymised Injunctions and Open Justice (May 2011): In order to obtain the benefit of the immunity from civil or criminal proceedings under section 3, the individual must prove, before a jury, that the relevant material was published in good faith and without malice. It is an open question whether publication of any extract from or abstract of Hansard which had the effect of frustrating a court order and was deliberately intended to do so would be held to be in good faith and without malice … Where media reports go beyond, or fall outside, the ambit of protection provided by the 1840 Act, it is the common law which determines whether there is any protection from contempt proceedings for breach of court orders. Mr Woolf noted that while Wason v Walter (1868) 4 QB 73 established a limited common law protection in defamation proceedings for honest, fair and accurate reporting of Parliamentary proceedings, there was ‘no reported case which authoritatively decides the extent of protection against proceedings for contempt available in respect of fair and accurate reports of proceedings of Parliament’ … It therefore appears to be an open question whether, and to what extent, the common law protects media reporting of Parliamentary proceedings where such reporting appears to breach the terms of a court order and is not covered by the protection provided by the 1840 Act. What is clear is that unfettered reporting of Parliamentary proceedings (in apparent breach of court orders) has not been established as a clear right. In its report on Parliamentary Privilege (June 2013), the Joint Committee on Parliamentary Privilege said that the Parliamentary Papers Act would generally not apply to the contemporary media, and that the defence of qualified privilege was limited to defamation actions: An “abstract” was defined by the 1999 Joint Committee as a “summary or epitome”. Thus media reports of what goes on in Parliament, even if they draw on documents published by order of the House, such as Hansard, do not generally enjoy the (qualified) protection afforded by section 3 of the 1840 Act—a point confirmed by Sarah McColl, Solicitor Advocate in the BBC Editorial Legal Department, in her oral evidence on behalf of the Media Lawyers Association … Outside the field of defamation, it does not appear that media reports of parliamentary proceedings (as opposed to extracts or abstracts) enjoy legal protection. This arises most obviously in the case of breaches of court injunctions … The Joint Committee recommended that the law should be reformed: On balance, we do not support extending absolute privilege to all reports, including media sketches and summaries, of proceedings in Parliament … we consider that the existing protection of qualified privilege—that is, that all fair and accurate reports are protected, unless they can be proved by the claimant to have been made maliciously—already provides a robust defence of press freedom … At the same time, we acknowledge that the media need clarity and certainty. The Parliamentary Papers Act 1840 provides qualified protection for all “extracts and abstracts” of parliamentary publications (including broadcasts), but as we have already said these terms do not appear to cover media reports or editorial comment … We endorse the recommendation of the 1999 Joint Committee that [the] Parliamentary Papers Act 1840 should be replaced by modern statutory provisions … We recommend that these new provisions should … establish that qualified privilege applies to all fair and accurate reports of parliamentary proceedings in the same way as to abstracts and extracts of those proceedings; provide that in all court proceedings in respect of such fair and accurate reports, extracts or abstracts, the claimant or prosecution shall be required to prove that the defendant acted maliciously … However, it appears that Parliament has not taken up the Joint Committee’s recommendation, and the extent of any common law protection remains an open question. Accordingly, the article linked in the question states that “The BBC is not naming Soldier F for legal reasons.” | This question and many related ones are analysed in detail by Eugene Volokh, in a long paper that is worth reading in its entirety if you are interested in the topic. The [Supreme] Court has offered “speech integral to [illegal] conduct” as one of the “well-defined and narrowly limited classes of speech” excluded from First Amendment protection. But if this exception is indeed to be well defined and narrowly limited, courts need to explain and cabin its scope. This Article — the first, to my knowledge, to consider the exception in depth — aims to help with that task. On threats, he says: Companies are generally barred from firing employees for voting for a union, and unions are generally barred from retaliating against employees for their speech. The Court therefore concluded that speech that threatens unlawful retaliation is itself unlawful. On blackmail, he says: [...] telling black citizens “stop shopping at white-owned stores or we’ll publicize your behavior to your neighbors and fellow church members” is similarly constitutionally protected. On the other hand, “vote for this civil rights bill or I’ll disclose that you cheated on your wife” is likely unprotected. In general the line where the First Amendment protections end and criminal speech begins is surprisingly vague. General advice to avoid self-incrimination by not answering questions from the police is clearly protected. Threatening a witness with violence is clearly not. In between are shades of grey. | The law does not say. It is up to the judgment of the judge to determine what constitutes "Le fait de provoquer directement à des actes de terrorisme ou de faire publiquement l'apologie de ces actes". I would not have predicted that the act constituted "faire publiquement l'apologie", but if that expression can reasonably construed as meaning "indicating approval of", then I understand the conclusion. The law does not mention SSIDs, that simply falls under the penumbra of "publicly approving of terrorism", and there isn't a specific list of forbidden acts. Analogously, Holocaust denial is against the law in France, and there is not a specific list of things that you can't say, there is a general rule from which specifics can be inferred. Publicly saying "Free Kurdistan!" could be construed as supporting PKK and thus approving of terrorism, but that would be quite a stretch. Using the SSID Pkk21, on the other hand, could be a problem. | There is actually more than one law covering whistleblowers, so the other answer is only partially correct. According to the NYT, the case in question here is also covered by the Inspector General Act of 1978 Do whistle-blowers have a right to remain anonymous? Only in a limited way. Another part of the Inspector General Act says that agency watchdogs “shall not, after receipt of a complaint or information from an employee, disclose the identity of the employee without the consent of the employee, unless the inspector general determines such disclosure is unavoidable.” In line with that law, the inspector general for the intelligence community, Michael Atkinson, did not include the whistle-blower’s name in his report to the acting director of national intelligence, Joseph Maguire. Mr. Maguire testified last week that he did not know the name of the person [...] But the legal prohibition on disclosing the official’s name applies only to Mr. Atkinson. It does not bar Mr. Trump and his allies from trying to identify him or disclosing his name if they figure it out. (It would be illegal under the Intelligence Identities Protection Act for any official to disclose his name if he is a covert agent, but no one has suggested that he is.) The same information can be found in an OIG FAQ Q: Will OIG reveal employee identities or the fact that they cooperated? A: OIG investigators will respect the confidentiality of Department employees as provided by law. Section 7 of the Inspector General Act states that “[t]he Inspector General shall not, after receipt of a complaint or information from an employee, disclose the identity of the employee without the consent of the employee, unless the Inspector General determines such disclosure is unavoidable during the course of the investigation.” During the course of some investigations, it may be unavoidable that the identities of individuals involved will become known. However, OIG strives to protect the confidentiality of Department employees who provide OIG with information. In addition, employees should be aware that reprisal against any employee for cooperating with OIG is forbidden by the Inspector General Act and DAO 207-10, Section 4. Further, OIG takes whistleblower protection very seriously and, along with the U.S. Office of Special Counsel, investigates alleged reprisals against employees for making protected disclosures to OIG. So Paul's spokesperson seems to be correct. | england-and-wales Initially, one should comply with the officer's instructions as he has the power under statutory Stop & Search powers to detain someone for the purpose of the search (discussed here). Failure to do so may be an offence. If, subsequently, one considers the search and detention was unlawful, the first port of call is to lodge a complaint with the relevant police force who - depending on the circumstances - may escalate the complaint to the Independent Office for Police Conduct IOPC. You can complain directly to the police/other organisation (see ‘Who can I complain about?’ below for a list of the other organisations) or via the IOPC. If you complain via the IOPC, your complaint will be sent direct to the organisation involved. They will assess your complaint and contact you about how it will be handled. The IOPC will not be involved with this initial assessment of your complaint. If the complaint is found to be valid, then any offence committed by not complying with the office would (in all probability) be overturned on appeal. As well as any compensation awarded by the court, the Chief Constable may consider making an ex gratia payment (mentioned here). Note that there is no obligation to do anything if the interaction falls within the Stop & Account provisions. | Yes Deciding a case on a basis the parties have not raised is a denial of natural justice (or procedural fairness) and invalid. The reason is very simple, the parties have not had the opportunity to produce evidence or make submissions about C or D that might have changed the judge’s mind about them. Notwithstanding, to successfully appeal, the aggrieved party must show there were arguments that could have been raised which could reasonably have altered the outcome. That said, it’s the judge’s courtroom and they can say “That’s interesting but what about C and D?” and then the parties can make submissions about them. They do have to be circumspect and make sure that they do not become one party’s advocate - one party might be well aware of C and D and don’t want them brought up because they damage their case and they are hoping the other party misses that - and then the bloody judge come charging in with his bloody duty to wider interests of justice. Non-judicial decision makers like arbitrators, adjudicators and other tribunals need to be even more circumspect because they generally don’t have a duty to anyone but the parties. Unlike in civil law systems, the role of the judge is to decide the dispute between the parties as a referee, not to determine some objective”truth” as an investigator. To keep things simple: if the plaintiff contends that the light was red and the defendant contends the light was green then, assuming there is no evidence opening the possibility, it is not open to the judge to find that the light was amber. Similarly, if the parties agree that red means go and green means stop, it is not the judge's role to tell the parties they are wrong (I'm sure questions would be asked but if the parties are adamant ...): since there is no dispute over this issue the judge would be wrong to agitate one. Now, a judge is free to apply the law that was argued as a whole - if arguments centred on Section 14 of the Relevant Act 1875 but Section 15 is applicable and germane the judge is not wrong for applying Section 15. However, they are on shakier ground if the bring in Other Slightly Relevant Act 1956. | The earliest mention of the principle that I can find is in Rolston v Secretary of State for Northern Ireland [1975] NI 195, where the matter of compensation for the widow of a police officer murdered in Northern Ireland arose. I am sure there are earlier cases that express the same principle in different terms, however. It is a broad principle that applies to most areas of civil law, and I cannot find an original source for it. I imagine that it is simply "received wisdom" that has been repeated long enough to become a cornerstone of the law of restitution in England and Wales. There is currently no statutory basis for the principle so I cannot cite any relevant Acts of Parliament either. | I've seen prohibito used in a few places, but never by any source that I'd use as a model for my writing. As I understand it, the Latin names for the other writs were adopted in medieval times, when Latin was much more heavily used in the English courts, while the writ of prohibition developed centuries later. In that case, I think it would have been natural to simply give it a standard English name. |
What are perfected grounds of appeal? According to Julian Assange's anti extradition campaign, in late August his lawyers had filed their "perfected grounds of appeal". Just what does it mean for the grounds to be perfected? | Julian Assange's current litigation is an appeal to the High Court, pursuant to section 108 of the Extradition Act 2003, against the Home Secretary's extradition order of 17 June 2022. The procedure for extradition appeals to the High Court is set out in section 3 of Part 50 of the Criminal Procedure Rules 2020. Rule 50.20 requires Assange to apply for leave to appeal by filing an appeal notice which identifies his grounds of appeal. There is also a requirement to file skeleton arguments under Practice Direction 50E in Division XI of the Criminal Practice Directions 2015. Rule 50.30 provides for an extradition appeal to be determined in appropriate cases by a divisional court. That is what happened in the last appeal, United States of America v Assange [2021] EWHC 3313 (Admin). The "specialist court within the King's Bench Division of the High Court" which determined that case is known as the Administrative Court. The Administrative Court is quite similar to the Court of Appeal and its senior members sit on both courts. The last appeal was determined by the Lord Chief Justice and a Lord Justice of Appeal. So, it would not be surprising if the orders made for case management of this Administrative Court proceeding adopted the practice of the Court of Appeal. The practice of "perfection of grounds of appeal" is described in section A8 of the Court of Appeal Criminal Division Guide to Commencing Proceedings (July 2021). In that jurisdiction, perfected grounds "consist of a fresh document which supersedes the original grounds of appeal and contains inter alia references by page number and letter (or paragraph number) to all relevant passages in the transcript," which may not be available when the grounds are first prepared. Practice Direction 50A emphasises the importance of expedition in extradition appeals, especially "where the issues are such that further information from the requesting authority or state is needed." It is likely that the case management orders made in Assange's appeal allowed him to file some initial grounds of appeal and later "perfect" them, possibly after receiving documents that were not available when the grounds were first lodged, or a grant of leave to appeal. This accords with the normal use of the verb "to perfect" in legal contexts (eg. the perfection of a judgment or security interest), which the Oxford English Dictionary defines as: To complete or finish successfully; to carry through, accomplish. In early use also: † to bring to fulfilment or full development (obsolete). Now chiefly Law and Finance. | Your question is essentially this: consider a defamation lawsuit in which A alleges that B falsely stated that A did X (and it is not contested that B made the statement) also consider that B has done X in the past is it of any relevance to A's defamation suit that B has done X in the past canada Evidence must be relevant to a live, material issue In order for evidence to be admissible it must be "relevant to a live, material issue in the case" (this is from a dissent, but there is no disagreement about this point). Stage 1: Did B make a defamatory statement about A that was published - no relevance to this issue Defamation is prima facie proven if B's statement was published and if it tended to lower the reputation of A. The fact that B has done X in the past is irrelevant to this aspect of the analysis, especially when the defendant is not alleging that they did not say "A did X." Stage 2: Defences - there is a very narrow path for relevance on this issue Once defamation is prima facie proven, the burden flips to the defendant to establish a defence. Of all the possible defences, the only one in which I could see B having done X in the past being relevant is the defence of fair comment: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts? (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice. The fact the B has done X in the past could be relevant to this defence if B were to use that familiarity with the activity X as part of the commentary on why they believe that A has done X. It could also be relevant (not on its own, but along with much more context) for an allegation of malice on B's part. Conclusion: Evidence that B did X in the past would likely not be relevant I see it very unlikely that B having done X in the past would be relevant. It would likely be treated as a collateral issue, unless B's credibility somehow became absolutely central to the litigation and if the judge was convinced that such acts relate to credibility. On the facts as described, and even for a fair comment defence, I don't see that being the case. | The order of operations is important I assume that plaintiff filed for a Protective Order. To get this granted, the plaintiff has to allege some kind of wrongdoing and evidence of that. If the defendant responds, then the plaintiff can amend their filing. Then the defendant once more can respond to the allegations. If the plaintiff wants to amend the filing once more, they need to ask the court to be allowed to do so, and that opens the door for the defendant to answer once more. That's all history for the case presented: The court apparently found the evidence lacking and dismissed the application for a PO. Plaintiff can only file for reconsideration or appeal but not bring in new evidence at this point. Dismissed Cases are not automatically evidence A case that did not establish its burden of proof and was dismissed - especially with prejudice - has not established that the evidence in it is good. You have to ask each item to be admitted separately and re-establish that it is good evidence. A bulk filing "I want to bring this case as evidence" is generally denied unless you prevailed in that case. A dismissed case is one you didn't prevail in. Get a Lawyer! It seems like you are in serious need of legal counsel to clear up the situation. Contact a lawyer for at least a free consultation if you even have a case. | You can be extradited from Country A to Country B even if you are a citizen of neither. What matters is whether B can convince A to do it, which is typically on the basis of a treaty between them as well as provisions of both country's domestic criminal law. If you committed a crime in B, then fled to A, your nationality is relevant to the extent that: A might not extradite its own citizens, if you are a citizen of A A might have an agreement with C, if you are a citizen of C, that C should have the chance to proscute you instead of B. (This is the Petruhhin doctrine in the case where A and C are EU countries and B is not.) But you do not have to be a national of B in order for it to have jurisdiction over you in B's domestic criminal law - just as if you were still in B, they could arrest you in the normal way. They are thus entitled to request A's authorities to arrest you in A, and transfer you to B. If your alleged crime was not in B, then their claim over you has to be on the basis that their domestic criminal law allows prosecution extraterritorially. This was the case when B was Spain, A was the United Kingdom, and the criminal was former Chilean leader Augusto Pinochet; while his status as a former head of state was relevant, as was whether the crimes were extraterritorial offences in the UK as well, his lack of Spanish nationality was not. A more topical example is B being the United States, A the United Kingdom, and the arrestee being Julian Assange, an Australian who is alleged to have committed various crimes under U.S. law (while not necessarily having been present in the U.S. at the time). While all extradition relationships are different, a common thread of the criminal law in general is that what matters is the circumstances at the time of the alleged acts. Retroactively making you a citizen of B may not be satisfactory to A, to the extent that A's criminal law disallows making anything illegal retroactively. The supposed nationality grant by B might trigger provision's of A's domestic extradition law concerning requirements of due process, lack of political interference, and so on, and block the action. But equally, renouncing your citizenship of B does not extinguish B's claim over you for acts you did while you were a citizen of B. This is again a feature of typical criminal law. | This article may be helpful. The development of a distinct, lower standard of proof for civil cases comes after the US came into existence, thus the expressions were developed independently, after the doctrine itself started to develop. Various expressions are used, often with different implications that could lead to fixing a specific expression to a definite doctrine, for instance "greater weight of the evidence", "more likely than not" as well as the contender expressions. Earliest expressions of the principle in question include Edward Wynne Eunomus (1768) Wherever a verdict is given, the Plaintiff at least must give evidence to maintain his Declaration: where evidence is produced on both sides, the verdict is given for the Plaintiff or Defendant, according to the superior weight of evidence. Richards Wooddeson's 1777 formulation is In causes concerning civil rights and property, that side must prevail, in favor of which probability preponderates: but the (a) humanity of our law never esteems the turn of the balance sufficient to convict a man of any, especially a capital, crime. For it requires a very strong and irrefragable presumption of guilt to justify the infliction of the severer human punishments In Delaware (1801) in the case State v. Crocker, 2 Del. Cas. 150, the doctrine is "named", preponderance of evidence: In civil cases a preponderance of evidence is sufficient for you to convict; in criminal, you should have proof You can find "balance of probabilities" in a UK case Head v. Head (1823). The origin of the construction "balance of probabilities" is philosophy and theology, whereas "preponderance of evidence" is a more-distinctly legal expression. Since the underlying ideas were developed separately in the US and England, it is not surprising that different expressions were attached to the doctrine. | The legal standard for an indictment is "probable cause". This is the same as the standard for an arrest, an arrest warrant, a wiretap, or a search warrant. A conviction, of course, is subject to the much more demanding, proof beyond a reasonable doubt standard. Access logs along could provide probable cause for an indictment, even though they would probably not, standing alone, constitute sufficient evidence to convict. Also, the existence of the search warrant shows that a judge already found that there was probable cause that a crime was committed before the access logs were even reviewed, so there has to be some other evidence beyond the access logs out there and the access logs are corroborating the probable cause that was already found to exist against someone. It bears noting that federal grand juries almost without fail indict, although in some local state court systems, especially in rural areas (mostly in the Southeast U.S. since the West rarely uses grand juries and the North has higher standards of professionalism, especially in urban areas), where the quality of the law enforcement and prosecutorial work is lower, near automatic indictments are not a reality. | You'd have to specify the cases you want. All court transcripts are a matter of public record, though a copy may cost you a fee from the court clerk's office to recieve. It should be pointed out that not all cases got to an evidentiary stage to actually evaluate on the record any evidence. A vast majority were decided on pre-evidentiary rules such as standing or laches (timeliness) and not all cases that were able induced evidence debunked the evidence. Any appellent case would also not induce evidence as all appeals cases are strictly matter of law rather than matter of fact (evidence), so those cases would be asking a higher court to double check non-evidentiary decisions. The fact that the party that brought the suit does not have standing to bring the suit OR that the party that brought the suit brought it too late for the courts to proceed on the matter does not debunk evidence that the fraud happened in the eyes of the law... it simply means the questions of fact were never addressed at all | Statutes of limitations (hereinafter "SOL") vary from jurisdiction-to-jurisdiction. If it is only one-year in New York (I've not confirmed this) that would not be surprising. SOLs exist for all civil matters and nearly all criminal matters. I'd just like to point out that your question is not really limited to defamation or to the time frame for which the specific SOL runs for libel/slander ... at least as I've read it. It seems you are asking the broader question pertaining to what the philosophical or practical purpose(s) for SOLs in general are, as well as what effect these limits can have on the ability of a would-be claimant/plaintiff to get relief through the courts. So, to answer whether a person who believes they've been defamed can still bring a cause of action after the SOL has passed: the short answer is no. But, that is only the short answer. SOL is an affirmative defense, meaning that it can only be asserted if it is pled in the answer to a complaint. So, if John Doe feels he's been defamed by a libelous statement in the Times, and he files suit 4 years after the statement was made (and the SOL is 1 year), the court will still accept the filing of the complaint and Times must still be served. You do not lose the right to file your claim, when the SOL has passed, which is a very common misconception of the law. And, Times must still file an Answer to avoid defaulting. However, in that answer Times (no doubt by and through qualified counsel) will most likely assert a variety of affirmative defenses pro forma, which will include the passage of SOL (the claim is stale). If, in fact, the SOL has passed and the affirmative defense is pled, the next thing the Times will do is file a motion to dismiss. The judge will view the complaint in a light most favorable to Doe, the plaintiff, which will lay out all the facts (including when the libelous statement was published). If the cause of action accrued (this just means when the injury was sustained) and the claim was not filed prior to the expiration of the SOL, Doe's case will be dismissed. If the Times does not assert SOL though, it is deemed to have been waived for that and any subsequent related proceedings. There are ways to toll (extend) the statute of limitations. There is a discovery rule (this does not mean Doe didn't read it until after the SOL, even though he was able to). It means that the SOL can be tolled in cases where one could not have discovered the tort occurred. In these instances, the SOL doesn't begin to run until the discovery was either made or should have been made. This is most typically seen in medical malpractice cases (e.g., a surgeon leaves a sponge or instrument in your abdomen, and after years of failed treatments for IBS your doc sends you for an x-ray and an MRI and it's discovered) or in asbestos cases (you don't know you breathed it until you have asbestosis) – those types of scenarios. In cases like that, the SOL begins to run when you find out the tort occurred. This has also been successful in recovered memory cases where childhood sexual abuse occurred but was suppressed. Incapacitation is another way the SOL can be tolled. So, in Doe's libel case, the SOL can be tolled if he is incapacitated (in a coma and didn't wake for 4 years, in a mental hospital in a break from reality for 5 years) – in such circumstances you can still file a claim and have it survive a motion to dismiss based on SOL once you are rehabilitated. Also, Absence due to military service is reason to toll in some jurisdictions. Lastly, (at least the last one I can recall) is that minors can often toll the SOL however long the statute is (say 1 year) after they turn 18. As for why there are SOLs: That is more public policy than anything else. It is one of the oldest rules of law known to modern man, dating back all the way to early Greek and Roman law. Statutes of limitations are a fundamental part of EU and US law, as well as most other modern legal systems. They function to prevent fraudulent and stale claims from arising after all evidence has been lost or after the facts have become dubious and unclear due to the progression of time, which can lead to lost or uncertain memories, death of witnesses (for each side), or disappearance/inability to locate witnesses. The policies behind SOLs are also for judicial economy and to protect defendants from having a never-ending potential suit looming over them. Often, the seriousness of the crime or the tort, or some element of it, dictates the time frame of the SOL. It is a means to ensure that plaintiffs pursue their claims with reasonable diligence: I.e., if it matters to you, file it. Also, as I touched on above, time disadvantages defendants. Plaintiffs are the "injured" party, so they tend to retain evidence much longer than a defendant, who might not even realize he has done wrong – especially in civil matters. So, in a libel case, the whole basis of the claim is the irreparable damage to your reputation. If more than a year has passed and you didn't know about it, one could assume the damage never rose to the level of having sufficed to make a valid claim in the first place. That is why they run fast in those cases. They run fast in medical malpractice claims too, but this is a result of tort reform – the public policy that litigation against doctors/hospitals causes increased health care costs for everyone. So, policy suggests it's best for society to dispose of these claims quickly (not so much if you're the plaintiff). Whereas most regular negligence claims can have SOLs as long as six years in some jurisdictions where I have practiced. So there are clearly policy determinations going into these legislative acts. The Golden Rule of Law that I tell all of my clients is this: If you think you have a claim, talk to a lawyer right away, because if you don't you can lose the right to pursue relief, much, much quicker than one may ever imagine! I know this is a long answer, but I get asked this (type) of question all the time. Plaintiffs feel the SOLs run too fast, while Defendants cannot believe they can still be on the hook! |
(Your unlawful act) "will be prosecuted to the maximum extent possible under the law." For real? Several software products make statements about possible prosecution, for example Microsoft Office: Unauthorized reproduction or distribution of this program, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. How close is such a statement corresponding with the reality? They claim that certain actions will be prosecuted (instead of may be prosecuted), what appears to imply they will surely start the prosecution. ...to the maximum extent possible under the law... – this appears to imply that the actions taken on their side will reach to the maximum extent they are able to achieve. Based on the language used, both points seems to sound almost like obligations from company side. Isn't this language misleading? For example, for proven single piracy act on single $400 software package, will the company surely start prosecution and will work on reaching "maximum extent possible under the law"? Given the damage, such an extensive action could appear cost-unreasonable for the copyright owner (except of possible publicity effect) and my question is why such a strong wording is used? Is it realistic? Or is it a part of law traditions? Or what else has to be noted there? | How close is such a statement corresponding with the reality? Legally, such language is a meaningless statement of future intent that at best makes clear that the person making the statement isn't waiving any of their legal rights. Certainly, no infringer would have standing to sue if they failed to do so. Whether a joint venture member or foreign reseller could sue the company for failing to enforce its IP rights is another question that presents itself very differently and depends upon much more than what the warning labels state, such as the language in the joint partnership or reseller's agreement with the copyright owner. Also, in criminal copyright violation cases, even if the copyright owner asks for the maximum possible consequences, the U.S. Justice Department is under no obligation whatsoever to go along with that request. Likewise, a judge has no obligation to impose the maximum penalty allowed by law following a criminal conviction, even if the copyright owner and the U.S. Justice Department both request a maximum sentence for someone who pleas guilty or is convicted of the offense following a trial. In practice, something like 98% of federal criminal cases, and a similar percentage of federal civil cases, result in agreed resolutions which result in less severe penalties than the maximum penalties allowed by law. This happens as a result of a mutual agreement to resolve the case with a guilty plea, or a settlement agreement in a civil case, or both. Also, in practice, none of these companies, nor the federal government's prosecutors, have the resources to press anything but the most clear and serious copyright violation cases, and cases that are valuable for P.R. purposes. Anything else is essentially a random lottery from myriad cases that could have been brought in order to counteract the argument (both political and legal) that their copyright protections are empty and completely unenforced is a large part of the cases to which the statutes would make it seem that they apply. Also, in a case brought by a joint venture owner or reseller for failure to enforce a copyright which causes the partner damages, presumably in some sort of breach of contract or breach of fiduciary duty action, there would be no way to prove damages from all of the non-enforcement, since enforcing every known infringement would not be cost effective and would reduce the net profits of everyone involved. | Presumably by "is illegal" you mean "violates copyright law". Copyright infringement is simply "copying / distributing without authorization", which refers to the original work and not some other work. The act of originally writing a book is not "copying" (likewise "taking a picture", etc), so the act of writing a book using pirated software is also not copying and not infringement. Nevertheless, the scope of remedies for the original infringement is not limited to just the cost of the infringed work. Under 17 USC 504(b), The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. This is sufficiently open-ended that profits from the sale of an original work created using infringed software could be attributable to the infringement. | The first question is whose law you are concerned with, since in principle you might have violated copyright law in any country, and might be sued under the laws of multiple countries. The US has a concept of "fair use" which is notoriously difficult to apply. When you are sued in the US, you can defend against the allegation by arguing certain things: telegraphically, this includes purpose and character of use, nature of the work, substantiality in relation to the whole, and effect on market. Plus there is a 5th factor to be considered, transformativeness. The court then weighs these factors to decide if the use is "fair". By reading existing case law on the topic (conveniently available from the US Copyright office) you might develop a fact-based opinion of the risk: you would be vastly better off hiring an attorney who specializes in US copyright law to do an analysis for you. Do not hire a programmer to give you legal advice (do not hire an attorney to debug code). You would "fail" on the test of substantiality in that you are copying a highly substantial portion of the original work(s). You would "win" on nature of use (research especially non-profit and commentary are the underlying purposes that drive fair use law). It's not clear how you would fare w.r.t. nature of the work, which is intended to distinguish the extremes "news report" and "literature and artistic work" where copying news is at the fair use end of the spectrum. It is not clear how you would fare on "effect on market", but probably not so badly: are you avoiding some licensing fee? Coupled with the tranformativeness consideration, you are most likely having no effect on the market, since the product that you will distribute is not the original work, but a scientific conclusion about the work. Germany has different laws, and this article would be relevant if you cared about Germany. There was a change in the law that expanded the analog of fair use pertaining to research use. That law allows 15 percent of a work to be reproduced, distributed and made available to the public for the purpose of non-commercial scientific research. That, b.t.w., does not refer to what you are planning to do (unless you also publish quotes); for personal scientific research you may reproduce up to 75 percent. Since this is a new law only a year old, you could become part of the cutting edge in testing the limits of the law. So the standard disclaimer applies: ask your attorney. But note section 60d of the law which legalized data mining, and is squarely on point: (1) In order to enable the automatic analysis of large numbers of works (source material) for scientific research, it shall be permissible to reproduce the source material, including automatically and systematically, in order to create, particularly by means of normalisation, structuring and categorisation, a corpus which can be analysed and to make the corpus available to the public for a specifically limited circle of persons for their joint scientific research, as well as to individual third persons for the purpose of monitoring the quality of scientific research. In such cases, the user may only pursue non-commercial purposes. (2) If database works are used pursuant to subsection (1), this shall constitute customary use in accordance with section 55a, first sentence. If insubstantial parts of databases are used pursuant to subsection (1), this shall be deemed consistent with the normal utilisation of the database and with the legitimate interests of the producer of the database within the meaning of section 87b (1), second sentence, and section 87e. (3) Once the research work has been completed, the corpus and the reproductions of the source material shall be deleted; they may no longer be made available to the public. It shall, however, be permissible to transmit the corpus and the reproductions of the source material to the institutions referred to in sections 60e and 60f for the purpose of long-term storage. | Downloading commercial software without permission would be infringement, unless an exception to copyright (probably fair use in the US) applied. That the maker and copyright owner no longer supports or sells this software would not change that. The first-pass fair use analysis in the question is reasonable, and a court might find this to be fair use, but it is far from assured that it would be so found. US statutory damages could be as high as $150,000 or as low as $750 if Microsoft sued and won. However, as you say, there is no current or plausible future market for Windows 95, and there are lots of copies on CDs and other media floating around, easily available if anyone wanted a copy. I suspect that Microsoft would not choose to take such a matter to court, even if they became aware of it. If Microsoft does not choose to sue, there is no enforcement action by anyone. Of course they could choose to sue, it is their right to sue. | Yes, but ... It doesn’t protect you. Let’s imagine you put such a clause in and a person in Europe used your service notwithstanding: they’ve broken the contract but you’ve broken the law. You get the fine and they get ... nothing. Because you can’t contract outside the law you never had a valid contract with them so you have no basis to sue. Further, because you are purporting to something you can’t legally do, you are probably on the wrong side of misleading and deceptive consumer protection law: which is another fine. If you can ensure that you don’t breach local law - like by not operating over the internet - then you can choose not to deal with e.g. Europeans. If you can’t guarantee that, then you’re stuffed. | If it was illegal to make the entire copy, it is illegal to copy half the file. See also, e.g., Basic Books v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) In response to the question of whether moving it to someone else's servers makes a difference: it is the act of copying, not the possession of the copy, that is the violation of copyright law. As for the copy a service assists someone to make, contributory liability would be the issue. You don't need to be the person making the copies to be contributing to the infringement--material contribution to the copying process and knowledge of infringement run a serious risk of creating contributory liability. If seriously considering such a service as a business model someone would need to consult a copyright expert with technical knowledge or pay counsel with technical knowledge for a good bit of time to do some research. There are major civil and criminal consequences if the industry or the government decides to go after a service doing this, so legal expenses would be a significant and important cost of doing business that would significantly increase barriers to entry. In addition, the service would likely be in violation of its agreement with storage vendors, who would want to minimize their legal exposure and might well discontinue the service when they learned what it was doing. | In Wisconsin, right after the perjury law, they have a law prohibiting "false swearing". It applies if a person: Makes or subscribes 2 inconsistent statements under oath or affirmation or upon signing a statement pursuant to s. 887.015 in regard to any matter respecting which an oath, affirmation, or statement is, in each case, authorized or required by law or required by any public officer or governmental agency as a prerequisite to such officer or agency taking some official action, under circumstances which demonstrate that the witness or subscriber knew at least one of the statements to be false when made. The period of limitations within which prosecution may be commenced runs from the time of the first statement. So even if they couldn't actually get you for perjury, they could get you for violating this law. Perjury and false swearing are both class H felonies, so you can expect the same punishment. I am going to guess that the existence of this law suggests that it was needed to cover what would otherwise be a loophole in the perjury law, but I can't say for sure. | Each case is decided on its own facts I know you want a clear answer to where the bright line between illegality and legality but there simply isn’t one. The reason you feel there is a “legal grey area” is because there’s a legal gray area. The way the common law works is that there are some acts and omissions that are clearly crimes/torts/breach of contract, some that aren’t and some that live in that grey area. When someone brings a case in the grey, the court will make a ruling that will apply to similar facts and we get a little light on the subject. Then the legislature changes the law and it all goes dark again. Each of your bullet points is simply too vague and encompasses so many fact patterns that it’s impossible to say. For example, “Using a fake name/birthday”: do the ToS prohibit this? is there an intent to mislead or deceive? are there laws that prohibit this? is a benefit being received dishonesty? etc. If you come with a specific, detailed fact pattern there might be case law that is specifically relevant that will allow an answer with a high chance of being right. However, nuances matter and no two fact patterns are exactly the same and the difference might be enough to distinguish your case from the precedent. Or there might not be a relevant precedent because no one has sued/prosecuted on this fact pattern before. Then we are in virgin territory and even experts are only making educated guesses until the judge (and the appeals court(s)) hand down their decision. These are the most interesting cases to watch but the most terrifying to be part of. If you need to ask the question”where’s the legal line on this?”, there’s a decent chance you have a foot on each side. |
Native Amerian Hospitals on Tribal Land and EEOC antidiscrimination laws My question is regarding Native American Hospitals located on tribal reservation land (Navajo Nation in AZ). The hospital is not IHS run, it is designation self-determination. However, it receives federal funding, participates in Medicaid/Medicare and is subject to CMS rules/audits. Would this type of hospital also be subject to EEOC antidiscrimination laws? They have allowed religious exemptions to vaccines until 9/23/22. They have also referred multiple times to title VII. However, they required employees to provide letters from pastors to verify sincerely held religious beliefs with regard to requesting exemption. On the other hand, they also claim that because they are a sovereign nation, they don't have to follow the Federal laws. HR has now stated that they have updated their policy and eliminated such religious exemptions per "CMS requirements." However, according to the latest information on the CMS site regarding the IFC (latest dated 4/2022), employers are not required to eliminate religious exemptions. In fact, that memo states that "The COVID-19 vaccination requirements and policies and procedures required by this IFC must comply with applicable federal non-discrimination and civil rights laws and protections, including providing reasonable accommodations to individuals who are legally entitled to them because they have a disability or sincerely held religious beliefs, practices, or observations that conflict with the vaccination requirement. More information on federal non-discrimination and civil rights laws is available here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. Would the hospital be subject to EEOC rules? Can the hospital legally refuse to consider religious exemptions or could this be considered religious discrimination? | 42 USC 2000e–2 prohibits various discriminatory employment practices, for example (a) It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin But furthermore, (i) Nothing contained in this subchapter shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation. In Morton v. Mancari, 417 U.S. 535 the Supreme Court discussed the rationale of Indian Preference policies which predated anti-discrimination legislation, concluding that Congress did not intent to repeal those laws, concluding that "As long as the special treatment of Indians can be tied rationally to the fulfillment of Congress' unique obligation toward Indians, such legislative judgments will not be disturbed", and considered certain kinds of discrimination to be "an employment criterion designed to further the cause of Indian self-government". See also EEOC v. Navajo Health Foundation-Sage Memorial Hospital, where an employment discrimination suit against a Navajo hospital was dismissed on this basis. Also note the word "employer" relevant to discrimination laws is given a special definition in 42 USC 2000e(b): The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute... To the extent that the situation you are asking about relates to employment discrimination, it would seem that the hospital is indeed exempt from 42 USC 20002-2(a). However, relevant details are missing. | united-states Since "lying" is not a clearly-defined legal concept, we need to look at a specific kind of (non)statement. Some lies are plainly illegal, for instance saying in the context of a sale that "this column is made of pressure-treated lumber" when in fact it is make of sand and Elmer's glue is fraud. A receptionist being told to say "Mr. Smith is at a conference in New York" when he is actually drunk in Chicago is a legal lie. Now the question is, who can refuse to tell this lie (without suffering employment consequences), and on what grounds? Generally, in the US you can be ordered to tell such a legal lie as part of your employment duties. If I refuse, I can be fired. If you refuse, you can request a reasonable accommodation under Title VII of the Civil Rights Act of 1964, since you proffer that your religion requires you to tell the truth / forbids you from telling a falsehood. If you make a claim for a religious accommodation, then the issue becomes whether there is a reasonable alternative. Such an accommodation might be that you instead say "Mr. Smith is not available"; or perhaps someone else who does not have a religious objection will be forced to act as receptionist for the day. This is specifically about religion. "I don't want to" or any similar idea does not provide protection against being fired. However, bear in mind that there is no official list of approved religions and their beliefs which the courts will refer to in determining whether your refusal was protected. If you claim "As a Pastafarian, I can't lie", the courts will not accept the premise that declaring yourself to be Pastafarian (a parody "religion") is valid. The available governmental resources on the fine line between general moral code and religious beliefs are quite sparse. | There are exemptions, and "justifications", in 24 CFR 100. The exemption is 100.10: (c) Nothing in this part, other than the prohibitions against discriminatory advertising, applies to: (1) The sale or rental of any single family house by an owner, provided the following conditions are met: (i) The owner does not own or have any interest in more than three single family houses at any one time. (ii) The house is sold or rented without the use of a real estate broker, agent or salesperson or the facilities of any person in the business of selling or renting dwellings. So such a restriction could be allowed if e.g. you live in the house and rent only a few rooms, or a single family home marketed and managed in the right way. There is also an exemption for religious organizations and private clubs allowing rental to members only. 100.500 lays the groundwork for disparate impact hot water. It says: (a) A practice has a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin. So only renting to students in a particular seminary would most likely have a disparate impact. There is, however, the possibility of justifying the policy, following 100.500: (b) (1) A legally sufficient justification exists where the challenged practice: (i) Is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent, with respect to claims brought under 42 U.S.C. 3612, or defendant, with respect to claims brought under 42 U.S.C. 3613 or 3614; and (ii) Those interests could not be served by another practice that has a less discriminatory effect. (2) A legally sufficient justification must be supported by evidence and may not be hypothetical or speculative. The burdens of proof for establishing each of the two elements of a legally sufficient justification are set forth in paragraphs (c)(2) and (c)(3) of this section. So let's say that the offended party has made the case that the practice will have a discriminatory effect, then the accused can set forth the aforementioned justification: (c)(2) Once the charging party or plaintiff satisfies the burden of proof set forth in paragraph (c)(1) of this section, the respondent or defendant has the burden of proving that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent or defendant. (c3)(3) If the respondent or defendant satisfies the burden of proof set forth in paragraph (c)(2) of this section, the charging party or plaintiff may still prevail upon proving that the substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect. The crux of the matter is having a "substantial, legitimate nondiscriminatory interest", i.e. why would you want to rent to only seminary students. | It is not legal to give false responses on such a declaration. The point of anti-discrimination laws is that they say when it is legal vs. not legal to discriminate against an employee, and Alex is expected to have faith in the legal system to protect his legal rights. Dissatisfaction with the outcome of the law may be understandable, but still does not legally justify falsifying information given to an employer. In certain cases (look for the fine print and mentions of "penalty of perjury") you can be fined and imprisoned for lying. More commonly, your employment can be terminated when you are discovered. You may also be held liable for consequences of such lies. Your employer's health insurance contract might require truthful and accurate reporting of medical facts and a lie about your condition could result in termination of coverage. | Others have mentioned Title IX, the federal law that generally prohibits sex discrimination at federally funded educational institutions, 20 US 1681 et seq. However, there is specific permission for single-sex housing in 20 USC 1686: Notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes. As to your "in this day and age", this particular section of the law has not been amended since it was first passed in 1972. If you think it should be, you can certainly write to your members of Congress and tell them so. However, you say you attend a "Christian" college. Religious schools get an even broader exemption from Title IX, as Michael Seifert also mentioned. 20 USC 1681 (a) (3): This section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization; So even if 20 USC 1686 were repealed, if your college determined that mixed-gender housing was "inconsistent with its religious tenets", they would probably be allowed to continue having single-gender housing anyway. | The first thing to note is that your question is kind of the wrong way around. US states are sovereign and generally have the ability to make any kind of laws they want, unless they violate some specific tenet of federal law or the US Constitution. You suggest, for instance, that arguments which are "culturally founded" have no place in the law, but that's just your opinion, and there isn't generally anything preventing a state from making law based on such things, should its elected legislature see fit to do so. (Indeed, one could argue that nearly all laws are in some sense "culturally founded", since they are based on some notion of what kind of behavior is or is not appropriate, and those tend to be culturally based.) So legally speaking, the states aren't, by default, obligated to give any sort of justification for the laws they made. The burden of proof is on the other side. Someone seeking to overturn those laws would have to convince a court that the laws violated some specific provision of the Constitution (or another superior law). If they couldn't convince a court of this, the law would stand. From what I have read, before the US Supreme Court's 2015 legalization of same-sex marriage in Obergefell v. Hodges, the previous precedent was set in 1971 by the Minnesota Supreme Court in Baker v. Nelson. The decision itself is quite short and is worthwhile to read. Quoting Wikipedia's summary, the plaintiffs claimed that Minnesota's restriction of marriage to opposite-sex couples violated several provisions of the US Constitution: First Amendment (freedom of speech and of association), Eighth Amendment (cruel and unusual punishment), Ninth Amendment (unenumerated right to privacy), and Fourteenth Amendment (fundamental right to marry under the Due Process Clause and sex discrimination contrary to the Equal Protection Clause). The Minnesota court determined that none of the plaintiffs' objections were valid. Again, I'll refer you to the decision for the details, but the court mainly focused on their Fourteenth Amendment arguments (the others may have been addressed by the trial court, whose opinion I can't find online). They wrote: The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. There is no irrational or invidious discrimination. They specifically rejected any analogy to bans on interracial marriage, which had been held unconstitutional in Loving v. Virginia: But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex. Baker appealed to the US Supreme Court, but his appeal was dismissed "for want of a substantial federal question," without any further explanation. (Nobody quite seems to understand what they meant by that, but here is an essay discussing the situation in a little more depth.) The effect of the dismissal was that the Minnesota court's decision became binding precedent upon the whole nation - laws against same-sex marriage didn't violate those provisions of the Constitution. And that was how matters stood for 44 years until Obergefell. (Of course, there was nothing to stop individual states from deciding to allow same-sex marriage, and some in fact did so in the meantime.) You have suggested that laws against same-sex marriage were religiously motivated. This might suggest an argument that they would violate the Establishment Clause of the First Amendment. The plaintiffs in Baker didn't raise that point, so it wasn't considered in the Minnesota court's opinion. I don't know whether any other courts have considered it; no such argument was mentioned in the opinion in Obergefell. | Businesses are not required to do what the card says, they are required to do what the card-holder says, to the extend that what the card holder says relates to giving or denying consent to be vaccinated. Since they don't vaccinate people who are unconscious, consent will always be directly obtained from the patient and the card has absolutely no effect. Also, control subjects are selected at random and the subject does not know what group they are in. Possession of such a card therefore has zero scientific effect. | The ADA continues to apply, and an employer cannot simply withdraw an accommodation on a whim. You have established a medical need for an accommodation, and your employer must offer an accommodation if a rewasonable one is available. The EEOC page giving guidelines on COVID says (in section K.1) The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below. These principles apply if an employee gets the vaccine in the community or from the employer. In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. Section k.6 further says: An employee with a disability who does not get vaccinated for COVID-19 because of a disability must let the employer know that he or she needs an exemption from the requirement or a change at work, known as a reasonable accommodation. To request an accommodation, an individual does not need to mention the ADA or use the phrase “reasonable accommodation.” ... Employers and employees typically engage in a flexible, interactive process to identify workplace accommodation options that do not impose an undue hardship (significant difficulty or expense) on the employer. This process may include determining whether it is necessary to obtain supporting medical documentation about the employee’s disability. ... The ADA requires that employers offer an available accommodation if one exists that does not pose an undue hardship, meaning a significant difficulty or expense. See 29 C.F.R. 1630.2(p). Employers are advised to consider all the options before denying an accommodation request. It is hard to see how having an employee get frequent COVID tests imposes an "undue hardship" on the employer, as it should impose little or no difficulty or expense on the employer. It seems unlikely that an employer who has accepted such testing as a reasonable accommodation would change its position and seek to deny that accommodation. Even if it did, any such employer still has a legal obligation to consider what would constitute a reasonable accommodation, and to inform the employee what it would accept as a reasonable accommodation before undertaking to terminate employment. If the employer insists that a vaccination is absolutely essential and no alternative will be tolerated (highly unlikely, even hospitals are not taking that position) it must offer the employee a chance to comply or to challenge the decision. Until the employer indicates that the accommodation of regular testing will no longer be accepted, there should be no reason to take significant medical risks to meet an issue that has not in fact arisen. |
How are damages calculated if replacement requires purchase of unnecessary parts? I own a sports car and was recently rear-ended by someone who has accepted full liability. My insurance is trying to price out the repair cost of my car and assures me I will not be out of pocket anything. However, there is one wrinkle. I have a ground effects kit on my car (front air dam, side skirts, rear bumper cover) that cost around $1200 for the full set. At the time of purchase the rear bumper cover could be purchased individually for around $600. However, during COVID the manufacturer went out of business. I've found someone still selling remaining inventory of these kits, but only as the full kit for $1200. There is also a manufacturer of far lesser quality (different material, fitment issues, etc) selling a similar component for $250. So the cost of the part damaged is $600, but the only way to correctly 'repair' the damage is to buy a full kit for $1200. In this sort of situation how are damages calculated? Am I owed the $600 replacement cost for the component, or am I owed the $1200 because that's what I'm actually out to do the repair correctly? Or do I need to take the $250 component that insurance wants me to accept? | General the measure of property damages in an automobile accident lawsuit in the United States is the minimum amount of money necessary to restore the vehicle to its pre-accident state, and/or the diminution of fair market value of the vehicle due to the accident that repairs can't fully remedy in a reasonable fashion. Beyond that very general statement, the cases get decided on a case by case basis after consideration of all of the relevant facts related to damages. There are legitimate arguments either way regarding what is reasonably necessary to repair the vehicle to its pre-accident state in this situation. Generally speaking, if there is a lawsuit, neither side will get their attorney fees in the United States, so they both have to decide how much they are willing to fight over a modest dollar amount dispute. A $950 disagreement would be eaten up in two to four hours of lawyer time, so that colors the analysis. To some extent it ends up being a game of chicken - who is most credibly going to continue to fight knowing that taking a legal battle to the full extent it could be taken would be mutually destructive. | Warranty is company policy. It could be considered part of the contract of sale, but it would still be what the company stated it - at time of purchase - to be. Unless the warranty lists accidental damage as being covered, it looks like the company are following their policy and fulfilling the contract. If you were looking for legal redress since accidental damage resulted from using the product as intended, you'd have more chance of success looking at unsatisfactory quality or the product being unsuitable for the intended purpose under Part 1 chapter 2 sections 9 and 10 of the Consumer Rights Act 2015. It's worth sticking to objective details (for example that the port broke, and that you had used the device as intended). The company are not assuming you broke it (anyone or anything could have caused the accidental damage), and they are not refusing a warranty repair as it appears that accidental damage is not covered by their warranty policy, so this is not one. | Your personal liability depends on your state law regarding the family car doctrine, so the answer there is "maybe" (Texas is not a state with that doctrine, so simple ownership of the car does not confer liability). You would be liable if your supervision of the child was negligent, which means approximately that you knew or should have known that she was a bad driver and would cause damage. Still, the insurance company is suppose to indemnify you (plural) against such loses, as long as they are legally required to do so. That would include many considerations, such as whether the driver was covered under the policy, whether the car was being used contrary to the terms of the policy (being used commercially), and so on. The insurance company is entitled to make a reasonable determination of whether they are responsible for the loss (and if so, to what extent). If they actually decline to cover the loss, you would need to sue them to make them comply with the terms of the policy (and your lawyer would give you a detailed explanation of why they are not liable, in case they aren't). The plaintiff works with his insurance company to recover his insured losses, and with his lawyer to recover any uninsured losses. His insurance company works with your insurance company, up to a point, and then the lawyers get involved. Your daughter does not work with his insurance company, and your insurance company probably has said something along the line "only talk to us". The insurance that a driver typically has may cover some of their own medical costs, but does not provide a payment for "pain and suffering": that is an uninsured loss. It is not generally required that drivers carry insurance to cover their own medical expenses – it is required that they insure against damages, in general, suffered by other parties (if the defendant is at fault). So there is probably nothing for the plaintiff to work out with his insurance company. In Texas, if the defendant is entirely at fault, defendant will be liable for 100% of plaintiff's damages. If defendant is 90% at fault, defendant will be liable for 90% of plaintiff's damages. If defendant is 49% at fault, defendant is not liable. Defendant can, in any event, also sue for damages, so if defendant is 49% at fault, defendant can recover 49% of her damages. The insurance companies might be able to talk it out and reach a clear resolution of the matter, but it could be more in their interest to throw the dice and work it out in court. One can always sue at the very start, and drop the suit if it becomes advantageous. | Let's say one of us borrows the other one's car (with permission) and has an accident. Whose coverage is responsible at that point to satisfy the legally mandated insurance coverage? I assume that's only coverage against damage to others (which should go under liability insurance?) but if I'm wrong please correct me. There are different types of insurance that may be required: liability insurance - pays damage to others (usually including your own passengers) which you are responsible for. This is legally required almost everywhere (both in the USA, where this depends on the state, and elsewhere). Rules vary on the required minimum amount, and the exact coverage (e.g. whether lost wages are covered in case of injury). uninsured motorist coverage - pays damages you or others suffered, which are the responsibility of another driver who is not insured. This is mandatory in some states of the USA. In some other countries, these damages are covered by a public insurance or trust (such as the Verkehrsopferhilfe in Germany). personal injury protection - pays your own medical costs, no matter who is at fault. Required in some states of the USA. Is the lender's insurance supposed to cover it? This depends on the insurance policy, but in almost all cases the policy is for the vehicle (and often has to be, under the laws requiring insurance). So if yes, if you lend your car to someone else, your insurance will cover them. Note, however, that some insurance policies restrict your right to lend your car - read the fine print! There is one situation where your own policy may be relevant: If the damages exceed the limit of the vehicle's insurance policy, your own policy may pay the rest - again, this will depend on the policy. If so, wouldn't this not make sense? Insurance companies look at your driving history (& risk) when they offer you a plan, and if the borrower has a poor history, you've increased the company's risk without their knowledge, right? It would seem to open insurance rates to abuse. Yes, exactly. That is why many (if not most) insurance policies place limits on lending your car. You may only be allowed to lend it to people over 21 years of age, or only to people who you have registered as car users with the insurance company. Is the borrower's insurance supposed to cover it? If so, wouldn't this not make sense? Insurance companies charge you differently based on what and how many vehicles you want covered, so wouldn't borrowing someone's Lamborghini suddenly open your insurance company to a massive risk without their knowledge again? No, the borrower's insurance does not usually apply. Making the borrower's insurance apply would be problematic because the risk is based on the vehicle (type), too. Also, the borrower may not have insurance (e.g. may not own a car). In particular, enforcing the mandatory liability insurance is easier in practice if it is per vehicle, because you can check the insurance at vehicle registration (which practically all countries already require). If the liability insurance were per driver, it would be difficult to prevent a person w/o insurance to borrow a car (as in your example). Finally, sometimes after an accident there is a dispute about who was driving the car (especially with hit-and-run accidents), but there is usually clear evidence (collision damage) what vehicle was involved. If insurance applies to the vehicle, a dispute over who was driving will not interfere with the victim's restitution.Thanks to supercat for pointing this out. | This is a context where you need to lawyer up. There are two issues, his share of the costs, and his permission to construct in part on his property. You mother has the same rights, so she likewise can refuse to sign off on his scheme (the lawyers negotiate a resolution). Assuming both parties are insured and (to make it more complex) have different insurance companies, the companies limit how much they will contribute for their part of the damage. Normally, you find a contractor who will do it for a given price, let's say $10,000, and the parties split the cost. Both parties have an interest in the choice of contractor because of cost issues, and quality of product and service (though the insurance company cares about the cost). If one of the parties is a contractor, they too can legitimately submit a bid, and then the parties can decide which is the best bid. It is not fraud if a contractor, who is an insured, submits a bid and makes a profit on the job. It would be fraud if that party withheld material facts from an insurance company. In the context of massive disaster insurance claims, the insurance companies may not perform a rigorous investigation (e.g. may not ask for multiple bids). It would then be a material fact that one of the insureds stood to profit from this arrangement, so the insurance companies would likely wish to see evidence that the costs were not unreasonably inflated. If the neighbors bid is in line with industry standard (and the insurance companies know who the contractor is), there is nothing fishy about the arrangement. This assumes that both parties are being cooperative with each other. When that is not the case, lawyers are good at getting cooperation (not letting the other party push their client around). | Maybe, Hence the Lawsuits In the absence of clear statute law these all circle around tort law. For the scooter companies, trespass to chattels, and for the affected landowners (who hire the removalists) trespass to land and nuisance seem applicable. In essence, I can’t take your stuff (trespass to chattels) but you can’t leave your stuff on my property (trespass to land) or impeding access to it (nuisance). If you do, I am entitled to the reasonable costs of dealing with it. Note that, as owner, you remain responsible for you stuff even if you rented it to someone else. Both sides are pushing hard into unexplored areas of law so we await the judgement with interest. Then we’ll know. | The correct term for this insurance is personal liability insurance - it is neither compulsory nor common in common law jurisdictions. However, some aspects of it may be bundled with other insurances like homeowners, landlords and contents insurance. Liability for damage in common law flows either from a breach of contract or a tort. Of course, if you intentionally cause harm you have crossed the line from civil liability to criminality and no insurance will indemnify you. For your specific examples: [I]f, say, a candle falls over and I burn my flat? If your lease prohibited you from having open flames then this would be a clear breach of contract and you would have to pay for the damage to the flat (and your own property, of course). If your lease was silent on this, then you would be liable if you were negligent and each party would bear their own losses if you weren't (i.e. it was a pure "accident"). What if a flower pot falls from my windowsill and accidentally kills someone? The passerby has no action under contract as they don't have one. They can sue you, or the landlord, or the body corporate (or all three) for negligence - the landlord's and/or body corporate's insurance would respond and if it included a waiver of subrogation (most do), the insurer could not sue any of the other parties for their losses. What if my trolley bumps into an old lady at the supermarket and I break her hip? What if I walk on my friend's glasses and break them? You have no contract with either of these people so they cannot sue you under one. If they can prove negligence then you have to pay for the damage. If it is, instead a pure "accident" then they bear the cost. However, for the old lady, she is way more likely to sue the supermarket as they will have insurance. It is not as useful in the UK as it is in France due to the need for the plaintiff to prove a breach of contract or negligence. In the UK, you are not responsible for accidents you cause - only accidents you cause negligently. | If I may paraphrase the scenario: The customer has a contract with the insurer The customer is contemplating undergoing a certain procedure and is unsure if it is covered under the contract The customer calls the insurer to ask this specific question The insurer says "yes" The customer undergoes the procedure The insurer refuses to pay on the ground that it is not covered under the contract. Let's put aside issues of evidence and what can be proved and assume these facts are not in dispute. There is no question that the contract has been renegotiated; it hasn't. This avoids the necessity of considering if the insurer's employee has the authority to do this or it the customer can rely that they do even if they don't. There are two possibilities: The procedure is covered and the insurer must pay under contract The procedure isn't covered and the insurer must pay under the tort of negligent misstatement. The insurer is vicariously liable for the actions of its employee. The insurer owes a duty of care to a customer who asks such a question to answer it correctly. It is foreseeable that the customer would act on the insurer's advice and incur costs that they may have avoided if the correct advice had been given. Nothing is ever certain in the law but this is as close as you can get. |
how to fair use another company's logo in personal blogs for review or tutorial purpose? Here is my initial question about adding creator information on some "artwork" that also contains other companies' logos. How to properly add creator information when the art work is done with other companies' logo? Short summary: How can we properly add creator information when the artwork is done with other companies' logos? We just treat all those pictures which have other companies' logos and text as creative "artwork" (maybe a better word)? Qne answer talks about fair use, How can we add the copyright information about this picture if we use it on my blogs/tutorials? I would like to add following information into this picture, Creater: mysite.com logo copyright: google.com using the fair use method. | Fair use does not apply to Trademark Fair Use is only available for copyright material. Trademarks are solely for determining the source of goods or services and not subject to Fair Use. Trademark allows Nominative Use Nominative use is naming the mark. It does not allow to use the mark itself. A flashlight for a Gameboy may say "For GameBoy(TM)", akin to the NAKI Action Light: A replacement oil filter may say "Fitting for Nissan Almera Tino (v10) 2000-2006 115 PS Diesel", or rather, they usually specify the exact OEM numbers and car models, like in the following excerpt: NEITHER may use the Nintendo, Gameboy, Nissan or Almera picture marks for the advertising. Do note, that NAKI didn't cover up the marks on their model Game Boy, which might or might not be a problem. | The "Standard Youtube License" or TOS reads You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of YouTube or the respective licensors of the Content. That stipulates no "free usage" and as such, you cannot use a screenshot ("Content") without permission or license from the copyright owner anywhere in your own work or on a platform such as Wikipedia that requires permissions from the copyright owner. You are legally OK with (preferably written) approval and license from the creator for use of a screenshot on Wikipedia, because such an written agreement will satisfy Wikipedia's requirement of owner approval for the use of another creator's work on Wikipedia and gives you written permission and license to use the work on Wikipedia. Simply contact the copyright owner and ask for permission. If you do not have the owner's permission and still use a screenshot, and are confronted with copyright infringement by the owner or Wikipedia, your use of a screenshot may fall under Fair use. The important qualifier is may. You being able to prevail with a Fair use defense - worst case, if taken to court, or at very least, Wikipedia taking down the screenshot under a DMCA request - is not guaranteed, because a judge would make that decision, based on the evidence of the usage and their determination if, in fact, a screenshot is Fair use. Fair use (Chapter 1 - Circular 92 | U.S. Copyright Office) stipulates that usage is legally permissible when (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole is not considered to be substantial enough is an infringement of copyright of the whole work. Who determines what is what is "substantial enough"? A court. The court could take into account (4) the effect of the use upon the potential market for or value of the copyrighted work. in determining your usage is Fair use, or damages if the court rules against you. You do risk copyright infringement without clear permission from the copyright owner, and you risk Wikipedia being send a DMCA takedown notice. Whether or not you are the subject of a copyright infringement lawsuit is up to the copyright owner, and if that happens, whether you prevail is up to the court. | The idea for an app is not subject to copyright. Only the artifacts of the app itself (sourcecode, images, texts, sounds, etc.) can be. So if one only copies the idea and creates their own version of all the other assets, then they are not violating copyright. However, in some cases, ideas can be subject to patents. But patents on software are tricky. First of all, only new ideas can be patented. When a supposed new idea was already published before, then that's called "prior art" and you can not patent it. Then getting a patent means a lot of investment in money and time (which is very different from copyright which you get automatically the moment you make something copyright-worthy). So not everything that could theoretically be patented gets patented. And then, many jurisdictions do not recognize software patents at all, and those which do have different limits on what is and is not patentable when it comes to software. This means patents are rarely a concern when copying the app idea of someone else, but not never. And another possible concern is the third pillar of intellectual property: Trademarks. This protects the name of the app. Trademark law oversimplified forbids to create a competing product with a name which might confuse customers. So if you created StevesSuperCoolAppForCoolPeople and I create StevesSuperCoolAppForCoolPeople - Simplified Edition, then I would be violating your trademark, because my product name sounds as if it was your product, when it is in fact an unrelated product with a similar purpose. | One can certainly remove a trademark from an item that one owns, whether it be a car, cell phone, blender, or computer. Using some other firm's mark would not be trademark infringement if one did not try to sell the item. If the logo was complex enough to be protectable by copyright, copying it might be copyright infringement, but for such personal use it might fall under an exception to copyright, depending on the country. In any case a copyright infringement suit in such a case seems unlikely. For a car, registration is generally required, and must accurately specify the make and model. The same is true for insurance coverage, a falsely stated make or model would be fraud. If one were to sell the "rebranded" item, one would have to make the situation clear to any potential buyer, otherwise this might be some form of fraud. | You aren't required to include the attribution on the image, you can include it somewhere else on the page, placing it directly below the image is preferred, but providing it at the end of a post is acceptable. Image Capture: Attributing Creative Commons Materials. CC BY 2.5 Australia. (↑ See what I did there?) For best practices for providing attribution, see the Wiki: Best practices for attribution. | Yes, you can grant any license you want to your larger work. With respect to Creative Commons, they provide guidance: May I apply a CC license to my work if it incorporates material used under fair use or another exception or limitation to copyright? Yes, but it is important to prominently mark any third party material you incorporate into your work so reusers do not think the CC license applies to that material. The CC license only applies to the rights you have in the work. For example, if your CC-licensed slide deck includes a Flickr image you are using pursuant to fair use, make sure to identify that image as not being subject to the CC license. For more information about incorporating work owned by others, see our page about marking third party content. Read more considerations for licensors here. With respect to MIT License for software, I don't think that many of the reasons for fair use apply to using someone else's source code in your project. If you're creating criticism, commentary, news, or educational material, you probably have more than just code. You should choose a more appropriate license for the complete work (like a Creative Commons License). Taking someone's software source code and trying to use it under fair use may also lead to issues when you consider other factors, such as the purpose of the use, the amount included in the larger work, and the effect of value on the copyrighted work. I'm not finding a lot of cases regarding fair use in software. Galoob v. Nintendo found that you can modify copyrighted software for personal use (not relevant to this discussion). Sega v. Accolade found that copying software for reverse engineering was fair use under certain conditions (again, not relevant here). If you are attempting to use anything under fair use, regardless of the license that you apply to your larger work, you do need to ensure that you do not give the impression that each individual piece of that work is also under that licence once extracted. That's why you need to clearly mark which portions are used pursuant to fair use. If those portions are extracted from the larger work, then the original restrictions to use apply. However, someone can use the larger work under the license you grant. I just wanted to add this brief section to be extremely clear. When you are producing a work, you can choose a license for that work. If you are incorporating someone else's work into your own work, there are two possibilities: You obtain the other person's work under a license. You must abide by this license and all of its requirements. Some licenses are viral in nature, which restrict the licenses that you can apply to the larger work. You use the other person's work under fair use. In this case, you need to properly attribute the work and identify that it is not available under the same license as the larger work. Someone that extracts that smaller portion must abide by the copyright of that work. If it's available under a particular license, they can choose to use that license or under fair use if they are able to. Someone using your complete combined work uses your license. | Content posted to the web is usually openly accessible to all (unless protected by a password, paywall, or similar restriction). But that does not mean it is freely copyable by all. Such content is protected by copyright in just the same way as if it had been published in a book of essays by various contributors. Unless the copyright holders (who are likely to be the original authors, but might not be) give permission, or an exception to copyright applies, copying such content would be clear and obvious copyright infringement, and any copyright holder could sue for damages. Permission could be given by publishing the content under a permissive license, such as a CC-BY-SA license, or any of many other available permissive licenses. Or a would-be reuser could find the copyright holders and ask for permission. If the holder cannot be found or identified, or does not respond, then no permission has been granted. In the US the main exception to copyright is fair use. See this answer and other threads with the fair-use tag here for more on fair use. Since the question seems to contemplate using the whole of the posted content, since it might well damage any potential market for that content, and since the use does not seem to be "transformative", nor used for criticism or comment, a finding of fair use for this situation seems unlikely. But Fair use findings are very much fact-driven, and the exact facts do matter. Thus I cannot be at all sure whether a court would find this toi be fair use or not. In other countries there are a variety of exceptions to copyright, and I have not come close to reviewing them all. But none of the ones I know of seem to apply to the situation described in the question. Many are narrower than the US concept of fair use. I fear that without permission, copying this content would be infringement. However, it would not be infringement to create a site that includes a link to the existing content, and a summary or description of that content, along with new content, including comments on the old, with brief quotes to indicate what is being commented on. | No. (Therefore no). Not necessarily. Yes. Is there a fair use for patents? No. "Fair use" is a affirmative defense for copyright infringement. The issue is that patents cover an design, idea or methodology, while copyright covers an "artistic" work. For example, if he were alive and working today, van Gogh would have copyright over his collection of paintings. If he developed a special paintbrush to make his distinctive style, he could patent the design for that brush. There is no obligation to make a patent available, much less at a "fair rate". And there is no obligation for a patent holder to make their patent available (so yes, they can block you directly or indirectly). There are various rationales for this. One is that a patent holder's historical reward for producing a new invention, a furtherance of common knowledge, is that that individual would receive an exclusive monopoly on the manufacture and sale of that invention. Often, this would serve as a way to recoup investment in new development and an incentive to experiment and expand the knowledge base of a country. This arrangement in the modern day is most closely represented by the exclusive license agreement, in which the licensor (in this case the patent holder) agrees to not only give the licensee the legal right to use the patent holder the legal ability to use their patent, but also agrees to limitations in what other people are granted that legal ability, in exchange for compensation. |
Are the Quotations in a Book of Quotations Copyrighted? I have a book of quotations that displays a 1967 copyright. I would like to use some of them in a current work of mine that I intend to publish. Many of the quotations in the 1967 book I can trace back to sources, the copyrights of which have expired. However, there are some I cannot—though the quotes themselves were uttered more than 95 years ago. Also, I am quite certain that their written sources (which I have not located) would have been published more than 95 years ago. QUESTION: Legally, may I extract quotes from the copyrighted 1967 book and incorporate them into my book, which I intend to publish in the United States? | The copyright on the book of quotations protects the collection. That is, it protects the author's choice of which quotations to include, and of what order to list them in. It also covers any division of them into groups or categories, and any added text (intros, comments, and so on) written by the author. It does not protect the quotations themselves. As those are not the original work of the author, s/he can have no copyright in them. Any quotes that are in the public domain (through expiration of copyright, or otherwise) may be used freely. Any others are protected by copyright. However the use of a short quotation is often fair use under US law, or is subject to another exception to copyright elsewhere. But that depends very much on the details of the factual situation. So quotes with expired copyrights are safe to use. Others may well be safe if they are relatively short, and proper attribution is given. | If the author died in 1946 then copyright in his works expired at the end of 2016. The work is in the public domain. The relevant section of the Copyright Designs & Patents Act 1988 extends to the whole of the United Kingdom, but not Crown Dependencies or colonies. You need to be sure that the work is the author's own work. If someone else has contributed then the copyright endures until it expires 70 years after the death of the last of the authors. The same applies to art. If you want to reproduce artwork, say for a cover/sleeve design, that would also have the artist's copyright, which lasts for 70 years after that person's death. The typography of a book has copyright which lasts for 25 years from publication. | This falls within the penumbra of Feist v. Rural Telephone. The principle articulated there is that facts are not subject to copyright protection, but the expression of facts can be. Quoting from the ruling, "no author may copyright his ideas or the facts he narrates...however, it is beyond dispute that compilations of facts are within the subject matter of copyright". The distinction between protected vs. not protected hinges on originality: "The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author". But it is not sufficient that the work is created by the "sweat of the brow" of an author: it must possess at least some minimal degree of creativity. Thus "[t]he writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like". As a concrete example, the ruling states "Census-takers, for example, do not 'create' the population figures that emerge from their efforts; in a sense, they copy these figures from the world around them...Census data therefore do not trigger copyright because these data are not 'original' in the constitutional sense." But, compilations of facts can be protected: Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws An email list requires nothing more than brow-sweat, and even then, not much. A cleverly annotated and arranged email list would involve substantial creativity and would be subject to protection. That does not mean that you didn't sign some agreement that prohibits you from copying or using the list, but it isn't a matter of copyright. | First of all, this is probably a poor idea even if it is legal. Verse, and song lyrics, are notoriously hard to translate well, and make poor examples for language learning, They tend to employ metaphor, allusive language, and idiom heavily, and will in many cases distort the sense of the language for the sake of rhyme, meter, or other auditory effects. But suppose you still want to go ahead. The developer of such an app could use songs old enough to be in the public domain. "The Star-spangled Banner' for example is not protected by copyright. Neither is the French national anthem, the La Marseillaise. Most well-known songs published before 1900 will not be under copyright. But more recent songs will almost surely be protected. The use of a line or two from a song might well be permitted under fair use (in the US) or fair dealing (in those countries that recognize this exception to copyright). Use of the entire lyrics of any given song would be more questionable. The use for educational purposes would tend to favor the applicability of any such exception, but the availability of the whole lyric (or even a major part) might serve as a replacement for the original, and harm the market for the original. No one can ever be sure in advance if a given use will be ruled to be a fair use. That determination depends heavily on the specific facts of each case. It would avoid risk to use songs that are out of copyright, or short sections of songs, if songs are to be used at all. | There is a subtle difference between NSF policy and enforceable obligation. The primary stick that goes with the carrot is being excluded from future funding. Current policy does not generally force material in the public domain, but it is a possibility in "exceptional circumstances". There no doubt is a paper record somewhere in D.C. indicating whether such a codicil was added to any of these grants. NSF generally does not have contracts with individuals, they have contracts with institutions who have relations (typically employer-employee) with individuals, so even if there were a policy requiring works to be put in the public domain, NSF would have to go after the institution, who would have to go after the author. Since that would conflict with longstanding NSF policy on copyright, it is unlikely that they would want to pursue such an approach. The statement that McGraw-Hill Book Company announces that the material, which is copyrighted, will be available for use by authors and publishers on a royalty-free basis on or after April 30, 1970 is not itself a license, it is a suggestion that a license will com into existence. A present-tense declaration "this work is dedicated to the public domain effective April 30, 1970" can be interpreted as a license effective of a date certain. Similarly, "will be available to all publishers for use in English after December 31, 1970, and in translations after December 31, 1975" does not say that it is in the public domain effective of some date. One might say that the copyright statement is simply not well written and the author really intended the books to be in the public domain as of those dates. But without compelling evidence that the book was actually released into the public domain, a court is very unlikely to abrogate a person's property rights. | I can't answer for the Indonesian law specifically. But in general, under most international copyright schemes, a translation is considered a copyrightable work. This means that even if the original work (in this case, the Quran and Hadith) is in the public domain, derivative works based on that public domain work can still be copyrighted by their creators. This includes, for example: A song with lyrics taken from the Quran A play or movie dramatizing stories from the Quran A novel retelling a story from the Quran In all of these cases, the author has built something new, based on the public domain framework. Because they contributed something original, they are entitled to a copyright on their original contribution. They can't stop someone from copying the Quran themselves, but they can stop someone from copying their original work based on the Quran. Most copyright courts--again, I don't know about Indonesia specifically--will treat a translation the same way. A translation is an original work that requires creativity and skill--otherwise Google Translate would work a lot better than it does. Just like a movie based on the Quran, a translation based on the Quran will probably be copyrightable under most, if not all, countries' copyright laws. | We cannot and will not try to answer "what should i do?" questions here. Nothing in the linked page makes me think that the views expressed in the previous question here are any less correct. They certainly have not changed the law on copyright. The linked page is an open forum. Many of the posts o9n that thread express ill-informed and incorrect views of how copyright works, and what it protects. Several google searchs find no trace of the suit described in the thread. Note that in US law no copyright claim may be heard in a small claims court, except for the federal copyright office's small claims tribunal. I am not sure if the same is true in Canada, but it might be that the suit was simply dismissed on such a basis. In any case small claims cases do not establish legal precedents in Canada or the US. Of course it is true that anyone can sue over almost anything, even when there is no valid legal basis for the suit. If the suit had been won by the claimant, or even settled that would be larger grounds for worry. A person seriously worried over publishing a book such as that described in the question might do well to consult a lawyer with relevant expertise. A single consultation plus an opinion letter might not cost very much. But 17 USC 102 (b) is very clear that copyright never protects facts, as are the copyright laws of other countries. Note that reports of the events of sports matches are not protected by copyright, although expressive language and analysis may be. 17 USC 102 (b) reads: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Article 2 paragraph (8) of the Berne Copyright Convention provides that: (8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information. There seems little room for copyright protection of the moves of chess games. | YES, if you can get an image of it, you can use it A work that old is not under copyright protection in any country in the world. Under US law any work published in 1924 or before (as of 2019) is in the public domain. Unpublished works may be protected for up to 120 years after creation under US law. But no work that is over 600 years old has any copyright protection. In any case, merely owning the physical work does not mean owning the copyright. In the case of a work sufficiently recent that it is under copyright, say from the 1970s, the copyright initially belongs to the artist. If the artist sells or gives the painting to a museum (or anyone else), the artist retains the copyright unless that is explicitly included in the deal, in a written agreement. If the artist dies, the copyright is inherited, just as any other property that the artist leaves, as directed by will or law. If a museum owns a painting that is out of copyright, it can restrict access to it and prevent people from photographing or copying it, because it can restrict what people do on its property. But if an exact copy (known as a "slavish copy") gets out, the museum has no copyright in it, because making a slavish copy does not create an original, copyrightable work under US law. See the case of Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) and Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991) The law may be different in non-US countries, but the reasoning of the Bridgeman case has bene followed elsewhere. A "slavish" copy is one that attempts to reproduce the original as exactly as possible, without adding or removing or changing anything. A photo of a painting in a frame on a stand with people standing beside it is not a slavish copy. The images of art one sees in books on art are usually slavish copies. So are the images one sees on museum web sites, as a rule. The term implies that the copyist had no more freedom than a slave in making the copy. At least that is the metaphor. Slavish copies do not get separate copyrights because they are not original works. Photos of 3D works such as sculptures require choice of angle, lighting, etc, sufficient t make them original works -- no two photographers will produce quite the same image of a sculpture. But some courts have ruled that wire-frame models of 3D works of art are slavish copies and not protected by copyright. |
Is a repair technician responsible for the issues he created? A repair technician was hired to repair a microwave (MW), but instead he broke the oven attached to said MW, and then said that he cannot repair either appliance unless I make the back of both appliances accessible by making certain alteration that involve carpentry and possibly electrical work. According to the contract, I am responsible to make the items being repaired accessible. However, I was not appraised that there were any access problems beforehand, and solving those problems is not worth repairing the MW. However now that he broke the oven I have no choice: the same access is necessary to fix the oven. Given the choice between leaving MW dead or paying for the access I would leave the MW dead. Given the choice between leaving both MW and oven dead or paying for the access I have no choice but to pay for the access. Is the technician responsible for reimbursing for the work necessary to create the access? His position is that I would have to pay for the access to repair MW anyway. My point is that if he didn't break the oven I wouldn't do that. In fact, I would be very happy at this point to have the things as they were before he showed up: the dead MW on top of functioning oven. Which one of us is right? If I would sue him to restore the appliances to their pre-attempted-repair condition, would I prevail? | Was the technician negligent? Just because he broke the oven, doesn't mean that he negligently broke the oven. In breaking the oven, he would have to have done something that a reasonable technician would not have done. Even if he was negligent, is the liability for his negligence excluded by the contract you signed when you hired him? And, if so, is such a limitation allowed under local law? In many parts of the USA, the answer is yes. In either circumstance, the technician is liable for nothing. Notwithstanding, assuming the technician is liable, there is little doubt they are liable for the cost of the repair. They are unlikely to be liable for the cost of providing access as, by the contract, you are responsible for providing this. | The correct term for this insurance is personal liability insurance - it is neither compulsory nor common in common law jurisdictions. However, some aspects of it may be bundled with other insurances like homeowners, landlords and contents insurance. Liability for damage in common law flows either from a breach of contract or a tort. Of course, if you intentionally cause harm you have crossed the line from civil liability to criminality and no insurance will indemnify you. For your specific examples: [I]f, say, a candle falls over and I burn my flat? If your lease prohibited you from having open flames then this would be a clear breach of contract and you would have to pay for the damage to the flat (and your own property, of course). If your lease was silent on this, then you would be liable if you were negligent and each party would bear their own losses if you weren't (i.e. it was a pure "accident"). What if a flower pot falls from my windowsill and accidentally kills someone? The passerby has no action under contract as they don't have one. They can sue you, or the landlord, or the body corporate (or all three) for negligence - the landlord's and/or body corporate's insurance would respond and if it included a waiver of subrogation (most do), the insurer could not sue any of the other parties for their losses. What if my trolley bumps into an old lady at the supermarket and I break her hip? What if I walk on my friend's glasses and break them? You have no contract with either of these people so they cannot sue you under one. If they can prove negligence then you have to pay for the damage. If it is, instead a pure "accident" then they bear the cost. However, for the old lady, she is way more likely to sue the supermarket as they will have insurance. It is not as useful in the UK as it is in France due to the need for the plaintiff to prove a breach of contract or negligence. In the UK, you are not responsible for accidents you cause - only accidents you cause negligently. | You could first look for a force majeure clause in the lease which says something about natural disasters and the like. If there is a clause which says e.g. "Landlord will not be held responsible for problems arising from ice storms", that doesn't help you, but maybe it specifies e.g. rent reduction of $2/day for lack of electricity. That doesn't mean he can ignore the law. However, in this situation, a particular reading of the law ("there must be an infallible supply of electricity") imposes an impossible requirement on the landlord, and the courts probably won't require a landlord to do the impossible. It is not clear that your situation violates either the letter or the spirit of the law. Take clause (d): your "heating facilities" presumably conformed to applicable law at the time of installation and have since been maintained, and they are adequate, but they don't work if the grid doesn't supply power (and that is not a matter under the landlord's control). In other words, he provided the "infrastructure", and the problem is on the power company's end. Likewise "electrical lighting with wiring and electrical equipment" -- an ordinary interpretation of that clause is "wires and fixtures", and doesn't include "flow of electrons", which is supplied by your local power company. | Contracts contain an implicit term that obligations will be carried out in a reasonable time While the situation is unusual and we obviously don't have the specific terms of the agreement, it would appear that the vendor agreed to contribute to half the cost of the roof repair and your sister was obliged to contribute the other half and arrange for the roof to be repaired. Implicit in this is that she would do this within a reasonable time. Your sister does not have the right to keep the money in limbo indefinitely. It's open to argument whether a year is a reasonable time or not. Similarly, if your sister is in breach of the agreement, the vendor would probably only be entitled to damages for what they have lost; they would not normally be entitled to terminate the contract. Their damages might be assessed as the difference between what their share costs now compared to what it would have cost a year ago - this may be nothing or a lot depending on how prices have changed - and interest lost on the balance that should have been returned to them. | is there any legal action I can take against the dealership to enforce their compliance with our contractual agreement? Yes, you can sue for breach of contract. You would probably seek an order for specific performance. You could also claim damages but it is difficult to see exactly what damage you have suffered. Is there a reasonable timeline that they must deliver within if a date is not specified in the contract? Yes, where a contract is silent on a date for performance of an obligation they must be carried out in a reasonable time. From the circumstances 4 months is starting to seem unreasonable but they will no doubt argue that it is reasonable- this is something the court would decide. | When Bob buys a thing, it becomes his, and it ceases to be the property of the seller. By "buy", we understand that to mean "pays for and receives physical control of". At that point, Bob is responsible to control of his new property. His ownership of the property is not contingent on him leaving the store. You might assign blame to the shop if they were negligent in some way, for example if they hire a thief to do the exit-check and the door guard takes Bob's property. Obviously, the thief is ultimately liable, but the store might under special circumstances be liable if they indirectly caused his loss. A store does not have an obligation to guarantee that a customer immediately and securely exits the store after making a purchase, so they are not liable for failing to immediately eject him from the store after buying the goods. | Without a jurisdiction, I'll just say that unless the comments made in the reviews and discussions were false, the individual is unlikely to have any claim, particularly given that you've stated that this occurred over the course of a year. However, the individual may be able to argue that they were not given sufficient notice of their performance, for example through performance evaluations, and given the length of time, it likely that one would have occurred. A company may be able to terminate an employee in spite of their overall contributions if they have breached policy - for instance, an otherwise outstanding employee who attracts negative customer reviews based in fact, and who is given ample opportunity and guidance to improve, may cause brand and reputational damage to the company; in this case, it is a commercial decision to retain or terminate the employee. As for what recourse the employee has, if the comments were factual, then it is likely that they will not have any, unless the employer has not adhered to procedural requirements - for instance, in Australia, you are required to provide an employee the opportunity to have a support person present at any meeting which may result in the employee's termination - or the employer broke some other law - for instance, discrimination, bullying or harassment law. Unfortunately, the contributions an employee makes does not necessarily negate the harm they do, and complaints based on an employee's performance are completely valid if factual. | Section 11(6) of the Landlord and Tenant Act 1985 says In a lease in which the lessor’s repairing covenant is implied there is also implied a covenant by the lessee that the lessor, or any person authorised by him in writing, may at reasonable times of the day and on giving 24 hours’ notice in writing to the occupier, enter the premises comprised in the lease for the purpose of viewing their condition and state of repair. There is also an absolute right to enter in an emergency (such as fire). Note that the law does not require tenant permission (a landlord may obviously enter for any reason with permission): the law says when he may do so without permission. If the "viewing" is related to repairs, then you just have to accept it. However, "viewing" usually means "showing prospective new tenants". In that case, there is the 28 day end-of-tenancy entry right which, if you didn't omit anything, is not relevant. In light of the common law right to quiet enjoyment, you have the right to exclude the landlord (or anyone else) absent a statutorily expressed override. Permission can be inferred by word or action under common law, for example if a person appears at the door and you open it wide and step aside, you have implicitly granted permission even if you didn't say "I hereby permit". Explicitly denying permission (even once) eliminates any reasonable possibility of inferring permission. If you had gotten an email saying "we'll come by at 4:30" and you reply "Alrighteo, see you then", that can reasonably be interpreted as permission. If you do not reply, they cannot infer permission (obviously: X sending a message to Y does not entail that Y received or read the message). If a person does not have a right to enter property, then doing so by force constitutes trespass, which is plainly against the law. |
Can you establish a "guilty mind" if the defendant is a victim of blackmail? For many criminal offences, from what I understand, you have to establish 2 aspects: actus reus (the act of crime), and mens rea (the guilty mind). The mens rea can be many things: from as direct as having the intention to commit a crime, to as nuance as being negligent. However, I wonder what if someone is a victim of blackmail and is forced to commit a crime. The victim knew the law, knew that his/her action is in conflict with the law, hence you can argue that they had the intention. Would a criminal case be applicable? | What if someone is a victim of blackmail and is forced to commit a crime? england-and-wales The offence of blackmail is contrary to section1, Theft Act 1968 and is, succinctly, making unwarranted demands with menaces (i.e. threats). Short answer: Although there is an "act", one criterion for actus reus is for it to be a voluntary act which, if the threats are sufficiently menacing, may not be so. Long answer: Depending on what was the blackmailed threat was, it is possible to claim the common law defence of duress. This, as per this article by the Crown Prosecution Service: is a defence at common law to all crimes except murder, attempted murder and treason involving the death of the sovereign see R v Gotts [1992] 2 AC 412. To successfully apply this defence the threats have to be threats of death or grievous bodily harm toward the blackmailed person or a member of their immediate family or to a person for whose safety the they would reasonably regard himself as responsible. (There is case law on this, but I've yet to track down a suitable report or summary.) Also, the threat has to be an effective threat at the time the offence was committed. See R v Hammond [2013] EWCA Crim 2709 where the Court of Appeal ruled that defence of duress was correctly withdrawn from the jury at trial because the evidence could not satisfy the requirement that the threat must be imminent or immediate and have been operating on the actions which constitute the criminal conduct. | Germany If we actually talk about criminal law, your question is answered by §§ 1 and 2 StGB (the German penal code) – official but of course not binding translation: § 1 [No punishment without law] An act may only be punished if criminal liability had been established by law before the act was committed. § 2 [Jurisdiction ratione temporis; lex mitior] (1) The penalty and any ancillary measures shall be determined by the law which is in force at the time of the act. (2) If the penalty is amended during the commission of the act, the law in force at the time the act is completed shall be applied. (3) If the law in force at the time of the completion of the act is amended before judgment, the most lenient law shall be applied. (4) A law intended to be in force only for a determinate time shall be continued to be applied to acts committed while it was in force even after it ceases to be in force, unless otherwise provided by law. (5) Subsections (1) to (4) shall apply mutatis mutandis to confiscation, deprivation and destruction. (6) Unless otherwise provided by law, measures of rehabilitation and incapacitation shall be determined according to the law in force at the time of the decision. (Note that the last section has been voided in part by the Federal Constitutional Court but this is not relevant here.) which is a legal principle given by the German constitution, in particular by Article 103 para. 2: An act may be punished only if it was defined by a law as a criminal offence before the act was committed. To answer your specific questions with the above rules in mind: The law you are sued for is deleted while your process is going In that case you would not be punished. The law you are sued for is deleted before a case is raised against you (what you did was illegal while you did it) Same answer, you would not be punished. The law you are sued for is deleted after your process is finished (could you question the judgement?) You are out of luck. Only if there would be a new decision for an unrelated reason, your punishment would be taken back. There is a new law while your process is going The new law has no relevance at all. There is a new law after your process is finished (could you question the judgement?) Again, no relevance to your case. In another areas of the law the answers to your questions could actually be different but there would be too many cases to consider for a comprehensive answer. | Firstly, there is no jurisdiction in the US where rape is a potentially capital crime, and murder is not - so you are discussing a hypothetical (and rather implausible) jurisdiction. Given your jurisdiction is hypothetical, you can make the law be what you would like. Secondly, duress is accepted in almost all jurisdictions as a defence to a charge of anything except homicide (and some jurisdictions allow it to reduce the severity of a homicide charge). Courts can be reluctant to accept a charge of duress, but a bullet wound would probably be persuasive. I don't know if someone who had just been shot would be physically able to perform though. The precise crimes the perpetrator is guilty of would depend on your specific jurisdiction, but I would expect at least: rape (because they organized it) kidnap shooting the brother | IMO this is a perfectly reasonable question, amenable to a common law analysis: (1) indicates that A has committed the tort of false imprisonment (Restatement of Torts, 2d, §35). Because of 2-4, we can see that A intends to confine B (though vide infra). The confinement is complete (§36), this being a single aisle plane although the same would be true if this was a 5-aisle plane. A has no authority to confine B (§ 41) and is not otherwise privileged, and is accomplished with a physical barrier (§38). B knows that he has been confined (§42). B is "privileged to use any means of self-defense to protect himself against confinement which he is privileged to use to protect himself against a harmful or offensive contact or other bodily harm" (§68). B uses reasonable and minimal force not likely or intended to cause death or serious bodily harm (§63), force which is privileged and thus protects B from being subject to liability (§10). A commits the tort of battery (and a second round of false imprisonment) by taking B down (§13). A is not privileged to use force in self-defense. There is no reasonable belief that B will spontaneously turn on A and use further, unprivileged force – A is simply punishing B for his minimal use of force in self defense, so A's final act is not privileged. There is a related but distinct scenario that adds a material fact, which could change the analysis: C calls out "Excuse me, my flight flight leaves in 15 minutes, may I pass?" whereby A allows C to step ahead of him in the queue. A has no obligation to let anyone jump the queue, but may consent to inconsequential contact which might constitute battery. It is reasonable to conclude that there is apparent consent (§50) given to anyone (§52) when A makes way ("making way" is a publicly-available fact, but "for C to pass" is a private fact of A's state of mind which B cannot reasonably infer: except, B has heard the "May I pass?" request). So the analysis really hinges on how to interpret 2 and 4. Coupled with 6, we (jurors) have a preponderance of evidence showing that A intended to confine B, and battered him when his confinement failed. | There is usually a law that could be stretched to cover such a case. In Washington, RCW 9A.28.030 says A person is guilty of criminal solicitation when, with intent to promote or facilitate the commission of a crime, he or she offers to give or gives money or other thing of value to another to engage in specific conduct which would constitute such crime or which would establish complicity of such other person in its commission or attempted commission had such crime been attempted or committed. The "intent" of the law is to punish people for saying "I'll give you $5000 to kill Smith". But just looking at the text, if you give someone money to encourage them to engage in a specific kind of criminal conduct (e.g. beating people up), then you've violated the law. So, handing a guy $5,000 and saying "I think you should be rewarded for your act" could easily be construed as promoting the future commission of the same or similar crime. | A fundamental requirement of criminal culpability is intent. Based on the description this whole process is happening after a user has already had their phone seized. If a person was not aware of Signal's hidden files to damage the police's data forensics software, they will not have met the criminal intent requirement, either maliciously or under a criminal negligence theory. None of the prongs of CFAA are strict liability statutes (18 U.S. Code § 1030 "Whoever having knowingly accessed a computer..."), so that would not apply here. If we imagine a person that is aware of all the information from Signal about their app intentionally abusing Cellebrite's package and with intention to cause damage downloads Signal's malicious files to their phone, I think it's an open question whether or not they would be liable under the CFAA. Specifically, 18 U.S. Code § 1030(a)(5)(A) (emphasis mine) Whoever knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer; An argument on this could go both ways. On the one hand, the owner of the phone could be found to not have substantially caused the information to be transmitted to a protected computer, as the police were the integral cause for that in executing their warrant. On the other hand, this sort of file could be considered a digital "booby trap," and booby traps are illegal for essentially this reason, that they have a foreseeable effect of causing harm to people who are lawfully inside a building without the owner's permission. In this case, the owner's trap was sprung by law enforcement but still placed by the owner in order to damage them. | It depends, in part, what is meant (and what can be proven) by D's intent: no apparent motivation to harm V Revenge porn, or more accurately, "Disclosing, or threatening to disclose, private sexual photographs and films with intent to cause distress" contrary to section 33 of the Criminal Justice and Courts Act 2015 which states: (1)A person commits an offence if— (a)the person discloses, or threatens to disclose, a private sexual photograph or film in which another individual (“the relevant individual”) appears, (b)by so doing, the person intends to cause distress to that individual, and (c)the disclosure is, or would be, made without the consent of that individual. If there is no intent, then the offence is not committed. If there is intent to cause distressto V, then setion 35 needs to be considered, especially subsection (2): Meaning of “private” and “sexual” (1)The following apply for the purposes of section 33. (2)A photograph or film is “private” if it shows something that is not of a kind ordinarily seen in public. (3)A photograph or film is “sexual” if— (a)it shows all or part of an individual's exposed genitals or pubic area, (b)it shows something that a reasonable person would consider to be sexual because of its nature, or (c)its content, taken as a whole, is such that a reasonable person would consider it to be sexual. I cannot find and caselaw or guidance on the particular issue - i.e. whether or not V's commercial sales of her own images would fall within this definition - and as D's intent is not clear, it would probably be a matter for a jury to decide. | If you wrote for example "I had thoughts about taking the axe from my garage and decapitating my neighbour", and your neighbour read that, he would reasonably be worried and contact the police. I would take that as a death threat, and the death threat is by itself illegal. There would be some range where I could claim that you were making a death threat and making excuses to avoid legal responsibility. You can have all the thoughs you like, you can write them into your private diary where nobody can read them, but as soon as you publish it, it becomes "speech" and some speech is illegal. |
Term for an action leading to something else I am looking (searches so far not successful) for a term that describes this type of scenario: A teen puts a nail against the tire of a parked car as a prank. It leads to an accident that results in a death, and is prosecuted for this. A person pulls a knife on a victim and a passerby fires a gun to help out. The bullet misses, but kills a bystander, and the knife thief is the one charged with murder. In other words, the term for prosecution based on being the one that set in motion a series of events, even if not the one finally responsible, here, neither the driver, nor the shooter. | I would describe those scenarios as hard cases on causation. I don't think there is any single word for an act which gives rise to such a case. Each case relates to an act which was a necessary condition of the injury which occurred. "But for" causation is established. However, the factual scenario is an unusual one where the legal or proximate cause is not obvious. Cases in which the chain of causation is too complex for the defendant to be held liable may be described as failing on the grounds of remoteness or foreseeability. An intervening act which breaks the chain of causation is called a novus actus interveniens. | Theoretically, yes it can, but it is highly fact specific The Court of Appeal explicitly answered this question in the case of R v Bown [2003] EWCA Crim 1989; [2004] 1 Cr App R 13. The Court held per Keene LJ that self-harm was capable of being a good reason within the meaning of subsection 4 of s 139 (para 20). While refraining from any abstract holding as to self-harm (which required a fact-based analysis), Keene LJ held (at para 24–5) that this would depend on evidence as to how and in what manner the bladed article was intended to be used and the time and place relating to said use. The burden of demonstrating this fell on the defence and it would require detailed evidence to be a presentable defence. In the case at bar, the absence of any evidence directly linking the possession of the knife to the tendency of the defendant to self-harm meant that there was nothing which could establish the defence to be put to the jury; a high 'degree of particularity was requisite' (para 27). NB: yes, the name of the defendant in this case is actually 'Bown', not 'Brown'—I know it looks like a typo! | No, a later trial is not allowed A prosecutor can, and often will charge multiple related crimes, and all will be addressed at the same trial. But once a person has been acquitted on a given set of events, the same jurisdiction cannot re-try the same person on what is often called a lesser included offense. Nor on a greater offense implied by the same events. Not even if additional evidence comes to light. However, if an act (or set of acts) is a crime under both state law and Federal law, for example theft by deception (state crime) and wire fraud (federal crime) one jurisdiction may try the person even after ther has been an acquittal in the other. I think the same rule applies if an act is a crime within the jurisdiction of two different states, that both can trey the accused. In many cases prosecutors will choose not to bring the second trial, but they can if they see fit. | This is going to vary by state to some degree. The Wisconsin battery law says in part: (1) Whoever causes bodily harm to another by an act done with intent to cause bodily harm to that person or another without the consent of the person so harmed is guilty of a Class A misdemeanor. (2) Whoever causes substantial bodily harm to another by an act done with intent to cause bodily harm to that person or another is guilty of a Class I felony. And the terms are defined like this: “Bodily harm" means physical pain or injury, illness, or any impairment of physical condition. “Substantial bodily harm" means bodily injury that causes a laceration that requires stitches, staples, or a tissue adhesive; any fracture of a bone; a broken nose; a burn; a petechia; a temporary loss of consciousness, sight or hearing; a concussion; or a loss or fracture of a tooth. So it would seem that one could present a defense of "they consented" if bodily harm was inflicted, but not if great bodily harm was inflicted. If they were being obviously sarcastic, then that's not really consent. | (assuming United States law here, though I'd be surprised if it were significantly different in other jurisdictions with such restrictions) Your friend is incorrect: that would be a new offense, for which Person A could be prosecuted anew. If your friend's logic were correct, once a person is convicted of robbing a store, they'd be free to rob that store without repercussions for life. It's worth noting that the conviction isn't relevant: the prohibition of double jeopardy in the United States prevents even multiple prosecutions (except, in some cases, for separate state and federal prosecutions or foreign prosecutions). | That sounds a lot like the German Antragsdelikt (literally "crime by request"). That is a crime (defined in the criminal code), that can only be prosecuted if the victim requests it. Antragsdelikt mostly applies to less serious crimes, such as slander or petty theft, while "serious" crimes, such as robbery or assault must always be prosecuted (Offizialdelikt). Also, there are many minor crimes (relatives Antragsdelikt) which are usually only prosecuted by request, but where the prosecution can also decide to press charges if it is in the "public interest" (usually because the act is deemed a serious infraction). Similar concepts exist in Austria and Switzerland. | Through the legal doctrine of "transferred intent", wherein if one intends to murder A, and undertake actions to kill A, but one's actions kill B, one has murdered B. Whatever crimes one would have committed, had one performed them on one's intended target, are considered committed against the individual one actually performed them on. Many crimes require one to have mens rea to be guilty; they do not require one to have mens rea towards a given individual. So, so long as one had the proper intent to murder someone, the actual victim of their actions is irrelevant. | Yes. This sounds equivalent to the famous case of Katko v. Briney, 183 N.W.2d 657 (Iowa 1971). A shotgun trap was set up in an abandoned house owned by Edward and Bertha Briney. A thief broke in and was seriously injured. After the thief had served his sentance for the attempted theft he sued the homeowners and won $20,000 in actual damages and $10,000 in punitive damages. |
Can the fact that debt is being collected be disclosed under Australian Consumer Law and Fair Trading Act 2012 section 45(j) The Act states: "disclosing or threatening to disclose debt information, without the consent of the debtor, to any other person who does not have a clear and legitimate interest in the information; Example Disclosing debt information when contacting a person who is not the debtor while attempting to locate or identify the debtor" So if I attempt to call a debtors old work place can I disclose that I am searching for him because I am collecting a debt without further information or should I say that I am prohibited by disclosing my reason for making contact with the individual by the Australian Consumer Law and Fair Trading Act 2012 section 45(j) - (which is pretty much saying that I believe that he is a debtor). | The Australian government has put out a document entitled RG 96 Debt Collection Guideline. It makes it clear that they consider it forbidden to disclose that you are collecting a debt. They even forbid disclosures that would allow a third party to infer that you are collecting a debt. Part 2, Section 1(b): If you consider it necessary to divulge your identity as a debt collector before being sure that you are dealing with the debtor (for example, if requested by the person you are dealing with), then you may do so if that would not have the effect of divulging that the debtor has a debt. Particular care should be taken when speaking to a person at a debtor’s workplace or when using a medium that may be shared with others (e.g. social media, landline telephones etc). Section 8: Telling any third party the reason for trying to find the debtor will also disclose personal information about the debtor. Caution should be exercised when leaving messages for the debtor that may be seen or accessed by third parties, for example: Business cards or other documentation should not be left for the debtor in any open manner that would allow a third party to infer the nature of your interest in contacting the debtor. Voicemail messages should be phrased so as to avoid a third party inferring the nature of your interest in contacting the debtor. At no stage should contact be made with a debtor’s social media account that would compromise the debtor’s privacy, for example, placing a message for the debtor in a way that would allow anyone other than the debtor to view it. So to your questions: So if I attempt to call a debtors old work place can I disclose that I am searching for him because I am collecting a debt without further information No, you cannot not say that. or should I say that I am prohibited by disclosing my reason for making contact with the individual by the Australian Consumer Law and Fair Trading Act 2012 section 45(j) You should not say that either, as it would allow the former employer to infer the nature of your interest in contacting the debtor. | To preface my answer, this aspect of UK law is unclear at best and I try to set out general principles where available. If you are acting in a private sphere, then the recording of conversations are unregulated, however this is only for personal use – i.e., should you desire to make notes on what was said for your reference at a later date. Should you wish to share it with a third party, then you would need consent from all participants or be able to demonstrate that it would be in the public interest. If you are acting as an employee or a company, then the situation changes. Firstly, you need to check your contract, whilst this does not constitute a crime, it may be against the terms of your employment. Secondly, a company can only make recordings without knowledge under statutory conditions, such as to establish facts, ensure regulatory compliance or demonstrate standards that are achieved or need to be achieved by training. It is a general principle that conversations recorded without consent are inadmissible in court, particularly in terms of a criminal proceedings. In civil matters, it similarly follows the concept that a claimant should come to court with clean hands. However, judges are usually more pragmatic in civil cases and if parties are aware of the existence of the recording, then it often be subject to usual rules of disclosure, though this may open the creator of the recording to subsequent litigation regarding the illegality of the recording under Data Protection Act or others. | Late to the party, but I'll answer anyways. In general, providers have a lot of wiggle room when sharing information with parents, on condition that the patient hasn't explicitly objected despite having opportunity to do so. HIPAA allows the provider to make a judgment call on whether such information can be shared without explicit consent: Quoting Title 45 § 164.510 : (i) Obtains the individual's agreement; (ii) Provides the individual with the opportunity to object to the disclosure, and the individual does not express an objection; or (iii) Reasonably infers from the circumstances, based the exercise of professional judgment, that the individual does not object to the disclosure. HHS does discuss disclosure to family members in their FAQ : A covered entity is permitted to share information with a family member or other person involved in an individual’s care or payment for care as long as the individual does not object. A parent of a child who has just turned 18 is likely still somewhat involved in the child's care, so, absent either an objection or a reason to believe the child would object if asked, sharing is probably not a violation. | Yes, you're allowed to pay someone to keep quiet, as long as whatever they're keeping quiet about isn't evidence of a crime. Companies can do this too, and quite often do. Offering to keep quiet in exchange for money may well constitute blackmail. But that doesn't appear to be an issue here. | The section you quote as clearly saying a thing is not clearly saying the thing. However: you cannot pass on or resell any license keys seems to say a thing clearly. However, one could argue that it's the sharer of the account who is in the wrong, and not the person receiving and passing on the account. I'd say that that piece of the agreement, combined with this: must not... let other people get access to anything we've made in a way that is unfair or unreasonable says that, yes, they are out of bounds. | The creditor must prove the debt with evidence In order to collect a debt, either: the debtor has to agree the debt is owed - straight up or after some sort of non-binding ADR, like mediation. the debtor has to prove the debt in a binding forum - either a court or binding arbitration Details vary by jurisdiction but a court case: starts with a statement of claim where the plaintiff (debtor) sets out their case against the defendant (creditor) the defendant can: ignore the claim - in which case the plaintiff seeks a default judgement and, providing they have a prima facie case, they will get it. They can then recover the debt. admit the claim and pay the debt raise a defence - in which they set out why the don’t owe the money in part or in whole. each side provides evidence to support their position the court considers the evidence and arguments and decides if the plaintiff has proved their case on the balance of probabilities if they have, they receive judgement which the can enforce (subject to appeals) if they haven’t there is no debt (subject to appeals) | It is generally legal for a business to ask, but it is not legal for a business to insist that you provide it as a condition of providing goods and services unless a law requires that the SIN be provided. As explained by the relevant Canadian government website: While there is no law barring businesses from asking for the SIN where there is no legal requirement to do so, they do need to make people aware that collection of a SIN is optional and not a condition of service. The Personal Information Protection and Electronic Documents Act (PIPEDA) sets out ground rules for how private sector organizations may handle personal information — including the SIN — in the course of commercial activities. Under the law, organizations cannot require you to consent to the collection, use or disclosure of your personal information unless it is required for a specific and legitimate purpose. This means that, unless an organization can show that your SIN is required by law, you cannot be denied a product or service on the grounds of your refusal to provide your SIN. Of course, the rub is, that an employer is legally required to have your updated SIN for tax purposes, so the employer is allowed to demand, rather than merely request that you provide it. In particular: 7.3 In addition to the circumstances set out in section 7, for the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, a federal work, undertaking or business may collect, use and disclose personal information without the consent of the individual if (a) the collection, use or disclosure is necessary to establish, manage or terminate an employment relationship between the federal work, undertaking or business and the individual; and (b) the federal work, undertaking or business has informed the individual that the personal information will be or may be collected, used or disclosed for those purposes. A business is required to do this consistent with Schedule 1 to the Act which provides in the most pertinent part: 4.7 Principle 7 — Safeguards Personal information shall be protected by security safeguards appropriate to the sensitivity of the information. 4.7.1 The security safeguards shall protect personal information against loss or theft, as well as unauthorized access, disclosure, copying, use, or modification. Organizations shall protect personal information regardless of the format in which it is held. 4.7.2 The nature of the safeguards will vary depending on the sensitivity of the information that has been collected, the amount, distribution, and format of the information, and the method of storage. More sensitive information should be safeguarded by a higher level of protection. The concept of sensitivity is discussed in Clause 4.3.4. 4.7.3 The methods of protection should include (a) physical measures, for example, locked filing cabinets and restricted access to offices; (b) organizational measures, for example, security clearances and limiting access on a “need-to-know” basis; and (c) technological measures, for example, the use of passwords and encryption. 4.7.4 Organizations shall make their employees aware of the importance of maintaining the confidentiality of personal information. 4.7.5 Care shall be used in the disposal or destruction of personal information, to prevent unauthorized parties from gaining access to the information (see Clause 4.5.3). There is really no specific provision allowing you to refuse to provide information via email, but the Safeguards provision does state that appropriate care does need to be taken to avoid disclosure, and you are disputing that their email collection is adequate. Also, while employers are required to collect SIN data from employees, there is nothing that expressly requires them to collect it via email. If you wanted to compromise, one option would be to save the SIN in a password protected word processing document (usually available in the save as window in an obscure little corner), and then you could attach the password protected document to the email and communicate the password itself to the recipient orally via telephone with you calling their number to prevent any phishing scam. It's a bit clunky, but it gets the job done. Also, please recognize that while a SIN number is important to keep confidential to the extent possible, it is hardly the most sensitive personal information in existence. Lots of people have a need to know it for legitimate purposes and it probably wouldn't be hard at all for someone to get it illegitimately by making a request for your credit record or a tax return transcript under false pretenses. | I know it's not a huge amount of money, but I'm not currently in a position to pay it. Is it still legal to send invoices this long from the past? Yes, it is legal. And the surveyor is still within the statute of limitations to sue you for breach of contract. Beyond the purely legislative aspect, personally I would encourage you to pay the surveyor once you are in a position to do so, even if the statute of limitations had expired. From your description, it seems that the surveyor acted with nobility in that Even though he didn't mention any payment, he sent me the survey. and there is no indication that the survey was faulty. Thus, it would be opportunistic not to honor your part in the contract under pretext of the statute of limitations. Consider this: You would not wish to be deprived of compensation today (or once the debtor becomes able to pay you) simply because years earlier you were too overwhelmed to send an invoice for work you actually performed. |
In what situations can siblings inherit a home, but one sibling has more control over its management? (US) I'm developing a story idea in which the protagonist co-inherits their grandmother's home with their sister and, long-story-short, I'm trying to create an obstacle where the sister wants to sell the home, the protagonist (who ends up moving into the home) wants to keep it, but legally the sister has some sort of upper hand. Now, I (obviously) know nothing about the legalities of inheriting a home and my intention is not to write a courtroom drama-- the potential sale of the house is part of the conflict/impetus for the protagonist to take action, but not the main focus of the story. However, I do want to make sure I'm being accurate and also open to how realistic legal processes and implications might inform the overall story. I'm doing research on the legal process of inheriting real estate-- but can anyone offer guidance on where I can start or suggestions on potential scenarios? *The story is based in the US, but I'm not tied down to a specific state yet. | Normal ways of owning a house don't allow this In common law jurisdictions (so, be careful if you set this in Louisiana which has mixed civil/common law) the normal ways that residential property is owned would either require the agreement of all parties to sell or one party could sell their share but they could not force the other party to do so. However, there are lots of ways that property can be abnormally owned. First, there is the transitional period where the property is legally owned by the Estate of the deceased for the benefit of the beneficiaries and administered by the executor of the will or the administrator if there is no will. If the house was bequeathed specifically to the beneficiaries then the executor must arrange for the legal transfer. However, if there is no will or the will just bequeaths assets without identifying them then the executor/administrator has discretion on whether to transfer the house or to sell it and distribute the proceeds. If this is shortly after the death and the sister was the administrator, she could decide to sell. The house could be owned by a company. If so, the director(s) would be able to dispose of it. The director(s) are appointed by the shareholders and if the sister had more than 50% of the shares, well. This is not a particularly common way of owning residential property because it has tax disadvantages but it is a common ownership method for industrial or commercial property: many companies own the land where they do business. Perhaps the house is a small part of a large factory complex? The property could be inside a trust with the brother and sister as beneficiaries but the sister as trustee. Trusts can be discretionary (i.e. the trustee decides who gets what) or unit trusts (like having shares in a company - you get it in proportion to your holding). The latter is the way publicly traded property trusts work. While the trustee has to operate in line with the trust deed and for the benefit of all the beneficiaries, the sister may, reasonably or unreasonably, decide that selling the house is in those interests. | Close family members can stay as long as the tenant wants The tenant is entitled to "quiet enjoyment" of the property which includes living with their close relatives - spouse, de facto and children would all qualify; parents and siblings might as well. It doesn't matter if these people are children or adults. You cannot contract out of this as you are not allowed to discriminate in housing based on family situation. The tenant is also entitled to have non-relative house guests stay for as long as is reasonable. A month or so would be reasonable; longer than that and it starts to look like a sub-lease for which they would need your permission. There is generally a limit under texas law of 3 adults per bedroom but that doesn't seem to be an issue here. I also can't see where having a non-resident's mail delivered to the property is something you have a say about. I'd be very careful if I were you because it seems like you are on the wrong side of the law here. | I think it is not possible to answer the question as is, but this document from the Indian courts lays out the relevant legal variables. A major split is between Sharers and Residuaries: a Sharers are all related by blood. A secondary split relates to testate vs. intestate succession (was there a will?). There are also special rules for West Bengal, Chennai and Bombay. A widow is generally entitled to a share of her husband's property, but if the husband dies before his father, the husband does not have his father's property. But then, if a Muslim marries under the Special Marriage Act, 1954, they are not treated legally as Muslim for purposes of inheritance. All told, it is most likely that the widow has no legal claim on the property, but still a person should engage an attorney who can assess the particulars of the case. | First off: if someone in DHS is telling you this, your first, best, and really only option is to get advice from an attorney specializing in family law. Regardless of what we tell you here, without representation you will have a hard time with officials who believe otherwise. That said: I don't find anything exactly matching what you describe. The Uniform Adoption Code (AR Code § 9-9-200 (2014)) does not specifically address sibling groups at all. Adoptive parents do have rights to streamlined adoption of a sibling of a child they already adopted, under the Streamlined Adoption act (AR Code § 9-9-701 (2014)). In the section related to Placement of Minors (AR Code § 9-28-108 (2014)), however, is likely what the case worker was describing. Subsection (b) (2) reads, in part: (2) When it is in the best interest of each of the juveniles, the department shall attempt to place: (A) A sibling group together while they are in foster care and adoptive placement This is discussing foster care and adoptive placement, of course. I think the key wording is When it is in the best interest of each of the juveniles; that would be your argument (that it is not in their best interest). I see a 2011 case, for example, discussing a sibling group of four children not entirely different from yours; while there are not children with special needs, there is a child with major behavioral issues, and one of the (three) foster parents is considering adopting one of the children and "would be open" to considering others, but clearly isn't expecting to be required to do so. Note: I am not a lawyer, and particularly not one specialized in family law This is based on my reading of the 2014 Arkansas code. That is almost 2 years old. That said, I don't see any news articles or similar discussing limitations in sibling group placement in Arkansas recently, which is the sort of thing that usually would get attention. That said, this has also been something that HHS has been trying to encourage states to push for – more sibling group placement and awareness of sibling group issues – so it's entirely possible something could have changed. | Contracts contain an implicit term that obligations will be carried out in a reasonable time While the situation is unusual and we obviously don't have the specific terms of the agreement, it would appear that the vendor agreed to contribute to half the cost of the roof repair and your sister was obliged to contribute the other half and arrange for the roof to be repaired. Implicit in this is that she would do this within a reasonable time. Your sister does not have the right to keep the money in limbo indefinitely. It's open to argument whether a year is a reasonable time or not. Similarly, if your sister is in breach of the agreement, the vendor would probably only be entitled to damages for what they have lost; they would not normally be entitled to terminate the contract. Their damages might be assessed as the difference between what their share costs now compared to what it would have cost a year ago - this may be nothing or a lot depending on how prices have changed - and interest lost on the balance that should have been returned to them. | I assume that the loan was legal, in light of rule changes pertaining to non-borrowing spouses. If so, there is really no recourse other than to repay the loan. This article explains the current options / restrictions in an understandable manner, but of course it is too late to do anything about it. If there was actually fraud or coercion in the loan, or if the elder party was mentally incompetent, there might be some legal recourse, but we don't have any evidence of fraud, coercion or incompetence here. | An obvious example would be a contract that gives possession of something to someone else. It's normally legal to use some reasonable amount of force to protect or prevent trespasses against property you own, but if you give possession of that property to someone else you can lose that right. For example, you can use force remove a guest who refuses to leave real property you own, but can't use force to remove a tenant even if they broke the terms of your contract. In most jurisdictions you'd need to get a court order and have the police use force if necessary remove the tenant. | That is, if my mom is sued by somebody for some reason, does that mean I am being sued, and my personal assets are at risk, rather than just hers'? Having power of attorney doesn't mean that you become "one and the same" person, it just means that you can stand in their place legally. If somebody sues your mother, you are authorized to act on your mother's behalf, but that doesn't mean that you are liable for any judgement. Of course there is a fiduciary responsibility to act in your mothers best interest, and violating that can open you up to suits that you are responsible for (because the suit would be against you, not your mother). And, what if she runs out of money, would I be personally financially liable for covering her expenses? No, you wouldn't be. Debts would be settled the same way as if she didn't have anybody acting as PoA. She (you) could declare bankruptcy on her behalf and have the debts discharged. This doesn't obligate you to pay them. And then, what if I simply don't have time to deal with her affairs, that is where I am being put in a position where I have to choose between keeping my job and my personal relationships at home versus going to deal with things over there, would having POA force me to do the latter? This is a personal decision for you. You could alternatively pursue having her declared as an "adult ward of the State". You need to consult a lawyer if you take on full power of attorney, to both protect you, your assets, and your responsibilities. This is something that you really need a lawyer to draft so that the lines are clear, and the expectations are as well. You may need to get a court involved if she is not of clear mind to sign these papers. |
What is the origin and significance of distinguishing between "misdemeanor" and "felony"? As far as I know, the difference in definition is merely that a "misdemeanor" is something punishable by a year or less in prison, and a "felony" is something punishable by more than one year in prison. Assuming I've got that right (and correct me if I am wrong) that seems like a rather arbitrary dividing line to be making up words to define. Why not have a "nuisance" a "misdemeanor" and a "felony" as the dividing lines? Who decided there should be only "misdemeanors" and "felonies"? And what is the significance of calling something a "misdemeanor" or a "felony"? I mean, if one person is charged with 364 days in prison and another is charged with 366 days in prison, it hardly seems helpful to distinguish them by calling one a misdemeanant and the other a felon. What are the labels used for and who came up with those labels and aren't they arbitrary? | First, I need to correct a misconception you seem to have. The length of time you spend in jail does not normally determine if something is a felony or a misdemeanor. Whether something is a felony or a misdemeanor is based on how you're charged. And it's not like you happen to be charged with something with a maximum sentence of 365 or 366 days; if you are being charged with a felony, it's because the decision was made that your alleged crime was serious and should be treated as a felony. If you're being charged with a misdemeanor, ditto. Prosecutors charge knowing the difference between the two. The distinction was not originally "punishable by more than a year in prison" vs. "punishable by at most a year." In fact, it originated well before the idea that the default punishment for most crimes is confinement for a term, where the term is dependent on the severity of the crime. The original distinction was about forfeiture. A felony was a violation of a feudal relationship between a lord and a vassal; if a vassal violates their duty of loyalty to their lord, their relationship ends and their property is forfeit to that lord. Not all serious crimes were felonies. Murder was normally not a felony, because it didn't violate that duty of loyalty. Later on (post-Normans), murder and other serious crimes did result in forfeiture. The term broadened to include these crimes; at this point, "felony" meant "this crime results in your property being forfeit." These were also the most severe crimes. This is the point where "felony" meaning "exceptionally severe crime" really became established. However, the technical distinction based on forfeiture became muddied, because of another punishment that almost always went along with it: execution. Blackstone, in his Commentaries on the Laws of England, complained that people are mixing these two up. The meaning generally shifted to "crimes which were punished by death," but scholars did know that the proper meaning should really be "crimes punished with forfeiture." The distinction mattered. Because felonies were so serious, the procedure involved differed in several respects. I happen to know you're in the US and my main source is also about the US, so let's hop across the Atlantic Ocean to the colonies. Here, forfeiture was pretty much unknown around the time of independence. The popular understanding of "felony" was still "capital crime;" the legal understanding tended to be "the common-law felonies plus things the legislature designated as a felony." Nearer the end of the 18th century, the number of crimes punishable by death dropped substantially in the US. The default punishment for most serious crimes shifted from execution to confinement in a prison (this is when prison became the default sentence for even very serious crimes in the US). These new prisons were very different from the older jails: they were designed to reform their inmates, and turn them into productive members of society. But not all crimes need that; with less serious crimes, you don't have to go about fixing a character flaw, you just have to show to the criminal that doing this bad thing results in this punishment. The lack of a firm definition of felony became a serious problem shortly after this change. Originally in the US, things worked basically like in England. Legislatures passed laws, which might refer to older laws by name, but there was no organizing principle. Lots of the criminal law was bound up in precedent. It was extremely difficult to find out for sure what the law even was. Instead, there was a major push to codify the law. That means you would have a code, which contained, in organized form, all the laws relating to crime. One of the earliest and most influential American penal codes was actually never adopted. It was written by Edward Livingstone for Louisiana, and was intended to wholly supplant the common law (Louisiana would be the perfect state for this, because it still has a civil law tradition). Livingston didn't use the term "felony," but did distinguish between "crimes" and "misdemeanors." The main systematic difference was not in the penal code itself (the punishments were set out on a crime-by-crime basis), but in the corrections code. Crimes were punished in a penitentiary designed to reform the prisoner; misdemeanors were punished by simple imprisonment. Crimes were all punished by more than a year, while misdemeanors could be punished by anywhere from a few days to two years. The important thing was where and how you were punished, not for how long. While this code was never adopted, it had a major influence on the New York code of 1829. The New York code was designed to rationalize the law, but not do too much in the way of substantive changes. In particular, the old idea of a "felony" was not abolished; it was preserved, with real significance (part of the point of keeping the term was that they didn't want to lose all its baggage), and so it needed a definition. They basically adopted Livingstone's definition. Felonies were always the more serious crimes; since serious crimes were now evidence of character flaws to be reformed in a penitentiary, the crimes where you got sent for reform were the felonies (plus, of course, those punished by death). All others were misdemeanors. They also decided that punishment for more than a year, in a jail that's not designed to reform you, was bad; no jail sentence could be more than a year. Since confinement continues to be the main form of punishment, this definition has managed to stick without issue. The forfeiture and capital punishment definitions became obsolete as those punishments became completely obsolete or very, very limited in use. That's pretty much how things got where they are now. It makes some amount of sense to distinguish between bad crimes and not-so-bad crimes, without needing to list out the bad crimes. This is not actually unique to English law; the French penal code also makes this distinction. The term survived the feudal context in which it originated because it was useful. As confinement became the main type of punishment, and as (at the same time) confinement for serious crimes was paired with efforts to reform and rehabilitate criminals, the old distinction shifted to distinguishing between things where you needed that reform and things where you just needed punishment. Then, it shifted in some places to being about the length of said punishment, as an alternative way of expressing the same basic idea but which could be more easily applied to varying systems. Main source: Will Tress, Unintended Collateral Consequences: Defining Felony in the Early American Republic, 57 Clev. St. L. Rev. 461 (2009) | I think this relates to individual stores interpretation of California's "ABC Laws": § 25658. Sale to and consumption by person under 21 years of age; Use by peace officers to apprehend sellers of alcoholic beverages to minors (a) Except as otherwise provided in subdivision (c), every person who sells, furnishes, gives, or causes to be sold, furnished, or given away any alcoholic beverage to any person under 21 years of age is guilty of a misdemeanor. (b) Except as provided in Section 25667 or 25668, any person under 21 years of age who purchases any alcoholic beverage, or any person under 21 years of age who consumes any alcoholic beverage in any on-sale premises, is guilty of a misdemeanor. (c) Any person who violates subdivision (a) by purchasing any alcoholic beverage for, or furnishing, giving, or giving away any alcoholic beverage to, a person under 21 years of age, and the person under 21 years of age thereafter consumes the alcohol and thereby proximately causes great bodily injury or death to himself, herself, or any other person, is guilty of a misdemeanor. The last part is the part that scares business owners. Some interpret it as "if they furnish alcohol to you (a person over 21) and have reasonable suspicion that the purchase will be given to the minor, the person furnishing the alcohol is guilty of a misdemeanor". This is absolutely true in the case of bar owners/bartenders. If they sell somebody a drink, even if that person is over 21, and that drink is then given to a minor, they can be (probably not successfully) held responsible in some form for any injury that person sustains or commits as a result of alcohol consumption. Some stores take this much more seriously (because a violation can mean the loss/suspension of the liquor license) than others, and it is at the stores discretion to deny the sale based on any suspicion, whether based in reality or not. | The main legal impediment to such action is that nonviolent political actions are not rebellion or insurrection. Interpreting the meaning of these terms arises in litigating insurance claims (where there is often a clause denying coverage in case of insurrection or rebellion), e.g. Younis Bros. v. CIGNA Worldwide Ins. where the matter was the Liberian civil war. Neither "insurrection" nor "rebellion" are defined under the statute, therefore they have their ordinary meanings. The ordinary meaning of "insurrection" does not include Congress overstepping its authority (if that happened), nor, in general, would it include an illegal act by a public official. Reference to 18 USC 2381, 2382, 2383 2384 is common in suits files under sovereign citizen theories of law, which courts deftly dispose of because the plaintiff has no standing in criminal matters. However, various Freedom of Information cases involving FBI investigations such as Shaw v. FBI, Friedman v. FBI, 605 F. Supp. 306 have suggested that the FBI can investigate a possible violation of 18 USC 2383 which does not involve open civil war. Various cases like Hamdi v. Rumsfeld (Scalia dissent), Padilla v. Hanft have supported the proposition that persons engaged in open war against the US can be prosecuted under this section. As far as I can determine, no case has supported the notion that a nonviolent action exceeding legal authority constitutes violation of that law. In US v. Silverman, 248 F.2d 671 the court mentions that "conspiring to overthrow the Government by force and violence" is prohibited by that statute. Furthermore, since the actions in this specific instance involve stuff that happened on the floor of the House, they are constitutionally completely immune. Article 1, Section 6 of the Constitution says of Congress They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. So while a Congressman can be arrested for racketeering or breach of the peace traveling to a session, they cannot be tried for what they say in session. I think they could be arrested for assassinating the Speaker while in session, but not for advocating assassination in a speech or debate. | I've never heard the phrase used this way, and it wouldn't make any sense, anyway; "indemnity" is security against a consequence, so the existence of civil and criminal consequences would be a double non-indemnification. Maybe ask the lecturer for a published example of this usage. | You have a couple major misconceptions about US law. First, crimes against the person are generally punished at the state level. States are not restricted to any sort of enumerated powers, and can pass any law they want to promote the general welfare unless there's a reason they can't. This is called the "general police power," and it lets them make everything from contract law to laws against murder. The federal government has to justify what gives it the authority to pass a law, and cities and counties have to justify their authority with state law or a state constitution, but a state government never has to preemptively justify why they have the authority to pass a law. States are especially not limited to powers listed in the federal constitution. The US Constitution sets up the federal government. State governments are set up by state constitutions, and derive their authority directly from the consent of the people of the state exercising their right to democratic self-determination. The only powers the US Constitution gives to states are minor technical powers involving state-federal relations (e.g. deciding how their presidential electors are appointed). But as I said, they aren't generally limited to any sort of enumerated powers by their state constitution either. Even the federal government isn't limited to "protecting rights listed in amendments." That's very little of what it does, in fact. Congress has powers listed (for the most part) in Article I and Article IV. It can pass laws banning murder in DC because Article I lets it exercise exclusive jurisdiction (meaning general police power) over DC and over federal enclaves. Article IV lets it exercise general police power over US territories, and pass laws regarding other federal property (I think it has a general police power there too, at least according to current law). The Necessary and Proper clause gives Congress the power to protect its own operations by, for instance, criminalizing the murder of a federal judge. Etc. Where there isn't a clear thing that lets the feds regulate something, they can probably get away with cramming "in or affecting interstate or foreign commerce" in the law, secure in the knowledge that practically everything affects interstate commerce. I'm not sure where you got the idea that laws are passed exclusively to enforce rights protected by the Constitution. They are not. They are not passed primarily for that purpose. Such laws do exist (e.g. deprivation of rights under color of law, which was passed pursuant to the 14th Amendment), but they're protecting you from government infringement of that right. | This Question Is Tricker Than It Seems One of the things about being a non-expert in a field is that it is very difficult to know in advance what is a hard question and what is an easy question. Some questions that seem like they should have simple, straight forward answers are actually very hard to answer. Some questions that seem like they should be very difficult and have involved tricky answers are actually very easy. Without an in depth understanding of the field, you just can't know in advance. It turns out that this particular question is a quite hard question to answer. So, rather than really providing a clear answer, I will explain what about this question makes it hard to answer in this answer. Even this incomplete and ultimately inconclusive answer will require far, far more words (2,078 to be exact), than were necessary to pose the question (94 words). Essentially, the core difficulty is that there are several different principles of law that apply to this fact pattern, each of which, individually have specific things that have to be proved to establish that some legal consequence will follow (which in turn are often themselves intrinsically indefinite), and each of which has exceptions that could also be proved if specific things happen. In part, this is because, while the fact pattern set forth is not freakishly unforeseeable, it is also not a fact pattern that was contemplated when any of the individual legal principles that are implicated were conceived. Likewise, the interaction of these different legal principles in one fact pattern wasn't contemplated and there is probably no one clear controlling case precedent on point that involved this fact pattern. What the law does in cases like these (which come up all the time in real life) is to break down each legal theory individually and analyze it, possibly spread over multiple distinct court cases in different courts in front of different judges. I'll try to unpack the issues (dispensing with U.K. legal terminology in some cases, since I'm only trying to provide a sense of why this is complicated and not to provide a definitive answer to how it is resolved under U.K. law). Possible Claims, Charges, and Defenses; Traffic, Civil, and Criminal It is a crime to threaten someone with weapon or in another way that puts someone at risk of imminent harm. Depending upon the weapon and other circumstances, mere possession of the weapon might be a crime in the U.K. Someone who has been threatened with weapon or in another way that puts them at risk of imminent harm can be a civil lawsuit for money damages against the person making the threat which was called "assault" in historical common law. Someone who has been threatened by another can seek a restraining order/protective order directing that person to stay away from them in the courts in a civil action. Hitting someone else's car is a traffic violation, unless a defense to the traffic violation is present and proven. Hitting someone else's car with a statutorily mandated level of intent is a crime, unless a justification for the crime is present and proven. The person whose car was hit could credibly argue that hitting the door was a mistake, not because the door was hit, but because the driver intended to kill them and missed, so an attempted homicide charge could raised in a criminal proceeding. The person whose car was hit could argue that there was an intend to put them in imminent risk of harm providing a basis for a civil lawsuit for money damages for common law assault. Someone whose car is hit by another car through negligence or recklessly or intentionally can bring one or more claims in a civil lawsuit against the person who car hit their car for money damages. The standard of care for negligence is established by how a reasonable person would act under the circumstances. Self-defense is a possible defense to traffic offenses, criminal charges and civil liability related to harming another's property if the conditions for self-defense apply, which include a risk of imminent harm to oneself, another, or one's property, and if the action taken in self-defense is reasonably proportional under the circumstances as evaluated by a reasonable person in response to the threat. But, if the response of the person making the threat with the weapon was as a result of actions in which the person threatened with the weapon was the true aggressor, then the privilege of self-defense would be forfeited. In real life, good attorneys for the parties could almost certainly solicit and call attention to additional facts not mentioned in the question that would further muddy the waters and raise additional claims, charges, and defenses to claims beyond the ten listed above. I could analyze each of these issues on the facts in depth as best I could with references to statutes and case law (under a body of law other than U.K. law anyway), which would take a few lengthy and heavily researched paragraphs each that would take a fair amount of time each to prepare, but I won't. A full analysis would help you weigh the odds a little better, and if I was a lawyer of a party in this situation, I would do that since every little edge counts in litigation and negotiations of settlements. But even if I did that, it would still leave a lot of uncertainty regarding the final resolution of these questions on the merits. Decision-Making Regarding Bringing Claims The traffic and criminal charges would be brought or not brought largely in the discretion of the Crown attorney or some other government official. It is most likely that a government official making that decision is doing so because the offense was referred to them by the police officer who responded to the scene, or a police officer who received an informal complaint (as opposed to a civil court filing) from one of the parties, or through a complaint delivered directly to the prosecuting authority by an alleged victim. A prosecutor doesn't have to bring claims just because someone asks them to, and doesn't have to bring all possible claims even if some are pursued. The parties themselves would decide whether or not to bring civil claims against each other. Whoever is sued first would make the decision in the context of knowing that they will be a party to a civil lawsuit whether or not they bring civil claims of their own. Possible Forums The traffic offense would probably be resolved in one court. The criminal charges against the person making the threats would be resolved in another court. The criminal charges against the person who hit the car door would be resolved probably in the same court but in a different case, possibly with a different judge. The civil claims would be resolved in yet another court, probably with a different judge, although probably in a single case with the first person to make it to court as the Plaintiff and the other party as a Defendant bringing counterclaims against the Plaintiff. The civil claims might also involve other parties (e.g. the owner of the vehicles in question if not identical to the persons driving the cars at the time of the incidents). Issue Preclusion Some final decisions on the merits in some cases would resolve the outcome of other cases as a matter of law, other final determinations in some cases would not be binding on the other cases as a matter of law because burdens of proof are different, or the legal issue evaluated is not identical, or because other rules (like a rule against a traffic court decision resulting in a binding determination on civil liability for negligence) would apply. The exact rules are rather arcane and there are quite a few permutations of how it come up, but it is important to be aware that these kinds of rules are out there, exist, and would have to be analyzed by the parties as a matter of litigation tactics. Even The "Legal Issues" Are Fact Intensive Inquiries Almost all of the legal theories implicated above involve broad legal standards in which a lot of the substantive question of what is or is not legal is delegated to the finder of fact in a manner that cannot be reviewed on appeal. For example, in a negligence case related to damage to an automobile, even if there is a videotape and there is 100% agreement on precisely what happened, whether that conduct constitutes "negligence" that breaches the duty of care owed by a reasonable person to the general public to protect them from harm, is legally considered a "question of fact" to be determined by a judge on a case by case basis, rather than a "question of law" which will always have the same outcome and is subject to review by an appellate court if the judge gets it wrong. A similar "reasonable person" standard which must be resolved with a highly fact intensive inquiry that could be resolved more than one way by two different judges or juries hearing precisely the same facts and finding the same witnesses and evidence to be credible in exactly the same way, with both upheld on appeal, applies to the self-defense legal theory. This self-defense issue could also conceivably, based upon the order in which cases were tried and their resolution, be resolved one way in a criminal case and a different way in a civil case between the parties. In the same vein, when a threat is imminent is a highly subjective determination that could be resolved in a "legally correct" way that is not subject to being overturned on appeal on precisely the same facts, with precisely the same determinations as to credibility and weight of the evidence, by two different judges or juries. Again, the substantive question of whether particular conduct is or is not illegal is a "question of fact" that can't be resolved in the absence of a trial on the merits in a particular case before a particular finder of fact. Bottom Line The facts provided in the question aren't sufficiently detailed to provide a definitely correct answer to this question. Indeed, the nature of the facts is such that even an perfectly detailed factual statement regarding what happened might not be enough to definitively determine who has civil liability to whom, and to determine what charges each defendant is guilty of. Different judges and jurors could reasonably come to different legally correct conclusions in a case like this one when faced with precisely the same facts and resolving all issues of credibility and the weight of the evidence in precisely the same way. This difficulty is compounded by the fact that the same facts would be analyzed with respect to different legal theory analysis in different forums by different people, when there is not, as a general rule (although there is in some cases) any mechanism for compelling those decisions to be made consistently on outcome determinative evaluations of the same facts regarding what was reasonable for the parties to do under the circumstances. The notion that a judge is just an umpire, and that every competent judge acting in good faith will always resolve a case presenting the same facts in the same way is a myth. This simply isn't true, even in the U.K. where the judiciary is (as a consequence of how the system for appointment and retention of judges is designed) not nearly as partisan and politicized as it is in the United States. The outcomes of even fairly simple cases in many cases, like the one in this question, are intrinsically and irreducibly uncertain in common law legal systems. The range of possible outcomes from a best case scenario to a worst case scenario, for each party in this fact pattern, is very wide. A desire to tame the myriad uncertainties involved for all parties, and the desire to avoid multiple time consuming and uncertain court proceedings arising out of the same incident, is one of the reasons that it is very common for civil lawsuits to settle out of court without a trial, and for criminal cases to be resolved by an agreement of the prosecution and the defense (sometimes reached even before charges are filed). | I'm no expert, but I had assumed this clause was present in case of the following situation. Joe is arrested for a robbery of a London bank. Joe says nothing under questioning. At trial, Joe's defense is that at the time of the robbery, he was in Sheffield drinking beer with his brother. On the basis of common sense, a jury could think: "Surely if Joe were really innocent, he would have told the police of his alibi at the time he was questioned, and saved himself a lot of trouble. Since he didn't do that, maybe a more likely explanation is that he wasn't actually in Sheffield, but that sometime between arrest and trial, he came up with the idea of faking an alibi in Sheffield, and convinced people to testify falsely to that effect. Yes, that does seem more plausible. So we are not going to give much credence to Joe's supposed alibi." So it really would be the case that not mentioning the alibi during questioning would harm Joe's defense at trial. The warning, then, is intended to keep Joe from doing this inadvertently. If Joe's alibi is genuine, but out of a misguided desire to exercise his right to remain silent, he doesn't mention it during questioning, he may accidentally increase his chances of being wrongly convicted. Everybody has an interest in avoiding this. | What is the status of songs that glorify illegal activity in different countries? germany Depends on the crime and the lyrics. For historical reasons, glorifying genocide is banned. Calling for crimes to be committed against individuals is banned. More generic 'gangster rap' pretending to a criminal lifestyle is allowed. The exact dividing line between the two comes out in court precedents, which weigh the freedom of expression against the freedom from insults and criminal threats. Are there any countries where my question would be illegal to write? Sure. Consider North Korea, where those lyrics would be evidence of decadent Western speech patterns and get punished by two years to life (or more, if the police has a quota to fill). |
Can medical records ever be subpoenaed or discovered in any judicial context? My understanding is that medical records are legally privileged. What does this actually mean? Can they ever be required by a court to be disclosed under any context, or for any reason? (e.g. if demanded by another party during discovery?) Does it make any difference whether the court requesting the materials are in a different jurisdiction from that in which they were produced or generated? What if the medical records are required to be submitted by their subject for some other governmental process for them to obtain some desired bureaucratic outcome, and then copies of then become included in the records of those processes? Can they then be subpoenaed from that governmental body as records of the undertaken bureaucratic process? Interested in the answers to this in any common law jurisdictions. | Yes in general Generally, almost all western jurisdictions (be they civil law or common law) have some way to get medical records into evidence, be that via subpoenaing, or by discovery requests or court orders. In most cases, the party that brings the suit is also the patient or their legal representative, and they give (or imply) consent to the use of the records. And in cases where the defendant's medical records are required, usually, the defense wants those in too to prove some condition. And then there are cases where the state or their representatives brings the charge. They usually can bring a warrant or court order to obtain the documents. Then there are Medical records that had been made specifically on the behest of the state. Here, the warrant is usually filed to obtain the samples or access to the body to be investigated, the record itself forms the basis for the investigators to proceed - and is not under client-doctor confidentially in the first place. It had been made specifically for the state and it is a state-owned medical record, be they made on request of the executive power (police) with a warrant signed by a judge or on behalf of the judicative after a court order to evaluate capacity (see below). However, medical records can generally only be obtained if the records are relevant to the case at hand and only to the degree necessary: You can't request the medical records about a person's fertility status in a case that discusses damages for his broken arm. As a result, the medical record available in court might be only an extract from the original, with irrelevant passages sealed or redacted. Unlike many people think, it's quite common to get some medical records into court in some way or another: As the basis of injury cases If you have a case of physical injury, the injuries themselves need to be proven in court. This is done generally by getting the medical records - thus they can be subpoenaed by a party, usually the injured party here. Then a medical expert can discuss them, be they a court-appointed one or paid by either of the parties. In this category also fall mandatory reports of certain types of wounds or situations. As such, the treating doctor has to provide a medical report with enumerated types of injuries, like bullet wounds or where child abuse might be the reason. Very necessarily in malpractice cases Malpractice is pretty much injury on steroids: the injuring party made the records and would never want to give them up to the one suing them - if they could. Alice shall remove Appendix. It goes haywire and the day after Charly needs to cut Bob open again. Now Bob sues Alice for malpractice. Bob needs medical records from both Alice, the doctor who botched it, and Charly, who was fixing Alice's error. Generally, both records are subpoena-able to the degree relevant and necessary, and indeed the opposing medical opinions on the operation and records form the very basis of the case for either side. Without the ability to subpoena the - in this case unmodified - records from the injuring doctor, proving - or defending - a case of malpractice would be impossible: the very truth of the allegation should be in the medical records. It's routine in cases around death What is the very last medical record a person can ever get? An autopsy record! That's a very sensitive medical record, but they routinely are used in homicide cases. Oftentimes, the investigators also subpoena the medical records of the victim from their doctors to corroborate the autopsy record, while the defense might subpoena them to try and disprove it. Even in civil cases, like the OJ-Simpson civil damages case, autopsy and medical records from an accompanying criminal case can and will be "pulled" (copied over) from the other trial's docket. Regularly in child protection cases Whenever child protection is on the line, be them protective orders or who a child will live with after the child protection service (whatever its name is) is in on a case, then medical records are often required to bolster one side. Those records could be medical records from quite many doctors, be they physicals or psychological evaluations... Sometimes the medical records required here are only created due to court-ordered medical or psychological evaluation by a doctor. Whenever incompetence defense is called When the lawyer claims temporary incompetence or insanity, courts generally order a psychological evaluation. These medical records are evidence, but usually don't need to be subpoenaed: they have a waiver form to be disclosed to the court almost built-in. Are they available to the public? Medical records are part of truth-finding, but they are also quite sensitive. As a result, most medical records can not be gotten from the court and enter the dockets under seal. Another option is, that they enter the docket partially or even mostly redacted, with passages blackened. | That release needs to be provided in writing to each legal entity (read: office) that provides you with medical care. Providing the release verbally (ie: 'I say that my assistant speaks for me') does not cut it; the offices that agreed are technically in jeopardy of some hefty fines and are just trusting you won't turn around and report them. Most offices are going to have their own forms for this and won't accept some generic letter that you write up, sign, and send all of them. Have your assistant call each office and ask for them to fax over a copy of their release form. List your assistant as an authorized contact, sign it, and send it back to them. | In the UK and USA (and I imagine other jurisdictions) there have been laws that explicitly provide for orders obliging entities to (A) provide access or information and (B) keep the order secret. For example, in the USA the Stored Communications Act, Fair Credit Reporting Act and Right to Financial Privacy Act authorise the FBI to issue National Security Letters (Wikipedia, EFF, EPIC, Lawfare). These are an administrative subpoena, without prior approval from a judge, for meta-information (e.g. phone numbers dialed or email recipients addressed but not the content) of communications relevant to national security investigations. They typically contain a non-disclosure requirement prohibiting the recipient of the NSL from disclosing its existence or the FBI's demands. There have been challenges on First Amendment grounds to the non-disclosure aspect but, so far as I'm aware, they have all ultimately failed. Some of their non-disclosure requirements may eventually expire under other laws. In response, so-called 'warrant canaries' (Wikipedia) have been developed (and gone a bit further than the original idea) - these are intended to allow entities to relatively passively warn of such an order having been received if not the detail of the order. However, they can be legally risky in that they might be seen by a court as trying to circumvent the non-disclosure requirement and therefore breaking it. | Police officers can lie to you He asked to search your car. He’s allowed to do this. You said no. You’re allowed to do this. He lied to you when he said he would get the K9 to search the car - this would not be legal. But he’s allowed to tell you lies. You made an admission of criminal activity. He now has probable cause to search. He legally searched, confirmed your admission and booked you. Seems legit to me. | The general rule is that "public records" must be disclosed unless they are by definition not public records. This study summarizes US public records law on a state by state basis, if the issue is about the US. Taking Massachusetts as an example, the law defines public record here, so if the item is not a public record, it is not required to disclose the item. Clause 26 has a long list of exceptions such as (j) the names and addresses of any persons contained in, or referred to in, any applications for any licenses to carry or possess firearms issued pursuant to chapter one hundred and forty or any firearms identification cards issued pursuant to said chapter one hundred and forty and the names and addresses on sales or transfers of any firearms, rifles, shotguns, or machine guns or ammunition therefor, as defined in said chapter one hundred and forty and the names and addresses on said licenses or cards ... (o) the home address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. (p) the name, home address and home telephone number of a family member of a commonwealth employee, contained in a record in the custody of a government agency which maintains records identifying persons as falling within the categories listed in subclause (o). If the information is not legally a public record, there is no obligation to disclose. There is a general requirement via statute, regulation and court rulings requiring the government to protect personal information, such as this. You can get a list of sources on that topic here. This does not mean that the government body in question can be forced to redact that information, but it is at least possible that there is a (slim) legal basis for requiring them to protect your privacy. | Hardly ever While all doctors in private practice has a contract with each of their patients: For most practical purposes clinical negligence lawyers can forget about these. It is not that contractual duties do not exist – all private medicine and surgery is performed pursuant to such duties – but that they rarely add anything to the parallel duty owed in tort. The courts have been very reluctant to imply a duty in contract which goes beyond the duty imposed by the common law of negligence. While tort damages aim to restore the plaintiff to the position they were in before the tort and contractural damages aim to place them in the position they would have been in had there been no breach, for medical malpractice there is no practical difference. | There is not uniformity of law on this question, which is usually decided in the period after a death, but before a will is admitted to probate or an executor is appointed (typically in three to five days). As a result, the legal jurisdiction (usually a country or sub-national state or autonomous region) involved matters a great deal. For example, Italy used to presume that you did not want organ donation if you didn't execute a document during life saying that you did, and now has the opposite presumption. Similarly, many jurisdictions used to give a blood relative priority over a same sex partner, but now recognize a civil union or same sex marriage as having priority over a blood relative. Some jurisdictions give you some say over, for example, whether your body's organs will be donated or your body will be used for medical research. Some have formal documents that can be drafted and there are such things as "negative" provisions that are documents saying who cannot do something with your body. Other jurisdictions, as user6726 suggests, have a fixed priority system for determining who is next of kin and that applies strictly. Needless to say, a critical issue is how any such directive would be enforced. Obviously you, being dead, can't do that, and documents don't simply crawl out of desk drawers and walk themselves into court houses after your death either. Your wishes will never be enforced unless someone takes it upon themselves at the critical moment, to take action, and in that case, local law determines under what circumstances that person's statement regarding your wishes will be honored. Often, the person who might step up to take action doesn't learn of your death and of the location of your body until it is too late. If you die in circumstances where your identity is unknown, or where no relatives can be located and no directives can be located, some public official or whomever else ends up in possession of your body (often a corner) will have to decide for themselves what to do without your input. | Mere ideas are not, as others have said, protected by copyright. However, the police officer in such a situation may have a duty of confidentiality, particularly if s/he is informed that the contents of the phone are confidential. For example the "Officer's Code of Conduct" of Canton Ohio, says: Whatever a Police Officer sees, hears or learns of that is of a confidential nature will be kept a secret unless the performance of duty or legal provision requires otherwise. Members of the public have a right to security and privacy, and information obtained about them must not be improperly divulged. Many police departments have similar codes of conduct or policies. Such a policy might apply in the circumstances described in the question. In this page on "Confidential information" posted by the TaylorWessing law firm, it is said that: There are three circumstances in which the disclosure of information gives rise to an obligation of confidence: An obligation imposed by contract – for example, non-disclosure agreements. An obligation implied because of the circumstances of disclosure – this is determined on the basis of whether a reasonable man standing in the shoes of the recipient of the information would have realised that the information was being given to him in confidence. An obligation implied because of the special relationship between the parties concerned – for example, employer/employee relationships. The best way of ensuring that confidential information is recognised and treated as such is by contract. If no express requirement for confidentiality is imposed, the manner in which the discloser treats the information can be held as indicative of its level of confidentially. Talking about information in public places, for example, would cause the recipient to assume it was not confidential in nature. An action for breach of confidence is based on the conscience of the recipient who must have agreed or known that the information is confidential. Thus an action for breach of confidence can be brought against the original recipient of the information and any subsequent recipient who becomes aware of the fact that the information is confidential. An action for breach of confidence may be brought against a person who has used or disclosed, or threatened to use or disclose, confidential information without permission. A police officer engaged in a search of confidential documents, whether found on a phone, on a computer, or in a filing cabinet, is in a "special relationship" with the sub ject of the search, and the "circumstances of disclosure" are unusual. Use of such information for private, personal gain unrelated to any police function might be held to violate an implied duty of confidentiality, particularly if the officer is informed of the confidential nature of the documents. If the documents contain or constitute trade secrets, unauthorized use will give grounds for a lawsuit. This would not apply to proper use within a police investigation or criminal case, but it would apply to private use or disclosure by the officer. in "Release of personal information to police: your privacy rights" from the Government of Ontario it is said that: Ontario public sector organizations, such as provincial ministries and agencies, municipalities, schools, and transit systems, are required by law to protect your personal information and to follow certain rules when collecting, using, and disclosing your personal information. This document is primarily about when other governnment agencies can release personal information to law enforcement, but it might be taken to imply a similar obligation to respect privacy being imposed on law enforcement officers. In this page and other linked pages the UK metropolitian police indicate that they are subject to the Data Protection Act 2018 This is closely related to the GDPR. This restricts processing of personal data to lawful purposes. In the absence of the consent of the person searched, I doubt that use of information for personal gain having no connection with a police investigation would constitute a lawful purpose. I have not found an authoritative source, nor a court case, in which the situation described in the question, nor any closely similar situation, is addressed or decided. |
Probate vs Non-Probate Assets for Wills New York State (USA) here. I'm having trouble understanding the difference between Probate and Non-Probate assets, from a Will/Testament standpoint. I believe non-probate assets are specific gifts you call out -- in the Will -- that are designated for specific beneficiaries. Little Jimmy gets the old pair of lucky Yankees socks, Little Suzie gets the old, decrepit, half-eaten turkey sandwich that Babe Ruth once took a bite out of, etc. I believe probate assets are simply anything you (the Deceased; the Testator) owns prior to death that is not specifically called out as a non-probate asset and designated to a specific beneficiary. If that's right, then I'm guessing things like: 401ks/Roth IRAs Life Insurance policies Savings accounts Stock market investments Houses, land & real property ...could all be probate assets if one does't specifically gift them to a Beneficiary? And if my understanding is incorrect, then I could use some course correction and steering here. Thanks in advance! | I believe non-probate assets are specific gifts you call out -- in the Will -- that are designated for specific beneficiaries. Little Jimmy gets the old pair of lucky Yankees socks, Little Suzie gets the old, decrepit, half-eaten turkey sandwich that Babe Ruth once took a bite out of, etc. This is incorrect. Every transfer arising from a will is a probate asset, because probate is the formal legal process of determining if there was a will, and if so, which will applies, and then distributing the assets of the person who died in accordance with that will (or with the determination that there was no will). I'm guessing things like: 401ks/Roth IRAs Life Insurance policies Savings accounts Stock market investments Houses, land & real property ...could all be probate assets if one does't specifically gift them to a Beneficiary? A 401k/Roth IRA with a beneficiary designation (other than the owner's estate), a life insurance policy with a beneficiary designation (other than the owner's estate), a savings account or stock account or investment with a joint owner or a pay on death beneficiary (other than the owner's estate), or real property with a transfer on death beneficiary or a joint ownership with right of survivorship is a non-probate asset. Any of those assets if there is no beneficiary designation, if there is no pay on death beneficiary, if there is no joint owner with right of survivorship, if it is not owner through a trust, and if there is a beneficiary designation that names the owner's estate, is a probate asset. The General Rule Anything subject to allocation and distribution in a will, or by intestate succession is a probate asset. Specifically devised property in a will is a probate asset. A non-probate assets is something transferred pursuant to a beneficiary designation, pay on death provision, joint ownership with right of survivorship, tenancy by entireties, or provision in a trust existing prior to the death of the decedent. These assets are not dealt with through the probate court process. However, if a will purports to specifically devise property that has a beneficiary designation or pay on death beneficiary or is owned by a trust or is in joint tenancy with right of survivorship, then the non-probate transfer prevails over the inconsistent language in the will. See also: Examples of Non-Probate Transfers Used in Estate Planning The following are examples of non-probate transfers commonly used in estate planning: Passing property to beneficiaries through a living trust. Leaving funds to a beneficiary named on a pay on death account or transfer on death account. Leaving funds to a beneficiary named on a life insurance policy. Leaving funds to a beneficiary named on an IRA, 401k or other retirement account. See financial planning. Holding title to property as joint tenants or tenancy by the entirety. Leaving motor vehicles to a transfer on death beneficiary. Gifting assets to heirs during your lifetime so the assets do not pass as part of your estate. Executing and recording a transfer on death deed naming a beneficiary to inherit your real estate. (Source) The American Bar Association devotes a full chapter length treatment to discussing the difference. It begins: Upon death, a decedent’s estate includes both probate and nonprobate assets. Probate assets are those that pass to persons identified in a will (see Chapter 3 for a discussion of wills), whereas nonprobate assets pass outside an estate’s administration. Examples of traditional nonprobate assets include qualified and nonqualified retirement plans, individual retirement accounts, and life insurance policies. However, nonprobate assets can also include certain checking and savings accounts, certificates of deposit, investments, and even real property, but only if a beneficiary is designated and state law allows for such an asset to pass outside of an estate’s administration. Nonprobate assets are frequently referred to as “will substitutes.” | The seminal case on this was Riggs v. Palmer, 115 N.Y. 506 (1889). A grandson stood to inherit a sizeable estate from his grandfather and, concerned that the will might change, killed his grandfather. In the united-states most jurisdictions have passed "slayer statutes" to prevent the killer from taking under the will. In Maryland, one who "feloniously and intentionally kills, conspires to kill, or procures the killing of the decedent" is barred from inheriting or otherwise benefiting under the will. See Md. Est. & Trusts Code § 11-112. Manslaughter is a felony in Maryland. See Md. Code Crim. Law § 2-207. So if a particular instance of manslaughter involves intent (e.g. the grandson intentionally kills the grandfather following some adequate provocation), the slayer statute should bar taking under the will. But if it doesn't, the killer wouldn't be disqualified. Wikipedia adds: The Maryland slayer rule is harsher than most other states. In addition to prohibiting murderers from inheriting from their victims, Maryland's slayer rule prohibits anyone else from inheriting from murder victims through their murderers; Maryland's slayer rule is thus similar in structure to corruption of blood. For example, a mother leaves her son $50,000, and leaves her son's child (her grandchild) $100,000. She leaves her residuary estate (i.e., whatever else is left of the estate) to her daughter. If the son kills his mother, then under Maryland law, the son's child will inherit the $100,000; however the son's $50,000 (which is also the indirect inheritance of the grandchild through his father), is not available under Maryland law to either the son, or his child. The $50,000 becomes part of the mother's residuary estate and goes to the daughter. | This is complicated. This is state dependent, and as of time of writing, you haven't disclosed what is the relevant state. This is something you should hire/retain a (divorce) lawyer, and discuss with them. The law can be messy; divorces are always messy. The answer is the most common answer in law: it depends, on specific facts. See above, get a lawyer. The first question is "is the money in this investment account a shared asset that I have any claim to". The answer is "it depends". What state are you in, and where did this money come from? Depending on various factors, the answer might very well be "no", in which case, this money (and it's loss) may not affect you at all. If you do have some claim to this money, then it gets even more complicated. "Can this asset be retrieved in a court proceeding and say that he was squandering money?" Maybe, kinda. Technically no (because of the way you phrased that). I'll explain. In a divorce, "shared" assets are divided equitably (Note "equitably" does NOT mean "equally") based on numerous factors, often on a case-by-case basis, and which factors depend on the state. (Therefore, the lawyer you retain should be licensed in the state you/your husband are filing for divorce in). Before your divorce, both sides have (in general) the right to use shared property. They do not have the right to intentionally damage or destroy said property. One complication/grey area is normal use that degrades or damages the value of said property. For example, imagine a classic sports car. Many people drive them for fun; this is normal use. On the other hand, using a classic sports car decreases the value. Is using the sports car unreasonable damage? This is a fact based determination to be made based on specifics. Can this asset be retrieved in a court proceeding [if I] say that he was squandering money? (correction to what I think think you meant). Maybe, but probably not. You can say whatever you want in court, but what matters is what you can prove, as you are the bearing the burden of proof due to making the accusation (and you must prove it to the standard required by the court in your case for your particular motion/accusation, which might be the standard of "the balance of probabilities/more likely than not" or "clear and convincing evidence", or something else; it's complicated, fact dependent and state dependent, so get a lawyer). You don't need to prove that he lost money. If he was day trading before, the fact that he was day trading after the separation is not held against him; day trading is risky, therefore you have to prove that he intentionally lost money (and, potentially, that he intentionally lost money to deny money to you in the divorce, as opposed to e.g. tax loss harvesting). I would recommend hiring a divorce lawyer and discussing it with them. | Certain things are your separate property, and only you can sell them (but you are also responsible for them). That would include things acquired before the marriage; also anything inherited by just one of you, or gifts provably given to just one of you. Other things are community (marital) property, including your pants and probably your dog. Writing your name on the object or a piece of associated paper doesn't really matter, what matters is how it was acquired. One party can sell their half-interest in joint property, but nobody (?) would buy a property interest in a dog, they would buy the dog. For another person to actually buy a dog, they would have to buy a 100% interest in the dog, meaning that you would have to agree to the sale. When it comes to property with a solid title system, such as real estate, one party cannot sell the whole property without the consent of the co-owner. However, a co-owner could petition the courts to force a partition of the property, where the courts would order that the proceeds be divided equitably. Ohio law on division of marital property is spelled out here. Getting a lawyer is really the only reasonable solution. You can't just "put a block" on selling stuff. If you want the tools, somebody has to collect the tools and take care of them, and they can't just break in to the house in the middle of the night to do this. | The attorney's responsibility is framed in terms of the interest of the client, which is not always money. If the trust has some social agenda, that rather than the dollar amount would be the attorney's responsibility. I would want my property to not be subdivided into smaller lots, and I would communicate that interest to my attorney, but that's just me. Since we don't know all of the facts (about you and the trust), all we can say is that "interest" and "duty" are not always about dollar amounts. | Wills typically handle this by specifying a survivorship period. Such a clause may say, in effect, "I leave all my assets to my spouse, provided they survive me by at least 30 days, and otherwise to beneficiaries X,Y,Z." That way, if your spouse dies shortly after you, your assets go to X,Y,Z, rather than going to your spouse and then to their beneficiaries. Another issue this avoids: suppose you are in an accident together, and by the time rescuers arrive, you are both dead. Without a survivorship period requirement, courts might have to try to determine whether one of you survived a few seconds longer than the other, in order to decide whose beneficiaries get the assets. That could be difficult and error-prone, not to mention gruesome and upsetting to loved ones. But with such a requirement, it's not necessary. The linked article notes that in many jurisdictions, if you don't specify a survivorship period, there may be a statutory period that applies automatically. | Powers of Attorney die with the principal Once the subject dies, they are null and void. For a person who dies intestate, the next of kin can apply to the court for an Administrator (not an Executor) to be appointed. This may be a person all the beneficiaries agree on or it may be a government public trustee. | There are several forms of notarized documents, the most common of which are affidavits (which are written statements of a person made and signed under oath) and acknowledgements (which is a notarized statement that a document was signed before a notary, usually used for documents related to real property). There would be no legitimate reason I can think of to notarize an offer letter, and the fact that you want to do that probably means that you are confused about some other aspect of the law that would make you think that you would want to or need to do something like that. A more common thing to do, for example, in anticipation of a lawsuit, would be to prepare and execute an affidavit which states that the letter, attached as an exhibit, was signed by you, and anyone else that you have personal knowledge signed it, for your signature before a notary. A notary is not allowed to execute an affidavit (or a very similar document called a verification which is a very short document saying that the facts stated in a single document asserting a claim in a court case are true and correct in a form substantially similar to an affidavit) if it is signed outside the notary's physical presence (in theory because the notary administers an oath before you sign it). An acknowledgement can be executed by a notary if the person who signed the document comes before the notary in person and acknowledges that it was signed by him or her, even if the notary was not there when it was actually signed. The notary would state the date that you acknowledged it in person to the notary in the acknowledgement and would not make any statement regarding when it was actually signed. There is special formalized legal language that must accompany each kind of notarization, which is called the "jurat". Then the notary signs and dates the jurat in the appropriate place and applies a notary seal near the jurat in the indicated location (if any) mark "L.S." for "location of seal" in latin. |
What law causes Web sites to prohibit EU users under 16 years old? Many Web sites, including Stack Exchange, do not allow users under 16 years old from the European Union. This includes sites that do not have (or at least are not intended to have) content considered inappropriate for children. American sites often do this at age 13 because it is so difficult to comply with COPPA; what EU law causes this? | It's probably due to GDPR. You will see that around 2018-05-25 when GDPR came into force, many US-based websites changed their terms of service to increase the age requirement from 13 (age below which the U.S. COPPA law applies) to 16 for European users. For example, here are Stack Exchange's terms of service from 2018-05-02, mentioning 13 years, and here is the version one day later mentioning 16 years. The GPDR allows companies to process personal data under a variety of legal bases, such as “legitimate interest”, “necessary for performing a contract”, or “consent”. But children are not able to give consent in this context. If a website wants consent from a child for some data processing, Art 8 GDPR requires the service to make “reasonable efforts” to check with the parents first. This reasonable effort is more effort than just banning children from using the services. The GDPR itself does not define exactly when someone is a child for these purposes – it lets individual EU member states define the exact age limit, which may be anything between 13 and 16 years. Thus, websites that definitely do not want to have to comply with Art 8 GDPR take the upper bound of that limit and mention in their terms of service that the service is only intended for persons aged 16 or older. The text of Art 8 GDPR is: (1) Where point (a) of Article 6(1) applies, in relation to the offer of information society services directly to a child, the processing of the personal data of a child shall be lawful where the child is at least 16 years old. Where the child is below the age of 16 years, such processing shall be lawful only if and to the extent that consent is given or authorised by the holder of parental responsibility over the child. Member States may provide by law for a lower age for those purposes provided that such lower age is not below 13 years. (2) The controller shall make reasonable efforts to verify in such cases that consent is given or authorised by the holder of parental responsibility over the child, taking into consideration available technology. (3) Paragraph 1 shall not affect the general contract law of Member States such as the rules on the validity, formation or effect of a contract in relation to a child. | In the U.S. Those stories could constitute "obscenity," in which case they could violate all sorts of federal and state laws. I was surprised to discover on this DoJ page: 18 U.S.C. § 1465 and § 1466: It is illegal to sell and distribute obscene material on the Internet. Convicted offenders face fines and up to 5 years in prison. It is illegal for an individual to knowingly use interactive computer services to display obscenity in a manner that makes it available to a minor less than 18 years of age (See 47 U.S.C. § 223(d) –Communications Decency Act of 1996, as amended by the PROTECT Act of 2003). It is also illegal to knowingly make a commercial communication via the Internet that includes obscenity and is available to any minor less than 17 years of age (See 47 U.S.C. § 231 –Child Online Protection Act of 1998). Under some state laws merely authoring or possessing obscene material is a felony. However, if the material is not obscene then it is actually protected by the first amendment. In fact many public schools (at least when I was growing up) required us to read "literature" (e.g., The Color Purple) that included descriptions of child rape and sexual abuse. Descriptions of purportedly actual sexual abuse of minors are also common in the testimony and published biographies of abuse victims. In the U.K. Such obscene stories are also illegal in the U.K. The relevant law is the Obscene Publications Act 1959. The Crown Prosecution Service provides information on the specific application of that and related laws. | Disney's help page on this says I don’t want to provide my birthdate or gender. What can I do? Providing a birthdate is required for all Disney+ accounts/profiles while a gender is required for all accounts/profiles over the age of 13. Note that for gender submission, you may elect “Prefer not to say.” If you do not wish to provide your birthdate or gender, you may cancel your account by visiting your Account page or by contacting Disney+ Support. It's reasonable to provide proof of age: COPPA in the US requires it to protect those under 13. And you don't have to give them your gender. | There are not enough facts to draw a conclusion First, it’s not clear that the document you signed amounts to a contract. For example, what consideration did the school give you in return for the permission you gave them? Providing you with an education doesn’t count - they were legally obliged to do that already. If it is a contract then whether and how it can be revoked would depend on the terms of that contract witch I’m guessing you don’t have a copy of. Notwithstanding, as a minor, you have the right to void the contract until a reasonable time after you turn 18. Even if it is now many years since that happened, it might be reasonable since you only just discovered the website. If it isn’t a contract, then it would be revocable at any time. Practicalities Make a fuss and they may take the photos down even if they are not obliged to. They presumably have plenty of photos of kids who aren’t you and aren’t complaining and if you make it so it’s easier to change the website than to deal with you, thy’ll change the website. I suspect their inertia is because they once paid a web developer to create the site, it has never since been updated, they don’t know how to do it, and they don’t want to have to pay someone to find out. Otherwise, why would they have photos of ex-students rather than current students? If so, an offer by you to cover the costs, might solve your problem. | Each directives page on eur-lex has a "national transposition" page. For example, directive 2009/65/EC, concerning UCITS, is available at https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:32009L0065. There is a navigation box at the top left with several relevant pages: Text Document information Procedure National transposition Summary of legislation (Before the recent site redesign, these were shown as tabs across the top of the page, so for the lack of a better term, I will call these "tabs.") The Document information tab shows, among other metadata, relationships with other EU acts. One useful section on this page is the All consolidated versions section, which is a set of links to consolidated versions of the document, indicated by date. The answer to your question is the National transposition tab, which shows "National transposition measures communicated by the Member States." It is worth noting the disclaimer: The member states bear sole responsibility for all information on this site provided by them on the transposition of EU law into national law. This does not, however, prejudice the results of the verification by the Commission of the completeness and correctness of the transposition of EU law into national law as formally notified to it by the member states. The collection National transposition measures is updated weekly. The list of national acts is in the form of links, which lead to pages that seem designed to present the text of the national legislation, but in the examples I have checked say nothing more than "Text is not available." Perhaps there are some instances, or will be in the future, where these contain links to national legal information sites. As it is, there is enough information to enable one to search the national sites to find the relevant legislation. | However, if a website is based in the US and the terms of service say that the law governing the terms is US law, how can GDPR have any affect? It is unlikely that the EU will be able to enforce financial penalties against a company with no presence in the EU. But they could for example block your website in the EU, depriving you of your EU user base. The actual measures that they could or would take against such a company are still unclear, since the GDPR is quite new, and there has been no action under the GDPR against foreign companies. I'm not a lawyer, but I've signed many contracts in my life and nearly all of them have some form of "governing law" clause. The governing law clause in a contract identifies the law that will be used to interpret the contract and to resolve any disputes arising from the contract. The law identified in the clause does not become the sole law governing every aspect of the relationship between the parties, however. For example, a business in New Jersey could have a contract with a client in New York with a clause specifying New Jersey law as the governing law of the contract. But that does not mean that New York's consumer protection law doesn't apply to the transaction. | It may depend on what offences are suspected of being committed. One example is: In the united-states under 18 U.S. Code § 2258A an Electronic Service Provider (ESP) is required to report apparent violations of sections: 2251 [Sexual exploitation of children] 2251A [Selling or buying of children] 2252 [material involving the sexual exploitation of minors] 2252A [material constituting or containing child pornography] 2252B [Misleading domain names with intent] 2260 [sexually explicit depictions of a minor etc] The report is made to the National Center for Missing & Exploited Children (NCMEC) who in turn forward the information to the relevant domestic or foreign law enforcement agency. The ESP is protected from commiting distribution or related offences when making the report by virtue of subsection (g)(4): Permitted disclosure by a provider.— A provider that submits a report under subsection (a)(1) may disclose by mail, electronic transmission, or other reasonable means, information, including visual depictions contained in the report, in a manner consistent with permitted disclosures under paragraphs (3) through (8) of section 2702(b) only to a law enforcement agency described in subparagraph (A), (B), or (C) of paragraph (3), to NCMEC, or as necessary to respond to legal process. | Yes, you could do this be means of the EULA, provided you are not in the EU yourself. You only have to comply with the GDPR if you are offering a product or service to people that are in the EU. If you are making it clear that whatever you offer is not available to Europeans, you make your site exempt from the GDPR. |
Can I share a copy of Adobe Standalone Flash Player? As you all know by now, Flash is dead. However, people still want to play flash games. People used to be able to download the standalone adobe flash player to keep playing games flash games, but apparently they've removed the download page for it. I still have a copy of the flash player and would like to share it with Flash game fans. I won't be profiting off of it, and I will credit Adobe (it's called the Adobe Flash Player after all, so it's impossible not to give them credit). Would it be legal for me to distribute the Flash Player online? This is a United States question by the way. | No. Copyright does not have exemptions for obsolete works, use with credit, or non-commercial use. Depending on the purpose for the distribution, this could be fair use, but it is unlikely that a court will consider this fair use when the only reason is for other people to be able to play games. Perhaps you could try contacting Adobe; it's possible that they will give you a license to distribute the Flash Player. This isn't directly relevant to the legal aspect of copying Adobe's Flash Play, but to answer the underlying issue of legally playing Flash games, perhaps you/others could try Gnash, a libre reimplementation of Flash. I have not used it, but apparently Gnash can run some Flash software without using Adobe's player. | Each episode of the show as a whole, and all the individual images in it, are protected by copyright, but the idea of a holophonor, or indeed any idea, is not. The more closely anyone else's drawing of a gadget resembles one from the show, the more likely it would be to be found to infringe copyright. The same is true of a character image. The more distinctive and original the image, and the more closely someone copies it, the more likely a finding of infringement would be. | In Australia at least I am not sure that the usage you describe has ever been legal. The University of Melbourne Copyright Office sets out when you may copy a television program for personal use and fair dealing for research and study. In short for personal use, you may: use any format you like - if you can find a working VCR; go for it. Not lend or sell the material; it must be for your own private use. This means you must be there when it is displayed and it must be in a private place. For example, you can invite friends to your place or go to a friends place and watch it together. The thing you are copying must be legal - you must have bought the original, have a current pay TV subscription (at time of recording) or it must be a free-to-air broadcast. | Yes, such a site can be created without infringing copyright Facts about the game are facts.They are not protected by copyright. Criticism of, and comment about the game, is an activity protected by the US First Amendment. Making such comments is very likely to be fair use under US copyright law. In general the author of a work, such as a book or a game, or the maker of a product, has no right to grant or withhold permission to discuss or comment on the work. This is true not only under US law, but also in the law of most countries (perhaps of all countries). The name of the game might well be protected as a trademark. But that does not allow the trademark owner to prevent discussion of the game, clearly identified by the name of of the game. As long as nothing is being sold or rented, or advertised for sale or rental under that name, and there is no attempt to claim that the site is sponsored or approved by the trademark owner, and there is no likelihood of confusion, there is no trademark infringement. This is true under US law, and under the trademark laws of most other countries. A wiki is a specific technology. It can be used for community discussion, or for a company's internal documentation, or for any of many other purposes. Wikipedia has popularized this technology. Not all community discussion sites are wikis, however, nor are all wikis for community discussion. Just as not all novels are books printed on paper, and not all books are novels. In any case, setting up a wiki about a topic such as a game, a movie, or a novel does not require permission from the owner or creator of the game or of any trademarks associated with the game or work. The same would be true for a discussion forum about such a game or work that is not a wiki. If a wiki uses excessive quotes from game dialog, or uses the game's logo without permission, or reproduces other game assets, such as character art, maps, and the like without permission, that might be copyright infringement. | Yes One could certainly put up a site whose only content was a link to another domain. And I can't find any law which this would violate. If the link is a "deep link", and if it bypasses a log-in page, while the other site is so designed that all access is intended to go through the login, I believe (but cannot at the moment verify) that the owner of the other site could claim that this violates their copyright. In any case it is not a good idea.But a link to an appropriate page should have no problem, nor should pointing your domain at an appropriate entry page. Therefor, since simply re-pointing a domain should have the same effect as simply linking, in those cases where it works at all, it should be legal. Doing it with an iframe, which would truly open another site within your site, may not be if the other site forbids such use, as in the ToS. The case law on that is not settled, but many sites object to it, as the answer by @BlueDogRanch points out. I don't see a good reason why one would want to do this, but that isn't the question. Copying the HTML of another site and modifying the URLs while keeping the content the same would pretty clearly be a copyright infringement, besides being a lot of work to little obvious point. It also isn't what the question asked about. Building a one-page site that has only a simple link or a redirect would clearly be legal, and would serve the purpose of causing your domain to lead a user to another site, but it isn't, strictly speaking, what was asked about either. | From the perspective of US law: Scenario 1: Removing the watermark is perfectly legal, obviously. You own the copyright. Scenario 2: Abandonware is not really a thing in the US when it comes to copyright (and the Wikipedia article you linked says this.) Even if the company went out of business, the copyright almost certainly went to somebody - the former owners, the creditors, etc. As far as the Internet Archive goes, they are taking advantage of an exemption in the DMCA's anti-circumvention provisions, along with the copyright exemption found in 17 USC § 108. But both of these exemptions require you to be a "library or archive" to take advantage of them, and you are not a library or archive, so you cannot take advantage of either. As a practical matter, if the software is really abandoned it's unlikely that anyone will actually come after you for infringement, but that's not quite the same as it being legal - you could be on the hook for up to $150,000 in statutory damages per work infringed, if the owner does sue you. You could attempt to claim fair use, of course. If the image is abandoned you might get a favorable result on factor 4 of the fair use test (the effect on the market for the original) since there's no market if nobody can find the owner. But it would depend on the other factors; that alone wouldn't get you fair use. Scenario 3: I'm not sure where you get the idea that downloading a copyrighted image to your desktop is somehow protected. It isn't automatically legal to save a copy of something just because it's on the Internet. And the existence of a watermark may indicate that someone wanted to prevent the file from being copied. The website containing the image will likely have terms of use, which may indicate whether or not you're allowed to make a copy. For example, Stack Exchange's TOS says in part: Subscriber may download or copy the Content, and other items displayed on the Network for download, for personal use, provided that Subscriber maintains all copyright and other notices contained in such Content. | I'm assuming that you are not seeking to change the license, and so it will remain GPLv3. As long as you've built on the original software, that license still applies. You also need to keep the previous copyright notices, including the names of the original people. Assuming that, everything you're doing is legal, which is what's on topic here. There is some etiquette around forks (which is what you're doing), which would be on topic at the Open Source Stack Exchange. I'm puzzled by your desire to have a different license text. You can't change the license from GPLv3, so that has to stay the same. (If the original has GPLv3 "or, at your option, any later version", you can drop the any other version text if you like.) | An album from 2011 is pretty clearly going to be protected by copyright. Downloading such a work without permission would be copyright infringement, and therefore unlawful. However, it is not a crime in the US. If the copyright owner or the owner's agent learns of the download, you could be sued. Whether the owner would choose to bring suit is hard to say. However, for some content the Internet Archive has a program where a digital copy can be "borrowed" or "checked out" for a limited period of time. This is supposed to work like a library. The IA has made arrangements that will authorize this, or it is supposed to have done so. You only retain use of such a download for a limited period of time. |
Do movie studios need permission to use an AI-recreation of an actor's voice in their works? It is mentioned in this question that James Earl Jones, the voice of Darth Vader, has given permission to Disney to use an AI trained on his previous performances to recreate his voice for use in future Star Wars productions. If Jones had explicitly disallowed this, or if he remained silent on the issue, could Disney (who I assume holds all rights to the character 'Darth Vader') proceed anyways? | Under Cal. Civ. 3344, Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. So Disney can own the character but JEJ owns the right to his voice. Here is a more general overview of California right-of-personality law. | It depends on the nature of the quote. Quotes from Buddha, Aristotle and Lincoln are out of copyright. Otherwise, the two basic questions are: who put that quote in fixed form, and is copying it "fair use"? If for example you happen to be at a political rally where a politician makes a noteworthy extemporaneous quote, you could be the copyright holder, because copyright law protects the person who first puts the work into fixed form. (If he's reading from prepared text, the speech writer or his employer would hold copyright). You can also quote small bits from any source, such as "Don't think about your errors or failures; otherwise, you'll never do a thing". It would not be "fair use" to chop up a novel into a sequence of 2-3 sentence quotes. This assumes that you manually assemble the quotes from legal sources, such as a print copy of "The Martian". Whether or not you can legally pull the data from an online source depends on the terms of service for that site. That lets out brainyquote as a source, so check the TOS for whatever source you get the material from. | Copyright infringement requires that you actually copy elements from an earlier work produced by a different author. If you created a similar, or even identical, work independently, it is not copyright infringement. When considering whether or not infringement has occurred, the court is likely to consider whether the defendant could reasonably have had access to the plaintiff's work. If the court finds that they could have, then the defendant would be required to produce evidence of original authorship. Consider the My Sweet Lord/He So Fine case, where the court found the defendant had subconsciously copied the plaintiff's song. Had Harrison been able to produce evidence of original authorship, the judgment could have been different. In your example, it is unlikely that an suit in copyright infringement could be decided against you, as you've stated the text is generated randomly. However, more evidence of this randomness might be required to support your case. Of course, whether a computer or automated process can produce works independently is still questionable; I'm not aware of cases that have tried this. The US Copyright Office has said that Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Of course, whether this has a bearing on your particular scenario is undecided, and I'm not sure how it would be decided. It is almost certain that the worst case outcome would be an injunction requiring you to cease publicising the product, or perform reasonable checks prior to publication to ensure that the product of your program infringes on works; it would be unlikely that you would have costs ordered against you, especially if the program is truly random, and the random text was given as much, or more, publicity than the coherent text. | germany I am reasonably sure that works like this would be Public Domain, i.e. not copyrighted in the first place. In Germany, copyright (or more precisely, Author's Right) can only be held by a natural person, which is a legal term of art that essentially means "human being". There are two groups of natural persons involved here: the programmers and the creators of the works which are part of the training set. However, I can't see how either group could have a reasonable claim of copyright. Note: there have been similar discussions about GitHub Copilot, an AI that writes code for you. It is my understanding that the process used by GitHub Copilot is roughly comparable to the process used here. With GitHub Copilot, there have been instances where significant snippets which are part of the training set have appeared in the output with only minor alterations. In this case, it is likely that the original author will have copyright over that portion of the output. However, IFF a human being were actually involved in selecting specific works, then there is probably a copyright based on the creative decision of selecting this particular work and rejecting all the others. This is similar to the classic textbook example of a driftwood sculpture: the creative process here is not creating the sculpture but choosing to pick up this particular piece of driftwood instead of the hundreds of others on the beach. So, if you simply generate these works and publish all of them, there is no copyright. If you generate a large batch and then select a certain number, then the person who made the selection might hold a copyright. | Alice has been developing her own enhancements, and they're pretty similar to Bob's. Neither Alice nor Bob has copied the other's enhancements, so neither has violated the other's copyright in the enhancements. Whether that could be proved in court is another matter, of course, but since the original work is licensed under creative commons the question unlikely to arise in court. Would Alice be prevented from coming up with enhancements to her own game if other people could prove they thought of and released the idea first? No. Copyright does not protect ideas. It only protects a particular expression of those ideas from being copied. Theoretically, if two authors come up with identical 500-word descriptions of something and can establish that each did so independently, neither has a claim against the other. The practical problem there, of course, is that it would be impossible to prove such a thing. Could Alice outright claim Bob's "Adapted Material" because he developed it on her original work? Assuming that in publishing his adaptations Bob followed the terms of the creative commons license with respect to the original work, Alice's only claim would be that he copied her adaptations without following the terms of the license. If Bob can show that he did not do so, her claim would fail. In a comment, you wrote: Suppose Alice went ahead and intentionally, somehow provably ripped off Bob's "Adapted Material" because she liked the content so much, does Bob reserve any rights on his adaptation, or is Alice able to commercialize the work that Bob did in extending her original work? If we assume that Bob complied with the license of the original material, we know that he licensed his adaptations under "the identical terms," so Alice would be able to use Bob's adaptations under those terms for non-commercial purposes. Since the assumption here is that Alice provably copied something of Bob's, I think it is fairly clear that she would be liable for damages if she exploited that material commercially without paying royalties. | The subtitles would be protected by copyright, in general. In the US, temporarily downloading the subtitle text to create statistics would, I think, constitute a fair use. It is transformative, it does not serve as a substitute for the original sub titles, and it does not harm the market for the film or for the sub titles. The existence of the API for the subtitles might or might not be evidence for fair use, depending on who supplied the data and under what terms. In other countries that have an exception to copyright for analysis and criticism, such a download might be held to come under such an exception. One cannot be sure until there is case law on the point, and I know of none. The ruling might be different in different countries. Statistics (words and their counts) about the subtitles for a particular film or video would be facts, and as such would not be protected by copyright at all. A text discussing those facts would be protected. | There is no case law as yet However, the most likely situation is that there is no copyright in the original works because they are computer-generated. There is certainly copyright in the code that created the art but the output of that code, the art itself, would probably not be subject to copyright. Copyright only exists in art created by humans. The US Ninth Circuit has held that animals cannot create copyrighted works. Subsequently, the US Copyright office has rejected applications for registration (a prerequisite to a suit in the US) of computer-generated art because it “lacks the human authorship necessary to support a copyright claim.” While this position has not been tested in the courts, I don't think they are any more likely to grant copyright to a program than they were to a monkey. What's going on? The OP states that there is litigation: there isn't. What there is, is a DCMA takedown request from Larva Labs. If this is complied with that will be the end of the matter; if it isn't then there may be litigation. However, before Larva Labs could sue CryptoPunks in the US they would first need to get a writ of mandamus to force the USCO to register it. If they try and fail then there will be a legally binding court decision that Larva Labs don't own the copyright in any of their computer-generated art. Which kills their business model and, presumably, them. This would be a very high-risk move. They may choose to sue in a jurisdiction where registration is not a prerequisite, however, that court would still need to be satisfied that there was a copyright that could be breached. So that's just a different take on the same problem. I have ignored the issue of NFTs as these are legally problematic in their own right and irrelevant to the main question. However, the NFT and the artwork are not the same thing. | I can't comment on what the legal situation would be in your home country, but as a matter of U.S. law, the hypothetical scenario you've described is not illegal. First, because you aren't a U.S. citizen and because you aren't operating in the United States, the U.S. government probably has no jurisdiction over you, your website, or your conduct. Even if it did, the most relevant statute, 18 U.S. Code § 1017, would not apply. The statute prohibits the "fraudulent or wrongful" use of the FBI's seal. But "fraudulent" and "wrongful" generally refer only to conduct where one uses deception or other means to obtain money, property, etc. to which they have no lawful entitlement. United States v. Enmons, 410 U.S. 396, 399 (1973). Because you aren't using the seal to obtain anyone's property through deception, this use would not fall within the statute's proscriptions. Even if the government sought to prosecute you, you would have a valid First Amendment defense. The First Amendment protects the right to free speech, and it does not allow statements to be criminalized merely because they are false. United States v. Alvarez, 132 S. Ct. 2537 (2012). This outcome should be unsurprising to most U.S. observers. I think most people would agree that the U.S. obviously cannot prosecute a Hollywood producer for making a movie dramatizing the FBI's efforts to shut down the Pirate Bay, even if it displayed the FBI's seizure message on a monitor in the course of the movie, and even if it showed the seal being used on a completely fictional website. The hypothetical you're describing is not materially different. In both cases, the seal is being used to falsely create the impression -- for entertainment purposes -- that the FBI has shut down a website. Saying false things for entertainment purposes is not a crime in the United States. |
Why is Age of Consent set at a specific age? Suppose a 15 year old girl is wed by her own parents to a 30 year old man and she gives her consent. In most US states this marriage will not be recognized and the man would likely be prosecuted for statutory rape. On this Wikipedia says.... "Statutory rape laws presume coercion, because a minor or mentally handicapped adult is legally incapable of giving consent to the act." But if her parents waited only a few months till her 16th birthday then all of a sudden her consent is recognized by the state and the marriage is valid and her husband is safe from prosecution. Why do the states set a specific age? Why don't they judge each marriage license application on a case by case basis (perhaps by interviewing the minor when their partner is an adult)? | I was initially going to vote to close this as a political rather than a legal question, however, I think there is scope for separating out the two dimensions. Our society makes a distinction between children and adults by giving them different legal rights, obligations and protections. If you think about it, there are a lot of things beyond sexual activity where the law does this: voting, drinking, military service, compulsory schooling, legal culpability etc. What things are subject to legal restriction is a political distinction. Now, there is no reason politically why these laws could not have been drafted to say "children can do this, adults can do that" and leave it to the courts to decide who is a "child" and who is an "adult". Biologically and emotionally people reach maturity at different ages so this is perfectly sensible. It might even be more just. However, justice is only one thing that we require of our legal system. Among the others are certainty and efficiency. Providing a bright line based on birth date gives certainty. Not requiring the court to deal with this on a case-by-case basis increases efficiency - justice is not free. This is why jurisdictions use age as a proxy for adulthood. As to why they choose any particular age, that is a political question. | Blaire Bayliss reviews the law in "The Kids are Alright 😂🍆🍑: Teen Sexting, Child Pornography Charges, and the Criminalization of Adolescent Sexuality" (2020) Colorado L. Rev. 251. The article uses the term "sexting" to mean the exchange of sexually explicit messages or images between individuals using electronic messaging. When images, this can constitute child pornography under federal law. Also (from cyberbullying.org), States that do not have a specific sexting law often rely on existing statutes when dealing with teen sexting. All states, for example, have child pornography or child exploitation laws that prohibit sending, receiving, or possessing images of a sexual nature of a minor. Bayliss notes though that some states have adapted their child pornography laws to account for teen sexting: For example, in Rhode Island, teens will not be charged under state criminal child pornography laws but may be "tried" in family court. And in Colorado, "teens who are approximately the same age and who exchange sexual images with the understanding of consent have committed a civil infraction." See Colo. Rev. Stat § 18-7-109(3). Bayliss's article and map are from 2020, but a 2022 dataset by the Cyberbulling Research Center shows not much has changed. That dataset also provides links to state-specific sexting laws where they exist. Note that no state law can exempt teens from the application of federal child pornography and related laws. Of course, if the image does not even constitute pornography, then all of the above is irrelevant, but I understand you to be asking about the circumstance where the content is typically or historically criminalized. | "As we know non-adults aren't allow to carry weapons" This is not something that we know or an obvious point. It is also not obvious that a knife would qualify as a weapon for these purposes. This would not be true in most jurisdictions in the world. I have no idea what knife control laws look like in China or Taiwan. A reference to why you think that this is the case would be helpful. Even if there are laws banning possession of knives (i.e. carrying knives) when one is in public for use as a weapon, it would be very surprising to me if teens weren't allowed to possess knives in a kitchen, or a work site where a knife was a necessary tool. It would similarly surprise me if a teen working on a knife design in a craftsman's workshop would be illegal. What makes you think that any of these things are illegal in China or Taiwan? This might have been illegal in Japan in the 1600s when metal blades were highly regulated (this is one of the reasons that most Japanese food is served with portions pre-cut to be bite sized), but I very much doubt that teen possession of knives for practical purposes is illegal in any of those places today. There is also, in general, nothing wrong with factories run by adults making knifes from other people's designs. They do that all the time and it wouldn't be illegal to do so just because the designer wasn't allowed to use the product of the factory in public. I would be surprised if a factory even asked how old the designer was, particularly if he was operating through a company formed for him (something an adult might have to do). The harder question would be whether the teen can enter into an enforceable and valid contract with a factory without having the co-signature of a parent or guardian. Many countries don't allow this so that the teen is not exploited into agreeing to a big contract on unfair terms. Also, many countries make a distinction between criminal acts committed by adults and the same acts committed by minors. A teen, particularly a young teen, may be under the relevant law, capable of only engaging in juvenile delinquency, rather than an adult felony. But, again, I don't know how this is handled in Taiwan or China. In general, the legal system in Taiwan strongly resembles that of the legal systems in Continental Europe not long after World War II (i.e. in the 1940s), with its own local developments since then. But, China's legal system is quite unique and is not very similar to the common law legal systems of England and former or current English colonies, or the civil law legal system of Continental Europe (or for that matter, Islamic law). China's legal system is different at the level of very deep concepts of legal process, of what is and isn't law, and of many core legal concepts. It also has piecemeal bits that are imposed by treaty even though they are not organically natural fits with the rest of the Chinese legal system (e.g. its intellectual property laws). | I presume that the document refers to "barn" and "barnebarn". Norway has forced heirship laws, which refers to offspring as "barn", not limited to those under the age of majority. Interpreted in the context of Norwegian law, there is no assertion in using the word that it grants a right to minors. When you add the additional condition that the recipient must have reached the age of majority, there is no conflict. In this kolonihage bylaws document, which is probably similar to the one you are looking at, §11.2.1 requires that a tranferee fulfill the criteria required for the allocation of parcels, and §11.2.2 addresses the non-necessity of paying the transfer fee in the case of death of the member, and does not create a special inheritance right. It also says that the new contract must be established. But a minor cannot establish a contract, and in general cannot be forced to fulfill the obligations of a member as spelled out in §9. You should check with a lawyer to be certain, of course. | The question didn't mention marital status, but since states formally recognize that relationship it's helpful to start there. tl;dr: The Supreme Court decided state laws that required a woman to notify her spouse were unconstitutional. Thus it's unlikely there'd be grounds for suit. Background The central mechanism of Roe v. Wade (U.S. 1973) was a balancing act between what it decided was a 14th amendment right to privacy and the state's interest in both the health of the woman and the potentiality of life. Because Roe explicitly recognized a state interest, Pennsylvania passed a statute in 1982 that required informed consent and a 24-hour waiting period. It also mandated parental consent for minors (with some exceptions) and spousal notification. This reached the Supreme Court in Planned Parenthood of SE Penn. v. Casey (U.S. 1992). There, the court upheld most of the Pennsylvania law (reinforcing its statement in Roe that a state does have an interest) but struck down the spousal notification portion. To do that, it determined the appropriate test was whether a state was placing an undue burden---a significant obstacle---in the path of a woman seeking an abortion prior to fetal viability. It reasoned that: state regulation impacts a female's liberty more than male's during pregnancy (by way of biology) if a man and woman disagree, only one can prevail not all women are equally impacted by a notification mandate (for reasons of domestic violence, etc.) Combining this with the notion that women do not lose any constitutionally protected liberty upon marriage, it decided spousal notification would be a significant obstacle and thus an undue burden. In other words, unmarried women don't have spouses to notify, so placing a notification requirement on married women creates an additional burden that the court found undue. To get back to the question, the father certainly has a right to file a suit against the female (...and it happens from time to time). However, it likely wouldn't go far. Since unmarried women were the baseline in Casey, it's unlikely there'd be grounds for either married or unmarried fathers to sue their female partners. This comes up frequently under the moniker of "Father's Rights," which has gained less traction in the U.S. than in other countries. That said, Wisconsin recently introduced a bill that would allow fathers to proceed against abortion providers. | […] that prior to 2016, Germany had some outdated […] laws. […] The changes of November 9, 2016, BGBl. I 2460 ff, were brought forward under the impression of the 2015 NYE spike in reported sexual assaults. Particularly incidents around the Cologne train station/cathedral area were widely received. […] outdated rape laws. No, there was no change in the subsection concerning rape. Only editorial changes were made, now following the “new orthography”, less pompous wording/update to today’s parlance, and change in numbering. This meant that no did not mean no, […] If I ask you to “touch me down here” and you say “No” and I take your hand regardless and, without (physical) resistance from your side, place it at the respective location, then it’s sexual assault now, because you said “No”. Previously, it would have required force, e. g. grabbing your hand, to constitute a criminal offense. […] the victim would have to demonstrate injuries from self defence. […] Legally – what the law says – it is not necessary. You will not find a single reference in the law “the victim must demonstrate injuries”. However, successful persecution will be difficult in a he-said-she-said situation. If the court cannot be convinced, it will decide in dubio pro reo (i. e. acquit the accused). This is a general issue of criminal prosecution, though, but people get particularly agitated if it is concerning sexual self-determination. It is notable that a change in law does not bring improvements in that regard. […] a victim being too drunk to consent was not enough […] Previously, there was “in a defenseless situation”. Courts (not the police) interpreted this mostly restrictive. Being drunk does not automatically mean being defenseless (and arguably some people even like drunken sex/having sex while on drugs). Now there is an additional alternative “taking advantage of a person’s physical or psychological condition causing a significant impairment in forming or expressing his will, unless he gives his express consent”. This is a shift toward a subjective assessment of criminality. A sexually very experienced person is well-versed in his capability of giving consent to sexual interactions, whereas a sexually-inexperienced person exhibits “significant impairment” at an earlier level. It is yet to see how courts deal with that. […] When did Germany officially implement this law, […] The changes took effect the next day, on November 10, 2016. Technically, there’s no “implementation period”. However, on November 10, 2016, no lawyer could have definitely answered, for instance, the question “What is a legal definition of ‘against apparent wish’?” | He has to follow the law of the country he is in and those of which he is a citizen. A citizen is subject to their country's jurisdiction wherever they are, however, some laws are only enforced within a nation's boundaries and some have extra-territorial application. 18 U.S. Code § 2423 - Transportation of minors covers the US law (I don't speak Hungarian or Polish so I leave that up to you). It says: (c) Engaging in Illicit Sexual Conduct in Foreign Places.— Any United States citizen or alien admitted for permanent residence who travels in foreign commerce or resides, either temporarily or permanently, in a foreign country, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both. 18 U.S. Code § 2243 - Sexual abuse of a minor or ward gives the age of a minor as anyone under 12 years old and anyone under 16 unless the perpetrator is not more than 4 years older. For your 21+ year old this would be anyone under 16. | Depending on the country (not mentioned), the mother may be at fault for not keeping the car out of the hands of her son, but on the other hand, it seems quite impossible to 100% prevent a determined 12 year old from getting hold of your car keys. That would likely be up to a judge to decide whether and how much she is at fault. And also depending on the country, the 12 year old will be held more or less responsible for his actions, due to his age. Depends on the laws, and may depend on the judge deciding whether a normal 12 year old, or whether this particular 12 year old, should know that him driving a car is illegal and highly dangerous and possibility of someone dying was foreseeable. |
Can a Web site owner prohibit men from accessing a site for religious reasons? Is it legal for a woman who writes a religious blog to not allow men to access the site because of a belief that women should not teach men about religion? | That depends what is meant by "not allow". Such a blog author could certainly include a statement that the blog was intended only for female readers. That would not be enforceable. She could include a ToS provision requiring a user to agree to such a restriction. That might be enforceable in theory, but it would be a lot of work to try to enforce, as a blog author does not normally know who her readers are. Such an author could have the blog require registration and log-in, and as part of the registration process require registrants to provide evidence that they are females. That might work to keep (at least most) males from directly reading the blog. If we suppose that the author had such a registration process, and someone brought suit under a federal or state anti-discrimination law, what would happen? Such laws usually only apply to "places of public accommodation". Such laws have mostly been employed to address discrimination in hotels, restaurants, theaters, retail stores, and similar places. I am not aware of any case declaring a blog or any similar online service a "public accommodation". Such a finding would be needed for a suit in such a case to be won by the plaintiff. There are also specific laws prohibiting discrimination in employment, housing, and education. But those would not apply to this sort of case. So I am inclined to doubt that any such restriction, if imposed by a blog author, would be found to violate US anti-discrimination law. | Laws against such actions are not stated in terms of popular and fluid concepts like "computer virus", they are stated in terms of clear concepts like "unauthorized access". There are federal and state laws against this. This web site lists and links to all of the state laws on the matter. There is also a federal law: a detailed legal analysis by DOJ is given here. There are some limits to federal jurisdiction, for example "protected computers" include "computers used in or affecting interstate or foreign commerce or communication". The term "affecting interstate or foreign commerce or communication" is widely used in federal law, and can be used to prohibit growing feed for your own animals. Anything that you "send" clearly affects interstate commerce (the internet is internationally connected). 18 USC 1030(a) says Whoever ... (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains...(C) information from any protected computer Essentially, a computer connected to the outside world is protected. The key here is "without authorization". If you authorize MS to report back stuff about your computer, that is not unauthorized. It may not be possible to use their product without giving such authorization, in which case you can use a different product that doesn't require that you grant authorization. There is also the possibility that some software producer has technically violates the law because they think that it's okay for them to access the computer as long as they do no harm. Typically, people are not aware that they have granted software publishers access to their computer. The concept of "harm" is pretty much irrelevant to computer-crime criminal law. It would be relevant, though, if a plaintiff were to sue someone for sniffing around their computer: then you'd have to show that you were damaged. | I’m guessing you have seen a sign in a business that read - “Management reserves the right to refuse service to anyone”. At least in the US, they do not need a reason as long as the reason isn’t unlawful discrimination. They can decide not to serve you. | There is, in most countries at least, no law requiring a business to treat a customer fairly. In general, a business may refuse to serve a would-be customer for any reason or none, provided that the reason is not membership in a protected class (racial, religious, ethnic, or sexual bias, mostly). Exactly which classes are protected depends on the local law (in the US, there can be such laws at all of federal, state, and municipal levels). If a customer is asked to leave and does not do so, s/he could be charged with defiant trespass (or local equivalent). More likely, security, or the police, could simply escort the customer out of the business, using as much force as is reasonably needed for that purpose. Unless there are grounds for action not mentioned, I see no basis for a successful suit by the customer. | Of course it is protected by the first amendment. Everyone in the US is protected by the first amendment. It's possible that some statements published on the site might fall afoul of any of the well established exceptions to first amendment protection, but in general the site is protected. | It's hard to prove a negative, and I'm not sure which specific part of the quoted Terms you object, to, but it specifically states that content access may be done to: Comply with the law Protect its customers; and Protect the security of its business; and Protect its business interests. It's unlikely that access of information to comply with the law is illegal. At least one EU directive, Directive 95/46/EC, sets limits on the collection and use of personal information. We're concerned with the first condition for lawful data processing, and the second principle of data quality. Data processing is only lawful if the data subject has unambiguously given his consent; or processing is necessary for the performance of a contract to which the data subject is party; or processing is necessary for compliance with a legal obligation to which the controller is subject; or processing is necessary to protect the vital interests of the data subject; or processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party; or processing is necessary for the purposes of the legitimate interest pursued by the controller or by the third party, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection. The principles of data quality, which must be implemented for all lawful data processing activities, are the following: personal data must be processed fairly and lawfully, and collected for specified, explicit and legitimate purposes. They must also be adequate, relevant and not excessive, accurate and, where necessary, kept up to date, must not be stored for longer than necessary and solely for the purposes for which they were collected; special categories of processing: it is forbidden to process personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life. This provision comes with certain qualifications concerning, for example, cases where processing is necessary to protect the vital interests of the data subject or for the purposes of preventive medicine and medical diagnosis. So, let's say that someone has given their consent. It'd be at least a little questionable whether the inspection of private information could mean that they access personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life. I'm a bit less clear on US laws, but you'd probably look for laws around Personal Identifying Information, as that's where a lot of focus has been. | I do not believe this would be a violation of freedom of thought. The person being asked is free to leave, and free not to answer despite the repeated requests for an answer. Extended following and asking might run afoul of stalking/harassment laws, but that's jurisdiction-dependent and probably not a human rights violation. | Do you have an explicit permission by the artist? Does the artist give a blanket permission to anyone which covers this kind of use of their work (a license)? If no, then you commit a copyright violation when you use their work for your blog. This applies to practically any country which signed the Berne convention which is almost everywhere in the world. Having no commercial interest is usually not an excuse to violate copyright. Regarding which jurisdiction applies when you, your website and the copyright holder are in different countries: I opened a new question about this. |
What are the implications of a debt collection company not being registered in England? It has been said that a debt management company in England must be registered as such in England. What are the implications of one operating despite apparently being registered in Ireland? And how can one find out whether a given company is duly so registered? | Debt Management is a regulated activity and has to be authorised by the Financial Conduct Authority (FCA). To find out whether a company is authorised, one may search the FCA's Financial Services Register. If it is a limited company, a search of Companies House should reveal, among other things, its registered office. The FCA also has a searchable Warnings List detailing those unauthorised firms and individuals that they are aware of. Note that: If you deal with an unauthorised firm you will not be covered by the Financial Ombudsman Service or Financial Services Compensation Scheme (FSCS) if things go wrong. All searches a free. | The law of each country where you offer the app for download applies, and you have to consider: Privacy Policy (GDPR in EU, CCPA in California, APPI in Japan, LGPD in Brasil, and more - check each country to be on the safe side) Disclaimer versus AGB/Terms and Conditions (e.g. Germany), not required but recommended Impressum (Germany, Switzerland, Austria) Value Added Tax (VAT) which is taken care of e.g. by Google Play for most countries but not all (e.g. not for Japan) in case the app is not free Consumer Protection Law - applicable (and different) everywhere There might be more, but these are the important ones I am aware of. | First of all, if your Delaware LLC earns money, you will pay tax in America on that money. America still taxes "foreigners" on American income, just not on"global" income. That is, unless the U.S. has a tax reciprocity treaty with your home country, Malaysia. I don't know about Malaysian law, but I am writing as an American about American law regarding the Seychelles (and I am not a lawyer). The following is only as an "example." If you set up an LLC in the Seychelles, you could, in theory, avoid American tax by accruing income there. In practice, if you did nothing but "banking" in the Seychelles, America would look at your lack of "value added" there, and could tax you on Seychelles income as if your corporation was American. The way to make such a claim stick (typically in a place like Ireland), is to set up a manufacturing or operating facility (e.g. call center) there so that you were shipping goods or services from your offshore operation. Then you'd have a strong claim in America that your operation actually earned most of its income abroad, and the U.S. company was just a holding company. | This is commonplace in many jurisdictions across many profession, trades and businesses The authorisation of the register and the amount of any fee (which can be zero) is spelled out in the legislation. As is who is authorised to collect it and maintain the register: sometimes it’s a government authority, sometimes it’s a professional association. Sometimes the title is protected and sometimes it isn’t. Off the cuff, the following is an incomplete list for australia. Some of these are Federally regulated and some are State based. Some of the State based ones are nationally recognised, meaning if you register in one state you are registered in all, and some aren’t. Some states require registration that other states don’t. Architect Engineer Doctor Nurse Physiotherapist Nutritionist Veterinarian Solicitor Barrister Anyone working with children Plumber Drainer Gasfitter Roofer Electrician Waterproofer Builder Real Estate Agent Used Car Dealer Bus driver Truck driver Taxi/ride-share driver Train driver Ship’s master Second-hand goods dealer Security guard Bartender Forklift operator Crane operator Builder’s hoist operator | Given that you're centrally keeping customer financial assets, you're looking at a banking license. At that point, the question is not whether you need a lawyer, but how many. "Note that the issuer/bank would not itself offer currency exchange". Neither the Fed nor the ECB do, and quite a few smaller commercial banks also do not offer currency exchange. Doesn't matter, still banks. How many of the banking laws apply would depend on the customers, and services offered to these customers. So far you've only excluded currency exchange, which means that pretty much every banking law might still apply. You seem slightly hung up on the digital part. That's not how the law works. You'll need a banking license where you're operating your bank, not where its infrastructure is located. And yes, not meeting the requirements for registering a bank (whether financially, regulatory, or legally) will stop your idea in its tracks. This is one of the cases where "talk to a lawyer" might not be the appropriate response, but "hire a legal team". | Is it a legal requirement in the UK to publish purchase prices for land... england-and-wales Yes Section 8(2) of the Land Registration Rules 2003 requires.. Where practicable, the registrar must enter in the proprietorship register— (a)on first registration of a registered estate, (b)following completion by registration of a lease which is a registrable disposition, and (c)on a subsequent change of proprietor of a registered estate, the price paid or value declared for the registered estate. And note that: The terms of a confidentiality clause will not override the obligation on the registrar to enter the price paid in the register. Source scotland Yes Rule 5(g) of the Land Registration (Scotland) Rules 2006 requires the Keeper of the Registers of Scotland to record in the "Title Sheet": any consideration stated for the transfer of the interest in land; northern-ireland Yes Rule 41 of the Land Registration Rules (Northern Ireland) 1994 requires that... A transfer of ownership shall be made by a deed in Form 9 [to] 16 ...and all those Forms (found at pages 105 to 115) require details of the consideration made or paid. | "One day and that day may never come" If a company never invoices me, am I obligated to do anything? No (given that they know how to contact you i.e. you are not evading being invoiced). That said, you will still owe the money. When/if they ask it to be paid, you will need to pay. But there is no need to proactively bug them to take the payment. Until invoiced, you can enjoy the money as a zero-interest loan. | Being outside of IR35 means one is considered a (self-employed) contractor, not an employee, and as such will not have income tax and national insurance contributions deducted under PAYE. HMRC require the NINO and Ltd Co details to cross-reference the payments declared in the public sector's accounts with the Ltd Co's accounts to ensure (a) they match, (b) the correct tax and NIC is paid by the relevant entities, and (c) to confirm the identity and/or status in the Ltd Co of the recipient of the payments. |
Are there any international laws governing the change of country of a region? Russia last week held a referendum on whether the occupied regions of Ukraine would want to join Russia. Many states and international institutions have already made clear that they will not accept the result, because it seems obvious that the outcome will be faked and people are not free in their decision. Therefore my question: What would be a legal way of achieving this? Are there any international laws on that, or does it depend mostly on the laws of the countries involved? I do know that there have been some polls about regions changing state in the past (e.g. the 1919 poll in Vorarlberg), but I don't know of a recent one and I don't know of any successful ones. | So generally, when a region of a nation tries to break away and form a new nation or join a nation, it's acceptance as a nation is generally based on the Diplomatic Recognition of other Nations. This can either be de facto or de jure, with the former acting in a manner of having some acknowledgement of a government of a territory, while a de jure recognition typically is stronger with embassies, consulates, and treaties between the two nations. For example, the United States has de jure recognition of France and vice versa, while they merely have de facto recognition with Iran (They recognize there is a government of the territorial area known as Iran, but they feel that the current government is illegitimate and refuse to engage with it in diplomatic relationships. Iran similarly knows there is a United States, but refuses to recognize it for political reasons as well.). When two nations do not have de jure recognition they will often appoint another nation "Protecting Power" who will act as a representative of the appointing nation in the nation they do not recognize. Currently, the Swiss Embassy in Iran has an office dedicated to U.S. affairs as it is the Protecting Power of the United States in Iran. Iran has asked Pakistan to have the same duties. And before you ask, yes, it is the geopolitical equivalent of two people in the same room not speaking to one another, but telling a third person to give the other person a message (U.S.: Switzerland tell Iran that they will give us back our citizens who are being held in their jail cells or we will drop bombs on them. Switzerland: rolls eyes Iran, the U.S. says they want their guys back or they will bomb you. Iran: Oh yeah? Tell U.S. 'Death to America!' Switzerland: eye roll They said... U.S.: Already routing the bombers!) If a region is claimed by more than one government, than it becomes disputed territory. Presently China has a lot of disputed territory with its neighbors and Maritime neighbors. Ongoing disputes include territories also claimed by India, Bhutan, Japan, Taiwan, Vietnam, Malaysia, and The Philippines. Interestingly, the dispute with Taiwan is over who is the real government of China... Taiwan claims much of the other disputed territory China does... plus some territories which China has resolved disputes over. The Russia-Ukraine situation will likely leave the territory in question (The Donbas and Crimea Regions) listed as disputed. Generally, disputed territory doesn't mean nations cannot be friendly, as the United States has a number of territorial disputes with Canada, despite being very strong diplomatic allies (with the single largest land boarder between two nations in the world, disputed territory was bound to happen). Perhaps the most interesting is the now resolved dispute of the San Juan Island in Washington State. Oversimplified History has a good video about it on his YouTube channel, specifically the "Pig War" confrontations and does a pretty good job of highlighting just how dramatic the change to the modern border would have been. | Usually this answer would be provided by a local government land use ordinance, and not by the constitution, national law, state law or common law caselaw rules. It would vary considerably from place to place within India. You would need to review your local land use ordinances to find the answer. | No Recognition of territorial claims is the sole province of the diplomatic branches of national government, and of heads of state. In the US it is the State Department, and ultimately the President. The actions of telephone operators and people engaging in other forms of communication cannot and do not bind the decisions of the President, or of other heads of state. Besides, there may be cases in which a telephone country code or a web domain may not match the actual, undisputed legal status of a territory. Accepting a phone call does not affect a country's legal status. For decades the US did not recognize the communist regime in China. Legally, it considered that the Republic of China (aka Taiwan) was the only valid government, and the acceptance of telephone calls did not change that. | Scenario 1. It doesn’t matter what it says. If it was not legally ratified, it is not legally in force. There is no absolutely no paradox at all. It is essentially just a draft amendment and would be thrown out if any attempt was made to enforce it and challenged. | Yes. This would require the consent of Congress and the accepting U.S. state, but Puerto Rico's consent would not be constitutionally required (although it would be prudent to obtain and probably would be obtained as a matter of custom and fairness). New York States has floated the possibility of annexing Puerto Rico since it is the single most concentrated destination of Puerto Rican migration to the mainland historically and has a large and politically well organized Puerto Rican community and would favor the expansion of Democratic political party power that this annexation would entail. Contiguity is less of a concern for Puerto Rico since it is an island in any case. Florida would be another natural candidate, but its conservative/purple political makeup would probably oppose such an annexation even though geographically it would be a more natural annexing state. In a similar vein, there have been proposals to annex all of the District of Columbia except the federal mall to Maryland subject to the same formal requirements. Either annexation would be a compromise. It would give these territories full statehood status and full representation in the U.S. House but would deny Puerto Rico and the District of Columbia, respective, their own two seats in the U.S. Senate which would favor Democrats more than mere annexation would. | Westphalian Sovereignty Israel has decided that this is the law in Israel and they are the only one who gets a say in this. The concept of the modern nation-state can trace its origins to the Treaty of Westphalia (possibly - there is disagreement among historians and political scientists but for our purposes we'll just let them get on with it) which ended the 30-years war. This was a complex and dynamic conflict of which one of the contentious issues was who had the right to determine the laws in a particular territory, particularly religious laws - the local prince/king/duke etc. or the Emporer. Long story short - it wasn't the Emporer. This is embodied in Article 2(1) of the UN charter: The Organization is based on the principle of the sovereign equality of all its Members. That is, Israel and only Israel gets to decide what the law is in Israel. Which is to say, that what the law is in Israel is down to internal Israeli politics. Israel is a democracy so this is down to democratic politics. International law only allows involvement when the actions of a sovereign state (UN member or otherwise) infringe on the peace and stability of other sovereign states. I realise that there is a whole area of discussion here but suffice it to say that the internal operations of the UN are political rather than legal. However, laws on marriage in Israel seem unlikely to have international peace and security implications. | Any country is free to decide what actions are considered to be crimes, and what crimes are prosecuted depending on whether you perform the action in the country, outside the country, and depending on whether you are a citizen, a resident, both, or neither. They can also decide what are accepted defences in court and which are not. Any other country is free to decide under which circumstances they will ever extradite someone to that first country. Now you have to check the laws of the individual countries. | Isn’t this discrimination since nationals do not have to apply? Yes it is discrimination. But that does not make it illegal. In fact discrimination is in general legal unless it is based on some characteristic which is specifically forbidden as a basis for discrimination (e.g. race). And in general, all of the countries in the world allow and enforce discrimination based on nationality; for example non-nationals will not be able to run for Head of State (and additional restrictions may apply). The EU members allowing similar rights to the citizens of other EU countries is the exception, not the rule, and once the UK stops being bound by EU treaties it can impose its own legal system on non-nationals. And while EU treaties give lots of rights to EU member-countries citizens, they still allow for discrimination based on nationality (for example you cannot run for Prime Minister or MP of Spain as a foreign EU resident). Isn’t the UK Government breaking the law? This could go against EU treaties, but the point is that the UK will no longer need to comply with them. is the UK Government responsible for the harm and distress caused to the individual health and mental wellbeing? No, the UK Government is not responsible if you do not like its laws to the point that it affects your health. Is there any ground for challenging this scheme legality in court? Unlikely. In any case it will not be because you are frightened by it, any challenge would be in the grounds that the government actions act against some other UK law. For example, if the decision to make such a list was made by the Executive but it contradicts some law approved by the Parliament. If this list does not contradict any law, then there are no grounds for challenging it. Would there a breach of my human rights if I was not to apply for settle status and then subsequentially got deported (taken away from my children, home, business, etc.)? How about if I was refused, re-entry or access to public services (NHS for example)? If you do not apply you will not have any evidence that you were settled, and the government could legitimately believe that you are irregularly in the country and try to expel you; you probably would have an opportunity to prove that you were settled even if you were not in the list but that could be way slower, more expensive, riskier and stressful than just registering now. Get this clear: that settled person list is to help you to show that you were a UK resident before Brexit and to give you the protections that are being negotiated between the UK and the EU for expatriates. Probably you could choose not to enlist, but it would work against you. |
Is there anything illegal about working for another party while on paid leave from one's job? Meet Bob. Bob has 20 days' paid leave from his work. When he is taking this time off and being paid for it, is there anything wrong with him doing other paid work for another person or company? | In general, in the US, Bob may do this. If the second company is a competitor of the first and Bob has access to confidential information from his first employer, then there could be an issue. Some employers require their employees, or some of them, to agree to "exclusive employment", that is to agree not to accept any other employment while employed by the company. If Bob has agreed to such a contract, he would be in breach of it if he took a second job and could be fired if his main employer learns of this. This is not a problem if Bob gets permission for the vacation work from his usual employer. In any case, Bob is not committing a crime, even if he is violating his contract. | Yes, there is legal precedent against this that would only apply to a government employee. First, let's discuss the private sector. In this case, you are a private employee that comes to your place of work and accuses you of "stealing the cookies from the cookie jar" which is a serious criminal offense. They wish to talk and your boss is in the room. You plead the 5th, but your boss says you're fired if you don't talk to the cops. This is legal because you still have the right to refuse to talk, you just lose your job. A private employer has the right to free association, and wants nothing to do with cookie thieves, alleged or actual. However, in the government employ, your boss is an agent of the government. This same situation is different because the government pays the boss and the agent... so in essence the government is saying talk or be fired. This is unconstitutional as the government cannot retalitate against you for your refusal to talk. Generally, in order to talk to you, the investigator would need either a signed Garrity Statement or a Signed Kalkines Statement. The former is a statement saying that they are investigating a wrong doing but you cannot lose your job if you refuse to speak to the investigators, where as Kalkines says you must talk but you are granted immunity for your part in the wrong doing, so long as you make truthful statements. For more on this, check this legal blog. There is also the matter that a false accusation (and let me be clear... this is academic, I'm not saying the accusation in the real life topic is false, nor am I saying that the defense is false... we're merely discussing a possibility) is made to your employer and they do not offer the job on the basis of the accusation alone, this is grounds for defamation actions... and in certain jurisdictions, it's criminal defamation, so there could be jail time. It's interesting you mentioned teachers, because this happens alot. Kids do know that there are certain things that get a teacher fired quickly, so teachers do get the occasional false accusation of sexual assault (I know one teacher who has had multiple accusations over the course of her career). One of the few good things I can say about the Teachers Union is they cover the legal defense of accused teachers. The accusations do get the teacher removed from the class for sometime, but they don't lose their jobs over this matter. It's followed up but the accusation doesn't immediately lead to the teacher getting fired.. | You can be fired in Canada for criticizing the employer, or even complaining about the weather. There is a distinction between Termination Without Cause and Termination With Cause. In the latter case, which requires a serious reason related to the employee's conduct, you can be fired without advance notice and with no severance pay. If the employees actions are fundamentally inconsistent with their obligation to the employer or are substantially prejudicial to the business in a way that damages employer's business or reputation, they may be terminated with cause. Examples of cause would include insubordination, theft, or abusing customers. If you want to fire a person without cause (and assuming that this is an indefinite employment contract as opposed to a fixed-term contract), you have to give "reasonable notice". There is a statutory minimum, but the courts usually apply a higher common law standard which means that you need to hire a labor lawyer to know what that period is, though 24 months is apparently a relatively safe figure (not always safe). The factors entering into that decision are described here (kind of job, length of service, age, availability of similar jobs; plus, how the termination was handled). You may also owe severance or termination pay, related to length of service and wages. Here is a calculator for Ontario. This article covers some instances in Québec where social media criticism did result in successful suspension, indicating that the employee's duty of loyalty is not entirely null when it comes to social media. In the BC case of Kim v. ITU, the court found that the dismissal over social media posts critical of the company was not for cause. However, part of the company's failure in this case was that they failed to respond immediately to what they saw as inappropriate behavior (boorish Twitter behavior). Assuming that the statements made are accurate and expressed respectfully, the prospects for Termination With Cause are significantly diminished. The prospects for some disciplinary action (suspension for a period of time) remains high -- multiple terminations were modified to long suspensions. | The statement "you don't need to put it in writing" is not an instruction, and should not be interpreted as on in lieu of other evidence (e.g. the follow-up question "you don't want to get fired, do you?"). It is, at best, a recognition that your concerns have already been noted (and at worst, a ham-handed threat). In the context of an at-will non-union position, it is legal for a boss to directly demand "take it or leave it, no back-talk allowed". The reduction in salary can't go below the statutory minimum, or otherwise circumvent any laws, but assuming that the new salary is per se legal, they can demand that you accept it and not argue. If this were a government position, there is a potential (but not guaranteed) First Amendment issue. | It depends to a large degree on local employment laws. Depending on how the counteroffer was worded, it might have constituted anything from a binding legal contract for employment for some reasonable minimum term, or a totally non-binding suggestion that was worth less than the air breathed while pronouncing it. Some things to consider would include: What are local employment laws like? Do they require that termination be for cause? If so, what are causes for termination? Does termination require any kind of remediation beforehand? Note that in an at-will, right-to-work state in the US, odds are that the employee can be fired for any time and for any reason, supposing the employer hasn't accidentally entered into a contract by extending the counteroffer. What did the counteroffer say? Did it stipulate that the offer was not for a definite term and that the company reserved the right to terminate the employee for any reason, or no reason at all? Odds are any sufficiently serious business in an at- will, right-to-work state would use standard legal language in any offer or counteroffer to ensure that they are on the right side of this, so odds are the counteroffer was accepted with no obligations at all on the company. Does the termination affect eligibility for unemployment benefits? I would say most likely not, as the termination would probably be recorded as being for no reason legally speaking (if they admitted to terminating the employee for seeking other employment, interested government officials could take a dim view of the company's actions). You'd probably have at least some unemployment compensation coming your way. Some professional - not legal - advice. Never accept a counteroffer. Only get another offer in the first place if you are committed to leaving your current employer no matter what. If your company really insists, you should insist on a minimum definite term of employment written into a legal contract which is signed by an executive and notarized. No company will agree to this (unless the term is shorter than you'd want as a full-time W-2 anyway) but if they do, hey, you have some security (if the company agrees to this, have your own lawyer - whom you pay with your own money - review the document). Even then, I would be very, very careful about staying at a company after getting a counteroffer. Don't do it. Ever. Never accept a counteroffer. One comment asks why I recommend never accepting a counteroffer. There are at least two reasons: The reason you are looking for a new job should be that there is something about your current job that isn't completely satisfactory and that you haven't been able to fix. Either you have grown out of the position, don't like the work, feel you're underpaid, don't get along with somebody, etc. If you were unable or unwilling to fix any of these issues without having another job on the table, having another job on the table shouldn't be what makes you willing and able to fix them. Why work somewhere that you'd constantly need to go job hunting to address workplace issues? Unless the company makes firm agreements about how long they're going to keep you around, you have no guarantee that they'll keep you. Presumably, you didn't have one before, and you don't have one at the new job, but the fact that you are currently employed might support the assumption that your employment would be continued at your current employer and the offer might support the assumption the new employer plans to employ you indefinitely. When you put in your notice, it makes the company more aware of the fact that you could leave at any time; while a perfectly rational actor would realize that this doesn't change the situation at all, companies are run by people and people often act irrationally. Perhaps your manager is vindictive, perhaps your manager is scared that you will still leave after accepting the counteroffer. Maybe your manager knows there are layoffs coming but needs you for the busy season. Hiring replacements can be time-consuming and expensive - and employees who are getting offers of employment elsewhere and putting in notice might be seen as risks. I'm not saying that accepting a counteroffer has always turned out badly. Falling coconuts kill 150 people every year. Still, I am not going to add a coconut rider to my insurance policy and I am not going to accept a counteroffer. | NO (mostly). Servitude means that the employer, or owner of the indenture, or whatever, can use physical force to make the indentee carry out the work given. If the indentee runs away they can be arrested and forcibly returned. This is distinct from the law of contracts. If Alice agrees to provide labour for Bob and subsequently fails to fulfil the contract then Alice may have to pay damages, but that is all. Even in cases of crminial fraud where Alice never meant to provide the labour in the first place, the penalty is defined by law, and would not be the provision of the contracted labour. As the OP notes, military service is generally an indenture-style contract; desertion is a crime. However the other party in that case is the government acting under law rather than a third party acting in their own self-interest. The Universal Declaration of Human Rights prohibits all forms of servitude. | Usually, a clause like this is used in contracts of full time managerial or professional employees of a business who are employed on a salaried or commissioned, as opposed to an hourly basis, in positions that are exempt from overtime requirements. It basically prohibits moonlighting with a second job while employed at your current job. A non-competition clause, in contrast, would typically prohibit working for a competitor for some period of time after ceasing to work at your current employer. This is concerned about spreading your time and efforts too thin, rather than competition. You could violate it even if your moonlighting job has no direct impact (other than loss of some of your full time services) on the firm that employs you in your primary job. It does not prohibit you from having a personal life (e.g. going to the dentist, visiting family, watching a movie, etc.). Normally, this is used as a backstop against gross abuses, with performance based evaluation as the primary means by which the employee is evaluated. The line between personal investment activity and moonlighting or an intensive hobby can be vague and it is usually only enforced in extreme cases. | "Backlogged" has no legal status. Under usual contract terms, all intellectual property you generate as part of your employment belongs to your employer. But "intellectual property" is a category of rights, such as patents, trademarks and copyrights. An idea by itself is not intellectual property. "Wouldn't it be great if ..." cannot be owned by a company. However, specific ideas can be trade secrets, and trade secrets are protected. It's likely that your idea is a trade secret, if the idea applies to the sort of business that your ex-employer is involved in. The fact that it's called promising by the company reiterates that. |
Stop sign hidden by tree Whose responsibility is it to keep the sign visible. My understanding of "easements" is that one may own title to a parcel but easements allow others to use or have access to parts of private property. That parcel may include a sidewalk. It must open for use by others for walking. This sidewalk though must be maintained in good working order by the property owner. Said parcel may also have a tree. The utility company has an easement that permits access for such tasks as maintaining their lines should said tree be interfering in some manner. That parcel may also include a stop sign. That overgrown tree may also be blocking viewing of stop sign. Does the town perform tree maintenance to keep stop sign visible, or is the property owner required to ensure his tree does not obstruct stop sign. Feel free to correct any incorrect jargon. | This depends on the law of the specific jurisdiction, but there is non-trivial similarity in those rules across the US. The general rule is that the person who owns the property must maintain the property. There are often local ordinances that explicitly say that, for example this which is the legal mechanism behind this guidance on tree-trimming. A municipality can do the trimming, or they can send official letters to property owners telling them to trim the bushes. It does not matter whether the sign is on your property via an easement, what matters is where the tree is. You are not responsible for trimming your neighbor's tree if the stop sign is on your property. | Zoning is controlled by the municipality (and possibly state, given where KC is) so you would have to check the rules for the municipality of interest and look at the specific zoning designation (e.g. RP-OE, R-2, MXD). Here for example is a page of code from Overland Park, which tells you that RP-4 land can be used for a private park, but agriculture is not a listed permitted use. You might argue with city hall over whether a giant garden is agriculture, and you might even win the argument (if it is a garden where you don't harvest product). Private / non-commercial is not likely to be the controlling factor over agricultural use. | Maryland has no law requiring a neighbor to not plant / trim trees that might shade a solar panel (on the ground or on the roof). There are laws against deeds, declarations, covenants, contracts etc. (excepting registered historic properties) which prohibit of roof panels (e.g. as part of a HOA's rules). The law also recognizes the right to enter into an easement agreement, but that requires agreement by the neighbor. California has a law requiring tree trimming that would cover this case. | Is there a way for us to prevent the sale of the house until they have moved the fence? For example, it seems that filing suit against the current owners doesn't necessarily prevent the sale, and that the suit would be pointless after the sale is complete. You can't prevent the sale, but if you file suit to adjudicate the boundary dispute and file what is called a "lis pendens" giving notice that the suit is filed in the real estate records, the buyer will taken subject to the lawsuit and realistically, won't close in the first place. The prospect of an impending sale is unlikely to be something that would cause the court to take expedited action or issue a temporary restraining order, because you can preserve your rights with a "lis pendens" which doesn't take a court order. The absolute minimum amount of time in which you could get a court order on the merits without a temporary restraining order is perhaps three to four months, which is almost surely too long to prevent a sale of a house. The suit isn't pointless after the sale is complete. You can still enforce the boundary against the new owner. And, often, a new owner, having no ego in the placement of the fence, might settle the case sooner than the old owner would have. But, better practice in terms of neighbor relations would be to file suit first, so that the new buyer, if the buyer goes forwards with the sale, is aware of the defect. The old owner is also more likely to have evidence useful in the lawsuit you bring. Short of filing suit, send a letter to the realtor and the neighboring property owner with a copy of the survey advising them of the problem. If you could somehow figure out who was handling the closing, you could tell them too. This will impose upon them a legal duty to advise the new buyer before closing, and if they fail to do so, they expose themselves to the risk of a fraud lawsuit from the new owner. But, while this is cheaper, it also presents a risk that they won't warn the buyer who will then not have notice and the risk of being sued for fraud may cause the seller and the seller's realtor to resist your suit more aggressively and to be less prone to settle it. If you wanted to be really aggressive, you could give the neighbor notice that the fence is over the line and that you will destroy it if the neighbor doesn't act, and then tear down the fence, which is strictly speaking within your rights if you can do so without a breach of the peace, because it is on your property. I wouldn't recommend this approach, however, as it could lead to violence or police involvement that depending on the policeman who isn't trained in real estate law, might get you arrested which is not good even if the charges are later dismissed. | Am I required to help purchase this property for the HOA? Your HOA (homeowner's association) can do what it governing documents permit it to do. It is highly unlikely that there is a statutory prohibition against it doing so. It is quite common, for example, for an HOA to temporary take ownership of units. when the owner of the units had defaulted on their HOA assessment payment obligation, and the HOA forecloses on its lien for unpaid assessments (especially when the units is low in value, like a separately owned parking space or storage unit). Typically, an HOA might want to own vacant lots so that it can control how that vacant lots are developed to prevent an undesirable use of those lots, or to reserve space for the construction of common areas such as community gardens or lawns or HOA facilities, in the future. Normally, such a power would be expressly stated, or would be expressly prohibited, in the governing documents. If the HOA governing documents are silent, typically one would look to the general statutes governing organizations of its type (e.g. non-profit corporations, if that is how the HOA is organized). Most general statutes of this type would permit such a purchase (and a subsequent sale of the lots) if the vote required by the governing documents to purchase (or sell as the case may be) of real property have been complied with by the board. If so do I have any land and title rights to said property? This would normally be spelled out prominently in the governing documents of the HOA. As a practical matter, the HOA would be in exclusive control of the property and would have exclusive responsibility for maintaining and paying for obligations arising from the property, all of which would be paid out of HOA assessments along with any revenue that the land generates. In some HOAs land and title of common areas and other real estate and property of an LLC is legally vested in the HOA entity as a corporate owner of it, and you own membership interests in the HOA. This usually increases the economic value of your membership interest, but has little other direct impact. In some HOAs (which are called "condominiums" when using that term in the strict rather than in the colloquial or broad sense) land and title of common areas and other real estate of an LLC is held as an undivided tenancy in common interest of all HOA members in proportion to their assessment percentage, with the HOA having an irrevocable power of attorney to manage it on behalf of its members, although, in practice, the differences between these and corporate ownership of common areas and other HOA real estate is almost nil. Sometimes, rather than an irrevocable power of attorney, the HOA is a trustee over the common areas and other real estate which are beneficially owned by the members as tenants in common, instead. | Damaging someone else's property is not protected free speech in the US. Nor is using someone else's property without permission and against the owner's wishes. Scenario 3 would surely be vandalism or "Malicious Mischief" or some similar offense, even if the paint can be fairly easily removed. The same would be petty surely true of scenario 2, as it would take at least some effort to remove the sticker, and it could be a safety hazard until it is removed (obstructed vision). Scenario 1 would probably not be even a minor crime, unless perhaps the person trespassed to attach the string. But the person has no right to insist that the car's owner not remove the sign. I am assuming that the car is owned by someone else, and the the person placing the sign, sticker or paint acted without permission from the owner or any authorized person. | I've gone through this enough times in Pennsylvania to paraphrase the law in this state: If a tree falls it's nobody's fault, unless the tree's owner was given credible advance notice that the tree posed an exceptional risk of failure, in which case the owner is liable for damage it causes if it fails. (For purposes of liability, a tree is "owned" by the owner of the ground where the trunk of the tree enters earth.) In the scenario you describe: A tree owned by your neighbor has not yet caused significant damage, but has been so structurally compromised that it poses an exceptional risk to your property. The standard course of action in such a circumstance is to promptly and formally notify the owner of that fact, and for the owner to remedy the risk. (In this case, it sounds like the only practical remedy is removal of the tree.) As a practical matter, the owner might be able to get an insurer to cover the cost of removal before it does more damage. But that's their problem. As a matter of expedience, you might also notify your insurer, since if the tree does end up causing significant damage to your property, you could subrogate your claim through your insurer. As a further matter of expedience: The township may have codes requiring landowners to address hazardous trees. Thus, if the owner does not promptly remedy the peril you could also notify the township. | If they have no legal grounds then it would be trespass to chattels However, they do have legal grounds. Following the procedure laid out in the relevant Act makes the car refuse under the Act notwithstanding your opinion. Move it or lose it. Or seek an injunction preventing the council removing the vehicle- this will likely fail. |
Who qualifies as a "disreputable person" for purposes of probation? Under N.J. Stat. § 2C:45-1.b.(6), one of the standard terms of criminal probation that may be imposed in New Jersey is: To refrain from frequenting unlawful or disreputable places or consorting with disreputable persons; I'm having a little difficulty understanding what criteria would have to be met for a person to be considered "disreputable" enough for probationers in New Jersey to be obligated to avoid "consorting" with them. The term does not appear to be defined in New Jersey statutes. It (or similar phraseology) appears in the statutes of some other jurisdictions, so I suspect that it is a legal term of art with a specific meaning rather than a vague admonition against socializing or doing business with the kinds of people that my parents warned me about. The most obvious and reasonable definition would be someone with a criminal record, but if that is the case, it would make more sense for the statute to just come out and say it rather than use a less clear term. It would also be unclear if any criminal record qualifies a person as being disreputable or if the determination is based on the recency and/or severity of the criminal conduct (e.g. multiple felony sexual assaults of a child in the past year versus one misdemeanor expired fishing license rap from 1972). What is the definition of a "disreputable person" under New Jersey law? Specifically, is it defined in terms of objective criteria (e.g. more than X felony convictions in the past Y years) or is it based on a subjective ("whole person") analysis with multiple areas of inquiry (e.g. criminal record, general attitude, personality traits, credit rating, history of losing civil lawsuits, professional ethics violations not amounting to criminal conduct, whether they are currently suspended from Law Stack Exchange, life accomplishments, neighborhood rumor and gossip, etc.)? To be clear, I am asking if this term is defined or has a generally accepted legal meaning, not asking for personal advice. I am not personally on probation in New Jersey, and if I was, I would address this question to my lawyer and/or probation officer rather than the Internet. If this term has been defined in another jurisdiction under circumstances where a New Jersey court would be likely to adopt a similar definition, I would accept that as an answer. An answer might look something like this: In the New Jersey Supreme Court case Smith v. State [cite], "disreputable person" was defined as any person with two or more felony convictions in the past ten years or who was convicted of an offense requiring sex offender registration regardless of how long ago. It was specifically held that evidence that Probationer's consort had had his nursing license revoked for professional misconduct six months prior to consorting with Probationer was entirely irrelevant and inadmissible as evidence of disreputability for purposes of revocation as no criminal conviction had resulted from said conduct. | It refers to whoever the judge reasonably says it refers to. The referent of that specific clause N.J.S.A. 2C:45-1(b)(6) is not analyzed in any court ruling that I have been able to locate, but case law such as State v. Krueger, 241 N.J. Super. 244 has addressed other discretionary provisions of the statute, and has upheld the propriety of such discretionary acts as ordering restitution "as long as (1) there is a reasonable relationship between the restitution and the defendant’s rehabilitation, and (2) there is a factual underpinning supportive of the restitution". The court concludes that we are entirely satisfied that the debarment was reasonably designed to “assist” defendant in “leading] a law-abiding life” and was thus permitted under N.J.S.A. 2C:45-la....The condition of probation was substantially related to an appropriate penological and rehabilitative objective followed by numerous citations. | I will use Washington law to lay the landscape for a rape charge. First degree rape is sexual intercourse with another person by forcible compulsion, either with kidnapping, (apparent) threat of a deadly weapon, beating the victim, or feloniously entering the building of vehicle where the victim is. This is not the case under discussion. What does potentially apply is second degree rape, which is sexual intercourse by other types of forcible compulsion, or (b) When the victim is incapable of consent by reason of being physically helpless or mentally incapacitated, or various similar descriptions of diminished capacity (a developmental disability plus perpetrator supervisory authority, etc). Subparagraph (b) is crucial here, and we turn to the definitionL "Mental incapacity" is that condition existing at the time of the offense which prevents a person from understanding the nature or consequences of the act of sexual intercourse whether that condition is produced by illness, defect, the influence of a substance or from some other cause. Also to be clear on "forcible compulsion", "Forcible compulsion" means physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped In the case of intercourse with an intoxicated person, the government must prove that the victim's condition prevented them from understanding the nature or consequences of intercourse. Now compare the law in Minnesota, otherwise analogous, but with a different definition of "mentally incapacitated" (subd. 7): "Mentally incapacitated" means: (1) that a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person's agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration; or (2) that a person is under the influence of any substance or substances to a degree that renders them incapable of consenting or incapable of appreciating, understanding, or controlling the person's conduct. (italics indicate the differences of interest). The second clause in the Minnesota definition states the same idea as the Washington definition, but also adds "inability to control" as a form of incapacity. The first clause states a different standard of inability, lowered from "incapable of deciding" to "lacking judgment", but only when the condition arises without the person's consent. The point here is that prosecution and conviction do not just depend on a generic and universal concept of "consent", it very much depends on the exact words selected by the legislature in establishing these laws. Minnesota's legislature made one set of choices, Washington's made another. The Washington legislature made another choice when it came to intoxication: per RCW 9a.16.090, No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his or her condition, but whenever the actual existence of any particular mental state is a necessary element to constitute a particular species or degree of crime, the fact of his or her intoxication may be taken into consideration in determining such mental state. So an voluntarily drunk person cannot defend themselves saying "I was drunk, I didn't know what I was doing", but intoxication can be relevant to the important question of "knowledge" as an element of culpability. This is a principle of law specifically set by the legislature. Prosecutors don't decide based on a hypothetical "how drunk" scale, instead they compare the facts with what the applicable law says. There is no "knowingly" requirement for prosecution for rape, therefore one cannot argue that because of intoxication the accused "lacked knowledge" of their act owing to intoxication. Being intoxicated according to the .08 driving standard does not (generally) render a person incapable of understanding "intercourse". | This is called solicitation. A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime. Model Penal Code § 5.02. | No Section 18-1-704.5. (1) says that : The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes. (*emphasis added) Subsections (2), (3), and (4) all refer to "any occupant of a dwelling" as the class authorized to use force by this section. An offie is not a dwelling. Section 18-1-901. Definitions says: (g) "Dwelling" means a building which is used, intended to be used, or usually used by a person for habitation. Section Section 18-1-704 provides that: (1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose. (2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and: (a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or (b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204; or (c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203.of person's authored by this law to use force Under that provision, the use of deadly force does not seem clearly justified. It is highly questionable that "a lesser degree of force is inadequate". Any conclusion that the intruder represents an "imminent use of unlawful physical force" seems dubious, but I can't say what a court might find. This law is fairly recent, there may be no published case law for it. | What provisions define the notion of a recordable offence? A Recordable Offence is one that falls within the scope of the National Police Records (Recordable Offences) Regulations 2000 (as amended 2003 to 2016) that: provide for the recording in national police records of convictions, cautions, reprimands, and warnings for the offences specified in the Schedule and for any offence which is punishable with imprisonment in the case of an adult. [note, the schedule is far too long to repoduce here] Or, in other words, one where... ...the police are required to keep a record. Generally speaking, these are crimes for which an individual could be sentenced to a term of imprisonment or they have otherwise been made recordable by statute. The term also includes a number of non-imprisonable offences for example begging and illegal taxi touting. The police are not able to take or retain the biometric information of an individual who is arrested for an offence which is not recordable. [Source: ACRO Criminal Records Office] What are the implications of something being a recordable offence versus not being one and what is the purpose of certain offences being deemed recordable ones? The police can take fingerprints and non-intimate DNA samples (say from plucked head hair or a mouth swab) from someone arrested for a recordable offence without their consent, as per section 61 Police and Criminal Evidence Act 1984 for fingerprints: (3) The fingerprints of a person detained at a police station may be taken without the appropriate consent if— (a) he is detained in consequence of his arrest for a recordable offence; and (b) he has not had his fingerprints taken in the course of the investigation of the offence by the police. And section 63 for DNA samples: (2A) A non-intimate sample may be taken from a person without the appropriate consent if two conditions are satisfied. (2B) The first is that the person is in police detention in consequence of his arrest for a recordable offence. (2C) The second is that— (a) he has not had a non-intimate sample of the same type and from the same part of the body taken in the course of the investigation of the offence by the police, or (b) he has had such a sample taken but it proved insufficient. section 65(1) provides these definitions: [...] "fingerprints”, in relation to any person, means a record (in any form and produced by any method) of the skin pattern and other physical characteristics or features of— (a) any of that person’s fingers; or (b) either of his palms; “intimate sample” means— (a) a sample of blood, semen or any other tissue fluid, urine or pubic hair; (b) a dental impression; (c) a swab taken from any part of a person's genitals (including pubic hair) or from a person's body orifice other than the mouth; [...] “non-intimate sample” means— (a) a sample of hair other than pubic hair; (b) a sample taken from a nail or from under a nail; (c) a swab taken from any part of a person's body other than a part from which a swab taken would be an intimate sample; (d) saliva; (e) a skin impression; [...] What happens if you decline consent to give your DNA and fingerprints in the station? If one is at the station under arrest for a recordable offence, then section 117 allows a constable to use reasonable force if the suspect refuses to co-operate: Where any provision of this Act— (a) confers a power on a constable; and *(b) does not provide that the power may only be exercised with the consent of some person, other than a police officer, the officer may use reasonable force, if necessary, in the exercise of the power. | Normally a will lodged with the Surrogate's Court is a matter of public record. The Superior Court shall have jurisdiction to compel discovery as to the existence or whereabouts of any paper purporting to be a will of any decedent who died a resident of the county, which has not been offered for probate, and to require the paper to be lodged with the surrogate of the county for probate. N.J. Stat. § 3B:3-29. If a will has been registered in the New Jersey Will registry then a search of the registry in furtherance of the goal of locating a will is allowed for interested persons: Only interested persons and their representatives may conduct a search of the registry. As used in this act, "interested persons" means children, spouses, potential heirs, devisees, fiduciaries, creditors, beneficiaries and any others having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding. N.J. Stat. § 3B:3-2.1. | Short Answer A defendant cannot be found guilty on a charge for which the defendant was not arraigned, but this reality is a trivial matter whose sole practical effect is to prevent trials in absentia. There is also a buried second question implicit in the example given but not actually stated in as many words: Can a defendant be convicted of crimes for which an indictment or information is not secured? The answer to that buried second question is no, subject to the exception that a defendant may be convicted of a lesser included charge relative to one for which an information or indictment is secured and upon which the defendant is arraigned. A lesser included charge is a crime for which all the elements must be established to prove the greater charge, but the converse is not true. Thus, if someone is charged only with manslaughter in an indictment to which they plead not guilty, they cannot be convicted of murder. But, if someone is charged with murder in an indictment, to which they plead not guilty, they can be convicted of either murder or manslaughter which is a lesser included charge relative to a murder charge. Long Answer Basically, the criminal justice process goes through the following steps in a felony case (some of which may be omitted in misdemeanor and/or petty offense cases): Someone is charged with a crime in a criminal complaint and arrested. These two events can occur in either order. If the complaint is made first, an arrest warrant will be issued by a magistrate and form the basis for a subsequent arrest and booking. If an arrest is made first, usually because a law enforcement officer has probable cause to believe a crime was committed, the criminal complaint will be drawn up once the defendant has been arrested and booked. After both events in step 1 are complete, a first appearance of the defendant in person before a magistrate or judge is held in a matter of one to three days, or even a matter of hours, at which counsel is appointed if the defendant is indigent, the defendant is formally advised of the charges in the criminal complaint, and bail is set (or denied for cause or waived). Confusingly a first appearance is sometimes called an "arraignment on the complaint", but I am assuming that your question used the term "arraignment" in the predominant sense of an arraignment on an information or indictment. Then, in felony cases (but not misdemeanors), the criminal complaint is reviewed for probable cause following a preliminary hearing and if probable cause is found to exist it is converted to an "information" (if the preliminary hearing is waived by the defendant, the complaint is automatically converted to an "information"); or a grand jury reviews the criminal complaint for probable cause and if probable cause is found to exist it is converted to an "indictment." The defendant is arraigned in person on the information or indictment. In an arraignment, the defendant is formally informed of the charges in the information or indictment, and the defendant enters a preliminary plea to each of the charges in the information or indictment. This would typically take five minutes to half an hour, depending upon the number of charges brought. Pre-trial proceedings (e.g., "discovery" and motion practice), if any, are conducted by the lawyers for the prosecution and the defense. A trial is held (if the defendant demands it, before a jury). Caveat: There are also more steps prior to the filing of a criminal complaint or arrest (related to searches, seizures and interrogations), and there are also more steps after the trial (related to sentencing, appeals and collateral attacks on convictions and the sealing of records and pardons and commutations), but none of those steps are pertinent to this question. A jury trial would simply never be (definitively and officially) scheduled until an arraignment of the defendant was conducted. So, while it is true that a jury trial would not be conducted on charges in an indictment until the defendant is arraigned (i.e., until the defendant enters a plea to the probable cause screened charges), in the ordinary course, this is a trivial matter. But, because criminal trials can only be conducted after a defendant has been arraigned in person, the only time that a defendant can be tried in abstentia (i.e., without being present at the trial), is when the defendant is arraigned and enters a not guilty plea or the equivalent, and then absconds after that points but before the trial is conducted. (I'm not a complete expert on this, it may be necessary for the defendant to be present when the trial is commenced as well, but I don't need to know to answer this question.) Also, while the requirement of an indictment by a grand jury for felonies exists in federal court under the U.S. Constitution, and in some state courts (mostly in the Eastern U.S.) under state constitutions, the U.S. Constitution permits a state to substitute a preliminary hearing giving rise to an "information" for a grand jury indictment if its state constitution permits. My source for this post is a hard copy of the book Israel, Kamisar and LaFave, Criminal Procedure and the Constitution (1994). But, these basic principles have been in place unchanged for a very long time. | united-states This answer is based upon general principles of criminal procedure in the United States which are quite similar in most states, although not necessarily exactly identical. The answer is likely to be different in other jurisdictions. If inadmissible evidence is offered by the prosecution and admitted at trial, this is a ground upon which the defense can move for a mistrial (which due to double jeopardy amounts to an acquittal), or upon which the defendant can appeal the conviction of the jury, if convicted. Acquittals of a defendant at trial cannot be appealed by the prosecution. But, to appeal, the error in admitting inadmissible evidence must be contemporaneously objected to by the defendant's lawyer (or the defendant if the defendant is not represented by counsel), or the admission of the evidence must be "plain error" (which is very rarely met on evidentiary issues). If the defendant's lawyer doesn't promptly say "I object" that ground for contesting a conviction is usually lost. Even then, the standard of review on appeal is whether the judge abused the judge's discretion in admitting the evidence, not whether the appellate court would have ruled the same way if presented with that evidentiary question. Also, even if there is an error, a conviction on a particular count will not be overruled if the error was "harmless", which is to say that there is a reasonable possibility that admitting the inadmissible evidence caused the defendant to be convicted of that count. Often, if the evidence is overwhelming, or the inadmissible evidence wasn't that prejudicial, a conviction will be affirmed notwithstanding the admission of inadmissible evidence. Sometimes harmless error is evaluated considering all of the errors at trial as a whole, rather than individually, in addition to all of the other evidence admitted at trial. If an evidence issue can be foreseen and is central to the case (e.g. suppression of evidence of possession of drugs in a drug possession case), the issue of the admissibility of the evidence will often be resolved in a pre-trial hearing and subject to appeal then, prior to trial, rather than being resolved in the trial itself where the prosecution has no right to appeal, and the defendant risks conviction if the ruling goes against the defendant. If the conviction is overturned on appeal, the usual remedy is to remand the case to the same judge to conduct a new trial with a new jury, in a manner consistent with the appellate court's rulings. |
Can prisoners of war be exchanged against their will? Assume the following situation: You live under an authoritarian regime. Your country is at war with another country, which has a far more favorable human rights record. Your attitude of your regime is critical, and you see the war as unjustified. Nonetheless, you were drafted (or became a career soldier, maybe during better times) and are now required to fight in this war. The other side captures you, making you a prisoner of war. You are glad it turned out this way, believing this is the end of the war for you. Now both sides are arranging a prisoner exchange, and you are informed that you are among those who will be repatriated. However, you would rather remain a prisoner until the end of the war than be returned to your country. Not only do you no longer wish to live under that regime and support it, you may also face punishment in your country, e.g. for surrendering to the enemy. What international law would apply to such a situation? Would it allow the repatriation of a POW against their will? Are there any further circumstances that would make a difference here? | One option would be for the PoW to claim asylum as a refugee in the "capturing" country or, for example, via an international human rights organisation: Refugees are defined and protected in international law. The 1951 Refugee Convention is a key legal document and defines a refugee as: "someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Source: UNHCR That said, things like political objectives, diplomatic negotiations, military strategies, and the prisoner's "value" (on both sides) may influence decisions around which prisoners are exchanged and when. | Claiming to be independent is probably not a crime: the family that say they have set up the Principality of Sealand have never been prosecuted (though that may have something to do with the difficulty of arresting them). It does not, however, excuse a British subject from the ordinary duties of paying taxes and the like; anyone in a more accessible (and more clearly British) part of the country would be subject to the normal forms of law enforcement, including imprisonment for contempt of court if they refused to obey court orders. Despite the more eccentric theories of the 'sovereign citizen' movement (who do exist in the UK), the fact that somebody living in Britain is subject to British laws is not open to negotiation. Resisting this law enforcement by force would not be a good idea: as well as the fact that the Government has access to bigger and better armed forces than you do, it would probably render you guilty of treason. The Treason Act 1351 (as amended and translated) makes it illegal to "levy war against our lord the King in his realm, or be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere"; the good news is that the death penalty for treason was abolished in 1998 (some time after that for murder). | No, if, as you say we put aside the human rights questions surrounding the death penalty itself and assuming that the prisoners had been legitimately charged, convicted and had exhausted their appeals process. Once a person has been convicted, sentenced to death and has exhausted their appeals then the timing of the execution passes from the judicial branch to the executive branch of government. This is why governments can implement and remove moratoriums on executions at their discretion. Doubtless there are administrative rules and logistical issues involved in the actual timing of the execution but if these have all been correctly dealt with then they are essentially held at the pleasure of the person in the government charged with the decision. Was it legal? Probably. Was it ethical? ... | The International Covenant on Civil and Political Rights, in effect since 1976 and currently signed by about 179 countries, has in Article 12 Paragraph 4: No one shall be arbitrarily deprived of the right to enter his own country. It's not absolute, as it would allow for a person to be deprived of that right if it weren't "arbitrary". But it's the strongest statement I've found so far. | Article 8 is pretty clear. The fact that it is recommended to extend the draft to women indicates that there is a conflict needing resolution. A relevant case before the European Court of Human Rights ruled on this and found the law to violate articles 14 and 8 of the ECHR. They identify an exoneration from the tax under the Military-Service Exemption Tax Act sect. 4. Reading the judgment could be helpful (maybe you know the case). What I get from it is that there are a bunch of situation-specific details that could be applied (e.g. you have to first complain formally in-country before going to ECHR), and issues of disability level and the distinction between disability and illness. This gives a model for anyone to attempt to resist the tax, but only a change in the law will get rid of it. | Bonded labor is illegal in India, but enforcement is lax. Read Right against exploitation in Fundamental rights in India. The right against exploitation, given in Articles 23 and 24, provides for two provisions, namely the abolition of trafficking in human beings and Begar (forced labour)... As per law, they cannot make the contract binding if it relates to bonding of the laborer. But a general contract may stand in court if they have made you sign the contract and paid the duty to government for the contract. This contract will be mild form of Bonds/begar-contracts. As per the requirements of the contract, usually they will ask you to give them your original documents and degree certificate. Do not do that. That will give them control, and it's illegal. From personal experience, such companies are phonies and they want to exploit you. Visa thing is a scare. As per they wont give me Experience letter and Releasing letter; they might do that, and so you will not be able to show experience. You can file a lawsuit against them. (But you know it's a waste of time in Indian courts) As per first three things you mentioned: It is written on my company's letter head. It doesn't contain any stamp paper. It doesn't contain any company seal. It's not a contract. Do not provide them your actual signatures. Make a strange signature so that you can later argue that it's not your signature. But think about the consequences: You are going to that (probably shady) company, do you think they will hold any of their promises later, at all. Think: Will the company stay in business until your bond is over? Then how will you get an Experience certificate? That ends the answer. A few suggestions I'd suggest finding a different job. I'd suggest talking to a lawyer. It's cheaper than your life being screwed up. I'd suggest talking to your family about it. Nothing written here constitutes legal advice. Talk to a lawyer to get a legal opinion on the matter. | NO (mostly). Servitude means that the employer, or owner of the indenture, or whatever, can use physical force to make the indentee carry out the work given. If the indentee runs away they can be arrested and forcibly returned. This is distinct from the law of contracts. If Alice agrees to provide labour for Bob and subsequently fails to fulfil the contract then Alice may have to pay damages, but that is all. Even in cases of crminial fraud where Alice never meant to provide the labour in the first place, the penalty is defined by law, and would not be the provision of the contracted labour. As the OP notes, military service is generally an indenture-style contract; desertion is a crime. However the other party in that case is the government acting under law rather than a third party acting in their own self-interest. The Universal Declaration of Human Rights prohibits all forms of servitude. | The most commonly used definition for statehood is the declaratory theory, codified by the Montevideo Convention. This says that statehood doesn't depend on recognition by other states; it merely requires four things: A defined territory A permanent population An effective government The capacity to enter into relations with other states. You immediately run into issues around the defined territory (you don't really have one) and the capacity to enter into relations with other states. But let's ignore those for a second. Meeting these requirements in some abstract world doesn't mean you get treated like a state. If no one else agrees with your claim to statehood and they act inconsistently with it, you have little recourse. You might get them not caring enough to do anything about it, but if they decide you're not a country you're out of luck. You have some misconceptions about statehood as well. A country is allowed to forbid trade with any foreign country, even ones it recognizes as sovereign states. See: US embargo on Cuba. It is also entitled to deny foreign ships access to its ports. Ships flying the flag of a sovereign state are entitled to innocent passage through territorial waters of another state, but not to the use of that state's ports. A country can certainly allow people to be killed and still be a country. See: the US, which has the death penalty for certain crimes. But if you're killing nationals of a foreign country, that foreign country is likely to take a keen interest in your activities. If the killings are judicially-ordered executions based on violations of your penal laws, that's one thing -- Australia might consider it awful that an Australian citizen was shot by Indonesia for drug smuggling, but they recognize that Indonesia is a real country with its own laws that it has a right to apply. If it's just lawless there, the keen interest might culminate in a travel warning. But in more extreme cases, or where the killings are of people who didn't willingly enter your territory, you're looking at potential military action. |
Made in USA (or made in IL) I am making a printed circuit board. The board was designed in Illinois, and it will be manufactured locally by a company also in IL, and it will be assembled (boards cut and components soldered) locally, in IL. However, the components that are soldered to the board are manufactured throughout the world (i.e., the resistors, capacitors and integrated circuits (ICs)). Some are manufactured by US companies, and some are even made here in the US, but the majority of the components are manufactured outside of the the US. I would like to print on the board 'Made in USA' or 'Made in IL, USA' or some variant of that. But I know that the laws are very strict due to historical abuses. Since most of the parts are made outside of the US, can I do this legally? Thanks in advance | It is unlikely you can call this "Made in USA." The standard for marking a product as USA is that "all or virtually all" of it be made in the U.S. This is different for markings for export. If you are manufacturing something YOU need to learn this stuff. Dig in to the following website: https://www.ftc.gov/business-guidance/resources/complying-made-usa-standard | That is a very broad clause, broader than the default US rule for copyright, for example. (I know the question asked about the UK, I just happen to know the US copyright rule.) It would seem on the face of it to include independent research on a subject totally unrelated to the person's employment, done off the company's premises and not during normal work hours, but while the person was an employee.. Indeed it would arguably include the copyright to a novel written off premises and during off hours. Use of "course of employment" (instead of "term") would improve the provision. so would "as a part of his or her employment" or "closely related to the subject of his or her employment". Another possible restriction would be "Using the Company's facilities and/or equipment, or during normal working hours". However, my experience is that an employer will have drafted whatever language it uses through its company lawyer, and will be quite unwilling to alter it in any way. A prospective employee will probably be faced with a take-it-or-leave-it choice unless that person is a nearly indispensable figure to the company. One could send the company a certified letter saying, "When i signed the contract agreeing to {company language} I did not intend to include any developments made off company premises, not using company equipment, and unrelated to the subject or scope of my employment. I retain full rights to any such developments." Such a letter would help establish that there was no meeting of the minds to assign such non-employment-related developments or IP to the Company. How much weight it would have if the rights to such developments were the subject of a court case I am not sure. | My understanding is that this isn't a contractual term, but rather a warning that the items don't satisfy legal requirements for individual sale. The seller and manufacturer likely don't care whether you resell the items, but the government does. In the US, at least, regulations of the Food and Drug Administration require that (with certain exceptions) food items sold at retail must be marked with a Nutrition Facts label, showing calorie counts, fat and sugar content, and so on. The FDA has information on this requirement, including citations to the relevant sections of the Code of Federal Regulations (CFR). For example, if you buy a big multipack of tiny ("fun size") candy bars, the manufacturer usually won't have printed Nutrition Facts on each candy bar's wrapper (because it's too small). There will instead be a label on the outer bag. As such, you can't legally resell the candy bars individually, because they don't meet labeling requirements. In fact, in the FDA page I linked above, you can see that manufacturers are required to print "This unit not labeled for retail sale" on individual items if they don't have Nutrition Facts labels. See the 12th item in the table of exemptions. | In the US, a patent holder has no obligation at all to use their patent. They can charge as much for their patented product as they want, and if there are no alternatives then they're in a pretty good market position. If Intel wants to make more microchips and ASML won't sell them the tools they need, Intel just has to offer more money. It's a monopoly, but that's the whole reason patents exist: giving inventors a monopoly on their inventions in exchange for publishing how they work. There is such a thing as using a patent anticompetitively, but it takes a lot more than charging a high price. Your Pfizer example runs up against one of the limits of patents, though. Patents are a government-supported monopoly, and they're only useful as long as the government keeps supporting them. A government has the sovereign power to say "we're not going to enforce this patent." If the company has facilities in that country, the government even has the power to say "you must manufacture more of this product." This is rare. Most countries are subject to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which says they will provide a patent system that's also available to foreigners. But TRIPS allows countries to authorize the unlicensed use of patents to supply their domestic market under appropriate circumstances. The patent owner still has to be paid a fair amount, but the patent isn't ironclad. Countries can also issue compulsory patent licenses to produce drugs for export to other countries, again under appropriate circumstances. You could also have an ad hoc agreement between WTO members to make new TRIPS rules for something. This last option was actually discussed to waive COVID-19 vaccine protection worldwide, although it didn't end up happening. If Pfizer was charging $1,000,000 per dose, it probably would have happened. As was said in the comments, the Pfizer example was extreme. If Intel can't expand chip production because of ASML's patent, that's basically a commercial problem and should be solved by paying ASML more money. If people can't get COVID vaccines because Pfizer charges too much, that's a humanitarian problem and can be solved through government intervention. | Interestingly enough, this has been planned - but not completed. South Korea: Robot Ethics Charter In 2007, South Korea worked towards establishing the Robot Ethics Charter, a guide for manufacturers a designers of robots. South Korea is a strong robotics and electronics manufacturer, and wants to expand robotics to help the economy. There were several news articles in 2007 about work on the Charter, but I have yet to find anything else significant about it. Further reading indicates that the plan most likely fell through. | It may be illegal under product labelling regulations that apply to that kind of product (or under a general deceptive trade practices act), but even then, only if you are interpreting the numbers, whose meaning is not clearly spelled out, correctly. But, to be actionable as fraud it must, among other things, be a misrepresentation as to a material fact (which if the goods, such as cordless drills, are not perishable it probably isn't) and the recipient of the misrepresentation must have justifiably relied upon the misrepresentation (which is necessary not true in the case of a representation that it was made in December 2018 on a product sold no later than July of 2018). It is also not entirely clear that this is a "made on" date. It could refer, for example, to the the twelfth batch or lot or shipment of products made in 2018, and not to the month of December, or it could refer to a product made in 2018 at factory number 12. @NateEldredge in the comments also makes the plausible observation that it could be a week number which is a common system in manufacturing which would put it in a more reasonable March 2018 time frame. You probably shouldn't do anything, because you haven't been harmed by this cryptic string of numbers embossed on the product, and even if you were, your damages would not be worth the time or money involved to pursue it as anything other than part of a class action lawsuit. | It is hard to know with certainty why this distinction was made in this case. There is a fair amount of gamesmanship that goes into having a device classified as an administrative matter in dealings with a regulatory agency, since the details are technical and the language of the regulations is subject to differing interpretations. This is why attorneys in this area get paid the big bucks. I can't tell you precisely what went into each determination but the relevant regulations restated below, at least, gives you a sense of what the issues that can be fought over in those discussions can be. I suspect that the arguments probably involve whether or not evidence was presented to the relevant regulators by the manufacturers that particular items were or were not sold as "mass market encryption commodities", perhaps based upon sales data or information about how the different items are marketed. It could also be that the regulators a exercising discretion to "flex their regulatory muscles" less aggressively in the case of E.U. source products that could be sold directly outside of U.S. distributions channels anyway, entirely avoiding interfacing with the U..S. export control regime, in order to encourage commerce to be routed through U.S. companies instead. In contrast, the Japanese manufacturer may not have had the same direct distribution network available to it, or may not have had someone as skilled to advocate for it on this basis in the regulatory process. Relevant Legal Authority The legal authority that pertains to this question is set forth below, but even after reading all of it, it isn't manifestly clear why there is a difference so we are left to read between the lines as I have done above. The primary regulation is found here (the first seven pages are the ones applicable to this question). The introductory material for Category 5A002 states: Related Controls: (1) ECCN 5A002.a controls “components” providing the means or functions necessary for “information security.” All such “components” are presumptively “specially designed” and controlled by 5A002.a. (2) See USML Categories XI (including XI(b)) and XIII(b) (including XIII(b)(2)) for controls on systems, equipment, and components described in 5A002.d or .e that are subject to the ITAR. (3) For “satellite navigation system” receiving equipment containing or employing decryption see 7A005, and for related decryption “software” and “technology” see 7D005 and 7E001. (4) Noting that items may be controlled elsewhere on the CCL, examples of items not controlled by ECCN 5A002.a.4 include the following: (a) An automobile where the only ‘cryptography for data confidentiality’ having a ‘described security algorithm’ is performed by a Category 5 – Part 2 Note 3 eligible mobile telephone that is built into the car. In this case, secure phone communications support a non-primary function of the automobile but the mobile telephone (equipment), as a standalone item, is not controlled by ECCN 5A002 because it is excluded by the Cryptography Note (Note 3) (See ECCN 5A992.c). (b) An exercise bike with an embedded Category 5 – Part 2 Note 3 eligible web browser, where the only controlled cryptography is performed by the web browser. In this case, secure web browsing supports a non-primary function of the exercise bike but the web browser (“software”), as a standalone item, is not controlled by ECCN 5D002 because it is excluded by the Cryptography Note (Note 3) (See ECCN 5D992.c). (5) After classification or self-classification in accordance with § 740.17(b) of the EAR, mass market encryption commodities that meet eligibility requirements are released from “EI” and “NS” controls. These commodities are designated 5A992.c. Category 5A992.c, meanwhile, means "Equipment not controlled by 5A002" because it is one of the "Commodities classified as mass market encryption commodities in accordance with § 740.17(b) of the EAR." This states: (b) Classification request or self-classification. For certain products described in paragraph (b)(1) of this section that are self-classified, a self-classification report in accordance with paragraph (e)(3) of this section is required from specified exporters, reexporters and transferors; for products described in paragraph (b)(1) of this section that are classified by BIS via a CCATS, a self-classification report is not required. For products described in paragraphs (b)(2) and (3) of this section, a thirty-day (30-day) classification request is required in accordance with paragraph (d) of this section. An exporter, reexporter, or transferor may rely on the producer's self-classification (for products described in (b)(1), only) or CCATS for an encryption item eligible for export or reexport under License Exception ENC under paragraph (b)(1), (2), or (3) of this section. Exporters are still required to comply with semi-annual sales reporting requirements under paragraph (e)(1) or (2) of this section, even if relying on a CCATS issued to a producer for specified encryption items described in paragraphs (b)(2) and (b)(3)(iii) of this section. Note to paragraph (b) introductory text: Mass market encryption software that would be considered publicly available under § 734.3(b)(3) of the EAR, and is authorized for export under this paragraph (b), remains subject to the EAR until all applicable classification or self-classification requirements set forth in this section are fulfilled. (1) Immediate authorization. This paragraph (b)(1) authorizes the exports, reexports, and transfers (in-country) of the associated commodities self-classified under ECCNs 5A002.a or 5B002, and equivalent or related software therefor classified under 5D002, except any such commodities, software, or components described in (b)(2) or (3) of this section, subject to submission of a self-classification report in accordance with § 740.17(e)(3) of the EAR. Items described in this paragraph (b)(1) that meet the criteria set forth in Note 3 to Category 5 - Part 2 of the Commerce Control List (the “mass market” note) are classified as ECCN 5A992.c or 5D992.c following self-classification or classification by BIS and are removed from “EI” and “NS” controls. (2) Classification request required. Thirty (30) days after the submission of a classification request with BIS in accordance with paragraph (d) of this section and subject to the reporting requirements in paragraph (e) of this section, this paragraph under License Exception ENC authorizes certain exports, reexports, and transfers (in-country) of the items specified in paragraph (b)(2) and submitted for classification. Note to paragraph (b)(2) introductory text: Immediately after the classification request is submitted to BIS in accordance with paragraph (d) of this section and subject to the reporting requirements in paragraph (e) of this section, this paragraph also authorizes exports, reexports, and transfers (in-country) of: All submitted encryption items described in this paragraph (b)(2), except “cryptanalytic items,” classified in ECCN 5A004.a, 5D002.a.3.a or c.3.a, or 5E002, to any end user located or headquartered in a country listed in supplement no. 3 to this part; Encryption source code as described in paragraph (b)(2)(i)(B) to non-“government end users” in any country; “Cryptanalytic items,” classified in ECCN 5A004.a, 5D002.a.3.a or c.3.a, or 5E002, to non-“government end users,” only, located or headquartered in a country listed in supplement no. 3 to this part; and Items described in paragraphs (b)(2)(iii) and (b)(2)(iv)(A) of this section, to specified destinations and end users. (i) Cryptographic commodities, software, and components. License Exception ENC authorizes exports, reexports, and transfers (in-country) of the items in paragraph (b)(2)(i)(A) of this section to “less sensitive government end users” and non- “government end users” located or headquartered in a country not listed in supplement no. 3 to this part, and the items in paragraphs (b)(2)(i)(B) through (H) to non “government end users” located or headquartered in a country not listed in supplement no. 3. (A) 'Network Infrastructure.' ' Network infrastructure' commodities and software, and components therefor, meeting any of the following with key lengths exceeding 80-bits for symmetric algorithms: (1) WAN, MAN, VPN, backhaul and long-haul. Aggregate encrypted WAN, MAN, VPN, backhaul or long-haul throughput (including communications through wireless network elements such as gateways, mobile switches, and controllers) equal to or greater than 250 Mbps; (2) [Reserved] (3) Satellite infrastructure. Transmission over satellite at data rates exceeding 10 Mbps; (4) Media gateways and other unified communications (UC) infrastructure, including Voice-over-Internet Protocol (VoIP) services. Media (voice/video/data) encryption or encrypted signaling to more than 2,500 endpoints, including centralized key management therefor; or (5) Terrestrial wireless infrastructure. Air interface coverage (e.g., through base stations, access points to mesh networks, and bridges) exceeding 1,000 meters, where any of the following applies: (i) Maximum transmission data rates exceeding 10 Mbps (at operating ranges beyond 1,000 meters); or (ii) Maximum number of concurrent full-duplex voice channels exceeding 30; Notes to paragraph (b)(2)(i)(A): The License Exception ENC eligibility restrictions of paragraphs (b)(2)(i)(A)(3) (satellite infrastructure) and (b)(2)(i)(A)(5) (terrestrial wireless infrastructure) do not apply to satellite terminals or modems meeting all of the following: a. The encryption of data over satellite is exclusively from the user terminal to the gateway earth station, and limited to the air interface; and b. The items meet the requirements of the Cryptography Note (Note 3) in Category 5 - Part 2 of the Commerce Control List. 'Network infrastructure' (as applied to encryption items). A 'network infrastructure' commodity or software is any “end item,” commodity or “software” for providing one or more of the following types of communications:” (a) Wide Area Network (WAN); (b) Metropolitan Area Network (MAN); (c) Virtual Private Network (VPN); (d) Satellite; (e) Digital packet telephony/media (voice, video, data) over Internet protocol; (f) Cellular; or (g) Trunked. Note 1 to paragraph 2: 'Network infrastructure' end items are typically operated by, or for, one or more of the following types of end users: (1) Medium- or large- sized businesses or enterprises; (2) Governments; (3) Telecommunications service providers; or (4) Internet service providers. Note 2 to paragraph 2: Commodities, software, and components for the “cryptographic activation” of a 'network infrastructure' item are also considered 'network infrastructure' items. (B) Certain “encryption source code.” “Encryption source code” that is not publicly available as that term is used in § 742.15(b) of the EAR; (C) Customized items. Encryption software, commodities and components therefor, where any of the following applies: (1) Customized for government end users or end uses. The item has been designed, modified, adapted, or customized for “government end user(s);” or (2) Custom or changeable cryptography. The cryptographic functionality of the item has been designed or modified to customer specification or can be easily changed by the user; (D) Quantum cryptography. ECCN 5A002.c or 5D002 “quantum cryptography” commodities or software; (E) [Reserved] (F) Network penetration tools. Encryption commodities and software that provide penetration capabilities that are capable of attacking, denying, disrupting or otherwise impairing the use of cyber infrastructure or networks; (G) Public safety/first responder radio (private mobile radio (PMR)). Public safety/first responder radio (e.g., implementing Terrestrial Trunked Radio (TETRA) and/or Association of Public-Safety Communications Officials International (APCO) Project 25 (P25) standards); (H) Specified cryptographic ultra-wideband and “spread spectrum” items. Encryption commodities and components therefor, classified under ECCNs 5A002.d or .e, and equivalent or related software therefor classified under ECCN 5D002. (ii) Cryptanalytic commodities and software. “ Cryptanalytic items” classified in ECCN 5A004.a, 5D002.a.3.a, or 5D002.c.3.a, to non- “government end users” located or headquartered in countries not listed in supplement no. 3 to this part. (iii) “Open cryptographic interface” items. Items that provide an “open cryptographic interface,” to any end user located or headquartered in a country listed in supplement no. 3 to this part. (iv) Specific encryption technology. Specific encryption technology as follows: (A) Technology for “non-standard cryptography.” Encryption technology classified under ECCN 5E002 for “non-standard cryptography,” to any end user located or headquartered in a country listed in supplement no. 3 to this part; (B) Other technology. Encryption technology classified under ECCN 5E002 except technology for “cryptanalytic items” classified in ECCN 5A004.a, 5D002.a.3.a or 5D002.c.3.a, “non-standard cryptography” or any “open cryptographic interface,” to any non-“government end user” located in a country not listed in Country Group D:1, E:1, or E:2 of supplement no. 1 to part 740 of the EAR. Note to paragraph (b)(2): Commodities, components, and software classified under ECCNs 5A002.b or 5D002.b, for the “cryptographic activation” of commodities or software specified by this paragraph (b)(2) are also controlled under this paragraph (b)(2). (3) Classification request required for specified commodities, software, and components. Thirty (30) days after a classification request is submitted to BIS in accordance with paragraph (d) of this section and subject to the reporting requirements in paragraph (e) of this section, this paragraph authorizes exports, reexports, and transfers (in-country) of the items submitted for classification, as further described in this paragraph (b)(3), to any end user, provided the item does not perform the functions, or otherwise meet the specifications, of any item described in paragraph (b)(2) of this section. Items described in paragraph (b)(3)(ii) or (iv) of this section that meet the criteria set forth in Note 3 to Category 5 - Part 2 of the CCL (the “mass market” note) are classified under ECCN 5A992.c or 5D992.c following classification by BIS. Note to introductory text of paragraph (b)(3): Immediately after the classification request is submitted to BIS in accordance with paragraph (d) of this section and subject to the reporting requirements in paragraph (e) of this section, this paragraph also authorizes exports, reexports, transfers (in-country) of the items described in this paragraph (b)(3) to any end user located or headquartered in a country listed in supplement no. 3 to this part. (i) Non-“mass market” “components,” toolsets, and toolkits. Specified components classified under ECCN 5A002.a and equivalent or related software classified under ECCN 5D002 that do not meet the criteria set forth in Note 3 to Category 5 - Part 2 of the CCL (the “mass market” note) and are not described by paragraph (b)(2) or (b)(3)(ii) of this section, as follows: (A) Chips, chipsets, electronic assemblies and field programmable logic devices; (B) Cryptographic libraries, modules, development kits and toolkits, including for operating systems and cryptographic service providers (CSPs). (ii) “Non-standard cryptography” (by items not otherwise described in paragraph (b)(2) of this section.) Encryption commodities, software and components not described by paragraph (b)(2) of this section, that provide or perform “non-standard cryptography” as defined in part 772 of the EAR. (iii) Advanced network vulnerability analysis and digital forensics. Encryption commodities and software not described by paragraph (b)(2) of this section, that provide or perform vulnerability analysis, network forensics, or computer forensics functions characterized by any of the following: (A) Automated network vulnerability analysis and response. Automated network analysis, visualization, or packet inspection for profiling network flow, network user or client behavior, or network structure/topology and adapting in real-time to the operating environment; or (B) Digital forensics and investigative tools. Items specified in ECCN 5A004.b, 5D002.a.3.b, or 5D002.c.3.b, see supplement no. 1 to part 774 Commerce Control List. (iv) “Cryptographic activation” commodities, components, and software. Commodities, components, and software classified under ECCNs 5A002.b or 5D002.b where the product or cryptographic functionality is not otherwise described in paragraphs (b)(2) or (b)(3)(i) of this section. The critical Note 3 is as follows: Note 3 to Category 5, Part 2 Note 3: Cryptography Note: ECCNs 5A002, 5A003, 5A004 and 5D002, do not control items as follows: a. Items meeting all of the following: Generally available to the public by being sold, without restriction, from stock at retail selling points by means of any of the following: a. Over-the-counter transactions; b. Mail order transactions; c. Electronic transactions; or d. Telephone call transactions; The cryptographic functionality cannot be easily changed by the user; Designed for installation by the user without further substantial support by the supplier; and [RESERVED] When necessary, details of the items are accessible and will be provided, upon request, to the appropriate authority in the exporter’s country in order to ascertain compliance with conditions described in paragraphs 1. through 3. of this Note a.; b. Hardware components or ‘executable software’, of existing items described in paragraph a. of this Note, that have been designed for these existing items, and meeting all of the following: “Information security” is not the primary function or set of functions of the component or ‘executable software’; The component or ‘executable software’ does not change any cryptographic functionality of the existing items, or add new cryptographic functionality to the existing items; The feature set of the component or ‘executable software’ is fixed and is not designed or modified to customer specification; and When necessary, as determined by the appropriate authority in the exporter’s country, details of the component or ‘executable software’, and details of relevant end-items are accessible and will be provided to the authority upon request, in order to ascertain compliance with conditions described above. Technical Note: For the purpose of the Cryptography Note, ‘executable software’ means “software” in executable form, from an existing hardware component excluded from 5A002, 5A003 or 5A004 by the Cryptography Note. Note: ‘Executable software’ does not include complete binary images of the “software” running on an end-item. Note to the Cryptography Note: To meet paragraph a. of Note 3, all of the following must apply: a. The item is of potential interest to a wide range of individuals and businesses; and b. The price and information about the main functionality of the item are available before purchase without the need to consult the vendor or supplier. A simple price inquiry is not considered to be a consultation. In determining eligibility of paragraph a. of Note 3, BIS may take into account relevant factors such as quantity, price, required technical skill, existing sales channels, typical customers, typical use or any exclusionary practices of the supplier. N.B. to Note 3 (Cryptography Note): You must submit a classification request or self-classification report to BIS for mass market encryption commodities and software eligible for the Cryptography Note employing a key length greater than 64 bits for the symmetric algorithm (or, for commodities and software not implementing any symmetric algorithms, employing a key length greater than 768 bits for asymmetric algorithms or greater than 128 bits for elliptic curve algorithms) in accordance with the requirements of § 740.17(b) of the EAR in order to be released from the “EI” and “NS” controls of ECCN 5A002 or 5D002. | Let’s work it through Is the work copyright? Yes. Are you making a copy or a derivative work? Yes. Do you have permission? No. At this point, it is prima facie copyright violation. However, various copyright laws have defences for breach. You don’t say where you are but as the USA is the most permissive in this regard we’ll use the USA. If it’s not legal there, it’s not legal anywhere. If it is legal there, it’s still likely to be not legal everywhere else. is it fair use? Almost certainly not. Wizards of the Coast (the copyright owner) already do this. While this service is free for creatures from the Monster Manual, it does drive traffic to their web site where they sell stuff. They also licence (presumably for money) others to do the same. Your usage would negatively affect the copyright owners market. This counts against fair use. Because it’s already being done, your work has virtually nil transformative value. This counts against fair use. You are copying a substantial part of the work. This counts against fair use. You are not using it commercially but neither is it for educational use. This is unlikely to matter. On balance: not fair use. TL;DR This is copyright violation. |
Alice's restaurant profiteering from those with allergies Suppose Alice has a restaurant where she serves pies for £10. She can make them with gluten free bases for the allergic, and these bases cost her £3 over the regular ones' £0.5. However, to make one a gluten free pie, she charges £14 thereby profiting more from the allergic than the non-allergic. Is she committing unlawful discrimination or otherwise behaving in an unlawful manner? Edit: I think the rationale is most likely they see that many people are willing to pay more for the gluten free so they charge extra. They don't realize that for some it isn't a choice and so thus their attempt to profiteer from a trend could possibly be illegal. | Is she committing unlawful discrimination or otherwise behaving in an unlawful manner? No. She would be — if she was saying like "customers with Celiac disease pay £14, others £10". But instead, she simply offers different products at different prices. She makes it clear which option is what. Everyone can buy the option of their choice for the same price — she is happy to sell either or both options to whoever chooses them regardless of their allergies or disabilities. | Your first course of action should probably be to return to the store, explained what happened, and ask either for another jar of peas or for your money back. Bring your receipt and the jar of peas with the moth in it. If the store refuses to refund your money or replace the jar of peas, you might try approaching the manufacturer. In my experience, European packaged foods have a telephone number for customer service among the fine print on the back of the label. If the manufacturer is no help, you could consider taking legal action, but the costs of doing so would be far greater than any benefit you are likely to realize. That is the same reason why the store and the manufacturer will probably handle your claim without much resistance; the cost of resisting is far higher than the cost of a jar of peas. | I will assume B.C. as your specific jurisdiction: there could be provincial differences. As phoog says, you certainly may mention this problem to management, who have an interest in keeping you happy. No law against that. As for the "legality" of sexual harassment, the CBA BC branch says that "Sexual harassment, which is discrimination based on sex, is illegal under the BC Human Rights Code". It is interesting to see what the code actually says. Section 8 Discrimination in accommodation, service and facility says (1) A person must not, without a bona fide and reasonable justification, (a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or (b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons. The question is whether using the term "babe" constitutes discrimination against a person regarding service because of sex. This article on the Law Society of BC web site specifically identifies "verbal harassment" as an instance: Verbal harassment – This comes from anyone within the firm and or other workplace or a person who does business with the firm or company. Some examples are: referring to an adult as a babe, honey, girl or stud; whistling at someone; turning work discussion to sexual topics; asking personal questions of a sexual nature; making sexual comments about a person’s clothing, anatomy or looks; or asking someone repeatedly for dates and refusing to take no for an answer. (emphasis added). In case you're thinking that maybe there's a difference in what the code says regarding services and what it says regarding employment, section 13 Discrimination in Employment says: (1) A person must not (a) refuse to employ or refuse to continue to employ a person, or (b) discriminate against a person regarding employment or any term or condition of employment because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person. In other words, it is defined simply in terms of "discrimination", which means "making a distinction". It is known that unwanted sexual advances constitute illegal discrimination, see Janzen v. Platy Enterprises Ltd. [1989] 1 SCR 1252. The court found that Sexual harassment is a form of sex discrimination. Sexual harassment in the workplace is unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job‑related consequences for the victims of the harassment. They did not, however, find that this is the only form of sexual discrimination (obviously, since it isn't). I can't point to case law indicating whether gender-biased expression are actionable, but that would be consistent with the letter of the law and "babe" is indeed an example cited in the Law Society article. | I've found Commission Decision 2003/675/EC which sheds light on what exactly happened here (more digestable press release here). Basically, there was a dispute involving Nintendo and its various independent distributors who had exclusive distribution rights in their respective territories, Bergsala AB for Sweden. Note this wasn't simply a matter of Bergsala's rights being violated, but rather a scheme to reduce parallel imports/exports which the Commission found to be anti-competitive. For most parties, this was brought to an end in December 1997 (see section 2.2.11 on pgs. 54-55). So no, there was no change in the law, but the anti-competitive scheme stopped in late 1997. Weirdly this should have resulted in the possibility for more imports, but since those imports would no longer have artificially higher prices, perhaps the advertisements and/or imports were no longer worth economically worth it. Or perhaps Bergsala pivoted to greater enforcement the exclusive rights it did have, even if this didn't include the ability to block parallel imports according to EU competition law. In any case, trade of Nintendo products in Europe was greatly altered in late 1997. Please take my summary with a grain of salt, I'm not very well versed in the field of commerce and I've already misunderstood the decision at least once; check the cited decision for proper details. | The most important fact to bear in mind is that there's no way to predict whether a given individual will decide to file a suit against you, though we might say on what basis he might, if he so chooses. There are two basic grounds for a suit, one pertaining to trademarks and the other pertaining to use of names – misappropriation and violating the right of publicity. A word can be a trademark, but the scope of protection is somewhat narrow because the protection is in terms of use within a given business. So calling your computer company "Apple" is out, but calling you roofing service the same is okay (assuming that somebody didn't previously register "Apple Roofing"). The main consideration is the likelihood of confusion. Supposing your business were selling landline telephones and I don't think Apple computer company sells such phones, you might still be in trouble if you called your company "Apple Phone", since they certainly do sell phones. There are thousands of trademarks that include "Puff", including Cocopuffs and various pizza and cheese puffs. Since "Puff" is such a generic word, there is a higher bar to proving infringement (there are thousands of trademarks including "Puff"). "Puff Daddy" is, however, a registered trademark covering perfume, jewelry, clothing and certain online services, so there is a non-negligible chance of confusion. In the case of names (or apparent names), an additional concern is whether this is commercial exploitation without consent of a person's name (which causes harm to the subject). The underpinning of this tort is that such a use falsely implies an endorsement of the product. Again, with a fairly generic word like Puff, there isn't a clear implication that Sean Combs has endorsed a product that is called "Puff Communications", but "Puff Daddy Communications" would almost certainly cross that line. The main issues, then, are the extent to which the name is generic vs. unique, and whether it is likely that a person would interpret the product or service as being the same as another, or would constitute an endorsement. | My thinking is that there was no meeting of the minds, thus no acceptance. ( I can see that shipping the goods implies acceptance, however I understand that acceptance implies a meeting of the minds - and there would have been subterfuge to modify the return page with the lower amount - thus at the moment of apparent acceptance there was no actual acceptance) I doubt you would have a case against the other party criminally, but quite possibly in a civil court. | Neither The contract is completed when each party has totally fulfilled its obligations under the contract. In this case, it is when the purchaser has consumed or otherwise dealt with the banana to their satisfaction. The vendor has ongoing obligations under the contract until this happens. For example, obligations that the banana is of merchantable quality and fit for purpose. If the purchaser peels the banana and discovers that it is "off" or eats the banana and develops food poisoning then the vendor still has obligations and can be sued under the contract. Yes, I realize that no one is going to sue anyone over a rotten banana but let's assume that "banana" is code for 54km of motorway construction and £1 is actually £1 billion. When is the contract formed? This is not a trivial determination and there are literally hundreds of thousands if not millions of lawsuits that have turned on this exact question. Once the contract is formed its binding on both parties; until then, either can walk away (subject to estoppel) The traditional analysis involves offer and acceptance. In your banana scenario, the shop displaying "Banana's: 50p/each" (it's a fruit shop - they always have unnecessary apostrophes) is not an offer - it is an invitation to treat. An offer is made by Ben placing the banana on the counter and proffering the £1, it is accepted by Sam taking the £1. At this point, the sale is binding on both parties. Ben has fulfilled all his obligations under the contract, Sam still has some. In addition to those discussed above, he owes Ben 50p. Strictly speaking, this is not an obligation under the contract but a debt due and payable. Consumer protection law The proceeding is a strict contract law interpretation - many jurisdictions have consumer protection legislation (and food safety laws for bananas) that impose additional protections and may change the contract law position. | The customer list is indeed a trade secret if the shop kept its customer list secret and has an advantage from having that customer list, while others don’t have it. And I would think that is the case, because a competitor laying their hands on the list could for example send special offers to the customers in the list. The question is whether your two hairdressers took that customer list and whether the store has reasonable evidence that they did. If customers find out where their favourite hairdresser moved to that’s no legal problem. Can’t understand why no attorney wants to take the case. To the attorney it doesn’t make a difference whether they took the list or not. If they took the list then his or her job is to end the case with the smallest possible amount of damages being paid. PS. Just read in the comments that there is an accusation of "intentional interference with economic relationship". I would want a lawyer who knows the difference between perfectly legal competition which includes trying to get customers to move their business, and "intentional interference with economic relationship". PS. Really make sure that these guys appear in court. With a lawyer. Not appearing means that if the plaintiff says "Judge, these guys did X, punish them!" and they are not there to say "We absolutely didn't do X, prove it if you can", the judge will assume that they did X. |
Is being left-handed a protected class in US discrimination law? This is based on a recent (but no longer available) question that was asked on The Workplace but was not well-received there. US federal law provides for robust protections from discrimination for many different reasons - race, gender, religion, presence of a disability, etc. Is being left-handed a protected class in the USA? Most people (IME) would not classify it as a disability per se, but left-handed people do sometimes encounter problems with tools that were designed for right-handed users and may need accommodations such as re configuring of workplace equipment or the provisioning of left-handed models of common tools such as scissors, so it stands to reason that some discrimination could be present, such as an employer wishing to hire only right-handed people in order to avoid the expense of purchasing equipment designed for left-handed people. So, Being left-handed isn't a race (people of all races can be right or left-handed). Being left-handed isn't a gender (people of all genders can be right or left-handed). Being left-handed isn't a religion. Being left-handed might (?) be a disability. I'm primarily interested in US federal law such as the Americans with Disabilities Act (ADA), but am open to answers that cover state law if there is a state that has explicit provisions that southpaws are or are not protected from discrimination. | In the US, it seems not It appears that left-handedness is not considered a disability under the Americans with Disability Act (ADA). The "ADA Title III Technical Assistance Manual" reads in relevant part: Simple physical characteristics such as the color of one's eyes, hair, or skin; baldness; left-handedness; or age do not constitute physical impairments. Similarly, disadvantages attributable to environmental, cultural, or economic factors are not the type of impairments covered by title III. Moreover, the definition does not include common personality traits such as poor judgment or a quick temper, where these are not symptoms of a mental or psychological disorder. This is the most direct statement on the ADA and left-handedness I have been able to find. The actual implementing regulations and the statutory language are not so clear. I have not found any case in which a claim was made under the ADA which cited left-handedness as a disability udner the ADA, either the original act or as amended. Section § 36.105 of the ADA regulations defines disability. It reads, in relevant part: (a) (a) (1) Disability means, with respect to an individual: (a) (1) (i) A physical or mental impairment that substantially limits one or more of the major life activities of such individual; (a) (1) (ii) A record of such an impairment; or (a) (1) (iii) Being regarded as having such an impairment as described in paragraph (f) of this section. (a)(2) Rules of construction. (a)(2) (i) The definition of “disability” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. ... (b) (b)(1) Physical or mental impairment means: (b)(1)(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or (b)(1)(ii) Any mental or psychological disorder such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disability. (b)(2) Physical or mental impairment includes, but is not limited to, contagious and noncontagious diseases and conditions such as the following: orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intellectual disability, emotional illness, dyslexia and other specific learning disabilities, Attention Deficit Hyperactivity Disorder, Human Immunodeficiency Virus infection (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism. (b)(3) Physical or mental impairment does not include homosexuality or bisexuality. (c) (c)(1) Major life activities include, but are not limited to: (c)(1)(i) Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working; and (c)(1)(ii) The operation of a major bodily function, such as the functions of the immune system, special sense organs and skin, normal cell growth, and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive systems. The operation of a major bodily function includes the operation of an individual organ within a body system. (c)(2) Rules of construction. (c)(2)(i) In determining whether an impairment substantially limits a major life activity, the term major shall not be interpreted strictly to create a demanding standard. (c)(2)(ii) Whether an activity is a major life activity is not determined by reference to whether it is of central importance to daily life. (d) Substantially limits. (d)(1) Rules of construction. The following rules of construction apply when determining whether an impairment substantially limits an individual in a major life activity. (d)(1)(i) The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding standard. (d)(1)(ii) The primary object of attention in cases brought under title III of the ADA should be whether public accommodations have complied with their obligations and whether discrimination has occurred, not the extent to which an individual’s impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment substantially limits a major life activity should not demand extensive analysis. (d)(1)(iii) An impairment that substantially limits one major life activity does not need to limit other major life activities in order to be considered a substantially limiting impairment. (d)(1)(iv) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. (d)(1)(v) An impairment is a disability within the meaning of this part if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment does not need to prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section. (d)(1)(vi) The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term “substantially limits” shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for substantially limits applied prior to the ADA Amendments Act. (d)(1)(vii) The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical evidence. Nothing in this paragraph (d)(1) is intended, however, to prohibit or limit the presentation of scientific, medical, or statistical evidence in making such a comparison where appropriate. ... (d)(3) Condition, manner, or duration. (d)(3)(i) At all times taking into account the principles set forth in the rules of construction, in determining whether an individual is substantially limited in a major life activity, it may be useful in appropriate cases to consider, as compared to most people in the general population, the conditions under which the individual performs the major life activity; the manner in which the individual performs the major life activity; or the duration of time it takes the individual to perform the major life activity, or for which the individual can perform the major life activity. (d)(3)(ii) Consideration of facts such as condition, manner, or duration may include, among other things, consideration of the difficulty, effort or time required to perform a major life activity; pain experienced when performing a major life activity; the length of time a major life activity can be performed; or the way an impairment affects the operation of a major bodily function. In addition, the non-ameliorative effects of mitigating measures, such as negative side effects of medication or burdens associated with following a particular treatment regimen, may be considered when determining whether an individual’s impairment substantially limits a major life activity. (d)(3)(iii) In determining whether an individual has a disability under the “actual disability” or “record of” prongs of the definition of “disability,” the focus is on how a major life activity is substantially limited, and not on what outcomes an individual can achieve. Also relevant is "Regulations To Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended" which describes in detail the rule-making process leading to the amended regulations. In "Case of the Big Bus Driver" an article on an ADA employment case, it is said that: It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments. The definition of the term “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within “normal” range and are not the result of a physiological disorder. | I, semi-contrarily, speculate that the answer is "yes", as long as we understand your question to be about religion, since that is what is legally relevant in terms of discrimination law. The EEOC "answers" the question in 29 CFR 1605.1, saying In most cases whether or not a practice or belief is religious is not at issue. However, in those cases in which the issue does exist, the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. This standard was developed in United States v. Seeger, 380 U.S. 163 (1965) and Welsh v. United States, 398 U.S. 333 (1970). The Commission has consistently applied this standard in its decisions. The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee. The phrase “religious practice” as used in these Guidelines includes both religious observances and practices, as stated in section 701(j), 42 U.S.C. 2000e(j). The question then is what the court said in those cases that could possibly be construed as a definition of "religion". The case of Seeger, which pertains to conscientious objector status and the draft, held the following relevant points: The test of religious belief within the meaning of the exemption in §6(j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption. Observe that the court does not generally define religion here, rather, it strives to interpret a clause in the Universal Military Training and Service Act, 50 U.S.C.App. § 456(j), which denies that there is a requirement to serve in the military on any person "who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form". The statutes more specifically says: As used in this subsection, the term "religious training and belief" does not include essentially political, sociological, or philosophical views, or a merely personal moral code. Congress, then, also did not attempt to define "religion", rather it used that term to refer to certain undefined beliefs (it them becomes the court's job to define the term, relative to the act). Seeger also holds that Local boards and courts are to decide whether the objector's beliefs are sincerely held and whether they are, in his own scheme of things, religious; they are not to require proof of the religious doctrines, nor are they to reject beliefs because they are not comprehensible. This means that, w.r.t. the draft and the religious exemption, the basis for deciding is whether the beliefs are sincere, and whether they are in the subjects "scheme of thing" religious. I also bold the clause about not requiring proof of doctrine, since that will be an issue below. In Welsh it was held that: Section 6(j) contravenes the Establishment Clause of the First Amendment by exempting those whose conscientious objection claims are founded on a theistic belief, while not exempting those whose claims are based on a secular belief. To comport with that clause, an exemption must be "neutral" and include those whose belief emanates from a purely moral, ethical, or philosophical source. The significance of this is that the conscientious objector clause flouts the Establishment Clause by specifically giving preferential treatment to beliefs founded on a theistic belief, but not a non-theistic belief. Thus, to be consistent with the Establishment Clause, the term "religious" must be interpreted in a way that does not favor theistic vs. non-theistic beliefs. In both cases, defendants were raised religiously but were not members of a church with an officially pacifist doctrine. Quoting Welsh, the defendants neither could definitely affirm or deny that he believed in a "Supreme Being," both stating that they preferred to leave the question open. Both defendants affirmed on those applications that they held deep conscientious scruples against taking part in wars where people were killed. Both strongly believed that killing in war was wrong, unethical, and immoral, and their consciences forbade them to take part in such an evil practice. Thus, "firm belief" is the interpretation of "religious belief" w.r.t. the draft, and is relied on by the EEOC in their definition of religion. The question of whether white supremacism could be deemed a religion, w.r.t. discrimination laws, came up (and was basically avoided) in Swartentruber v. Gunite. The issue there was that the complainant had Klan tatoos, and his employer told him to cover them up. He sued the company (Gunite) for religious discrimination, to no avail. As the court summarized, he would have to show that (1) he has a sincere religious belief, observance or practice that conflicts with an employment requirement; (2) he informed his employer of the conflict; and (3) the religious practice was the basis for the adverse employment decision. His case failed for a number of reasons, but the crux of his argument was that the "Firey Cross" tattooed on his arm is one of that church's seven sacred symbols (he reports that he is "a member of the Church of the American Knights of the Ku Klux Klan, a religious organization"). However, Mr. Swartzentruber does not present admissible evidence, or even contend without evidence, that being required to cover up his tattoo at work conflicts with his religious beliefs This appears to be at odds with Seeger above, because one is not required to prove that ones religion has a particular doctrine. Since Swartentruber represented himself, this could well mean nothing more than that he failed to make an appropriate assertion about his firmly held beliefs (since one is not required to show that their church has a specific doctrine). The basic reason why Swartzentruber's case failed was, simply, that his employer did in fact offer him a reasonable accommodation. Firing a person, on the other hand, is not a reasonable accommodation. Following the logic of Welsh and Seeger and being mindful of the Establishment Clause, one might well expect that an ideological firing would be a violation of the religious discrimination part of the Civil Rights Act. The belief in question would have to be firmly held, but need not be theistic. Since the matter has not been decided by SCOTUS, we cannot know how they would rule if the matter came before them. There is, at least, a clear precedential path where white supremacism could be held to be a religion. In addition, if the incident took place in Seattle, the firing would be illegal because city ordinances prohibit discrimination based on political ideology. | how does hiring only women comply with our Civil Rights Act (which outlaws discrimination based on sex)? It is compliant. The Civil Rights Act includes an exception where the discrimination or limitation based on sex (or any other protected category) "is a bona fide occupational qualification for employment". That exception is located at the end of 42 USC 2000e-3(b). Although literally referring to employer's publishing of that preference, the very existence of that statutory exception implies a permission to discriminate [for certain occupations] on the basis of sex. At the outset, it would be unreasonable to allow the employer to explicitly state his criteria for hiring and yet be prohibited to implement them. But a more important reason for that exception is the premise of bona fide occupational qualification. That premise indicates that the legitimate purpose of the employment at issue takes priority over the general intent of the Civil Rights Act. The actual & occupational purpose of cheerleading in the NFL context is not to shake pom poms and do choreography on field grass, but to amuse men, who comprise the vast majority of the customer base in the football business. Accordingly, the issue is not whether males are fit or unable to cheerlead, but that male cheerleaders simply would not amuse the average football fan. The occupational purpose would be frustrated if females were replaced with males. The legislative intent of the Civil Rights Act is to preclude discrimination for employment where the protected category (be it sex, religion, etc.) is irrelevant to the actual fulfillment of the occupational purpose. | The details depend on the state, of course. The common law thing you are looking for is a writ of mandamus -- a court order to a public official to do something (or not do something) that they are required to do under the law. Writs of mandamus were traditionally only applicable to ministerial tasks (i.e. things that are basically paper-shuffling where there is little to no discretion); marriage licenses are typically considered ministerial. With discretionary actions, things are much more complicated because the government official is supposed to have significant ability to decide what should and shouldn't be allowed; mandamus doesn't apply unless there's a right to the action requested. In some cases, mandamus has been replaced with other forms of judicial review, but in Alabama it is definitely still mandamus that's involved (source: mandamus is what's previously been used to stop issuance of licenses). For federal review, which is more likely to get somewhere, the approach to use is the exact same thing that led to DeBoer (the case bundled into Obergefell that was about granting licenses), and Perry, and many of the other gay marriage cases: a lawsuit seeking an injunction or declaratory relief under 42 USC 1983, which allows actions in law and equity whenever anyone denies civil rights to a US citizen (or someone in the jurisdiction of the US) under color of law. The ultimate result of this kind of suit is a federal court order to issue a marriage license, or a declaration that it's illegal to not issue the license (and so anyone who doesn't will be subject to a court order). Violating this order, like any court order, is contempt of court. | Federal law isn't yet settled on whether employers can discriminate based on sexual orientation (see the other answer), so instead let's take a look at Michigan state and local laws: Based on my reading of this Wikipedia page, it appears that the 1967 "Elliott-Larsen Civil Rights Act" (pdf) has, as of 2018, been interpreted by the Michigan Civil Rights Commission to prohibit discrimination on the basis of sexual orientation or gender identity. So, yes, if the company qualifies (looks like there are some exceptions for certain "private clubs" and religious organizations), it appears to be a violation of Michigan law to discriminate on the basis of sexual orientation for hiring and/or employment decisions. I'd also encourage you to take a look at this list of Michigan cities/municipalities that have passed additional protections for gender orientation. If your business is any any of those areas, you might be subject to more restrictive laws. Regarding an employee who refuses to work with a gay coworker, I'd strongly recommend consulting with a local attorney; my suspicion is that taking action against the gay coworker would be illegal, firing or disciplining the complaining employee would not. (I'm not an attorney, this is not legal advice, I'm just a dude who knows how to read Wikipedia, don't taunt Happy Fun Ball, etc...) | Such discrimination will in SOME cases probably be unlawful An employer refusing to hire a person because of obesity might be in violation of the California CFEHA, or the Federal ADA, or both. The California Fair Employment and Housing Act (CFEHA) will in some cases prohibit such discrimination. Specifically, CA Code section 12940 says: It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment. (Emphasis added) CA Code section 12926 defines "physical disability": (m) “Physical disability” includes, but is not limited to, all of the following: (1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: (A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. (B) Limits a major life activity. For purposes of this section: (i) “Limits” shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity. (ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult. (iii) “Major life activities” shall be broadly construed and includes physical, mental, and social activities and working. (2) Any other health impairment not described in paragraph (1) that requires special education or related services. (3) Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part. (4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult. (5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2). (6) “Physical disability” does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs. Serious cases of obesity would probably be included in 12926 (m) (1). Less serious cases might be included in 12926 (m) (4) or 12926 (m) (5). In addition, the US Federal Americans with Disabilities act (ADA) (42 U.S.C. § 12101) provides in section 12112 that: (a) General rule No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. (b) Construction As used in subsection (a) of this section, the term "discriminate against a qualified individual on the basis of disability" includes (1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee; (2) participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity's qualified applicant or employee with a disability to the discrimination prohibited by this subchapter (such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs); (3) utilizing standards, criteria, or methods of administration (A) that have the effect of discrimination on the basis of disability; (B) that perpetuates the discrimination of others who are subject to common administrative control; The ADA defines disability in section 12102: Sec. 12102. Definition of disability As used in this chapter: (1) Disability The term "disability" means, with respect to an individual (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3)). (2) Major Life Activities (A) In general For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. (B) Major bodily functions For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Whether a particular obese individual will be regarded as having a disability under either the CFEHA or the ADA is a matter of individual determination. Not all obese people will be considered to have a disability as defined by either act (and note that the definitions are quite similar). If a person is so regarded, then to refuse to hire that person because of that disability is unlawful. Note that if a person is unable to perform the essential duties of a job, even with a reasonable accommodation, an employer is free not to hire such a person. There are other limitations and exceptions in each act. To determine if a particular person is protected in regard to a particular job would require an employment lawyer or other employment professional with access to the specific facts of the case. | I don't know of any federal law that is violated. US labor law is generally favorable to employers, compared to many other countries, and gives employers a lot of freedom in setting policies and rules, The theory is that an employee who doesn't like it can go and work somewhere else, and an employer with unreasonable policies will eventually be unable to get people to work for them. In particular, it surprises some people that employers aren't legally obligated to reimburse travel expenses at all: The FSLA does not have any rules regarding an employer's obligation to reimburse an employee for business-related travel expenses. No federal law requires reimbursement. So it would be perfectly legal for the company to require employees to pay for all their own meals when traveling on business. Given this, I'd expect that the company would have pretty broad discretion to place conditions and restrictions on reimbursement, including what they will and won't pay for. If an employee had a disability or religious beliefs that required them to eat meat, and the company wouldn't grant them an exception, they might have a claim under the ADA or Title VII of the 1964 Civil Rights Act respectively. But if it's just that they happen to prefer meat, I don't think there's a law to guarantee them such a right. Some states could have their own laws that might be violated, though I tend to doubt it. If you have a particular state in mind, please specify. | The Dept. of Labor makes it easy for you: as they say, it is illegal discrimination. The U.S. Department of Labor (DOL), Civil Rights Center (CRC), is charged with enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e-16, which prohibits employment discrimination based on race, color, religion, sex, and national origin, as it applies to employees and applicants for employment at DOL. National origin discrimination can involve treating applicants for employment or employees of DOL unfavorably because of their actual or perceived place of birth, country of origin, ancestry, native language, accent, or because they are perceived as looking or sounding "foreign."... National origin discrimination can also include disparate treatment because of a person's accent |
Is Pushshift.io compliant to GDPR if they refuse to delete collected content? Pushshift.io collects posts and comments using Reddit API, and saves that data into their database. This service is used by websites that allow you to see deleted contents in Reddit. For example, if you are viewing a Reddit post and want to see the deleted contents, you can tweak the "reddit.com" domain a little, to enter a website that will show you all the deleted contents, using the Pushshift.io website. However, several Reddit users from the EU are concerned about this, because Pushshift.io is not respecting the "right to be forgotten" from GDPR, when they're asked to remove contents that belong to the user. (besides that this data is being collected and stored without anyone's consent) In a Reddit post, they say: What happens when a removal request is made? A) Right now, we internally blacklist the account so that the data is not exposed via any public API. For full disclosure, we currently do not permanently delete any data unless there is a major issue involving PII, etc. While you have the right to request that people cannot search your comments and submissions via the public API, we reserve the right to keep data in our private archive so long as we never allow any data that you requested be removed get exposed through any public API endpoints. So they are still keeping our data against our wishes, and all it takes is their servers getting breached, for all this data to be exposed. Not only that, all the data apparently can be downloaded from this page, which contains compressed databases of their API. But while they remove (hide) the data from the API, that data is still available for anyone to publicly download. In this Reddit post, they replied with: safrax MOD · 10 hr. ago Pushshift is not subject to the GDPR. No useful discussion will come from this so I'm locking the thread. There's also an old comment here, saying: GDPR only applies to websites you give your data to, not third parties that scrape it. There's no violation here. Not to mention that pushshift is US based and GDPR doesn't even apply. Is it really correct that Pushshift is not subject to the GDPR? -- The Reddit user u/Stuck_In_the_Matrix is the creator of this API, and he said in a post: I am an American but I don't see that as an excuse to violate or circumvent EU law. My intention is to observe the laws governing the GDPR and make a good faith effort to follow the law to respect and protect the privacy of residents of the EU. But he clearly isn't respecting EU residents' privacy, with this. | Maybe, but probably not The geographic location of the organisation is immaterial: under Article 3.2: This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to: ... (b) the monitoring of their behaviour as far as their behaviour takes place within the Union. Posts anyone (not just EU citizens) make to Reddit (or anywhere else) while they are physically located in the EU or UK engage the GDPR. Pushift.io is therefore captured by the GDPR and any denial of that is just plain wrong. Given the denial, it is likely right out of the gate that they are non-complient. For example, they are unlikely to provided the required information under Article 14. More importantly, it seems that they have not determined the lawful basis for processing the data under Article 6 - they can possibly rely on the public interest basis (preserving deleted publication is arguably a public interest) or a legitimate interest but that requires a balancing of their interest against the data subject's. That said, the right to be forgotten is not absolute, the reasons that might be applicable here are: The data is being used to exercise the right of freedom of expression and information. The data is being used to perform a task that is being carried out in the public interest or when exercising an organization’s official authority. The data represents important information that serves the public interest, scientific research, historical research, or statistical purposes and where erasure of the data would likely to impair or halt progress towards the achievement that was the goal of the processing. | The status of any PII (Personally Identifiable Information) is the same in GDPR regardless of location, or who enters it. Its goals are (among others) to stop any actor (company / government or other) from hiding responsibility about their use and practices around people's data. GDPR does even apply to anything offline and on paper. Basically it means you have to validate any entry field is free of PII before processing it. Or make it clear in your privacy statement how you handle this use-case. | Your VPN scenario is why you have to show the banner to everyone. If you somehow knew beyond any doubt that someone was not in the EU, then you would not have to show a banner, but because you can't verify that, you should always show the banner. Doing so also protects against accidentally violating a similar law in another country; the GDPR is the best-known privacy law, but it is far from the only one. It's good practice to ask for people's permission before collecting their information anyway. | Great question - I work for a London based company who use a large amount of location data. The process for deletion of data is not as simple as it first sounds. We recently had a deep dive with our legal team and as a result actually created a product to process deletions. Personal data from users/customer is carried for lots of reasons, not just marketing. What if you're asked to delete data that is needed to bill customers, information that may be relevant to a legal case or information that needs by law to be retained for the purposes of audit? GDPR does not make it illegal to carry personal information, it simply needs you to justify why you are keeping the information - inform the named person about this and provide them with a timescale for deletion. For example if you are required by law to store a record of emails to document the work done, but the user asks you to delete that information. You would be entitled to keep that information but only for the purposes of maintaining that audit trail. You would delete all associated customer data that was unnecessary such as CRM info, payment details etc.. but could keep the audit trail. The proper way to respond to the user's deletion request would be "your data will be kept in a secure server for the purposes of maintaining an audit trail for x amount of time. Once this time has elapsed it will be deleted. If you are unhappy with our use of this data please contact our data officer". GDPR isn't designed to catch you out - if you have a legitimate reason to keep that information then you are entitled to. The law was designed to stop marketers and advertisers hoarding huge amounts of information, as well as undermine Google/Facebook's duopoly on our personal information. | Probably not. There are potential problems on the levels of copyright, data protection, and the Youtube terms of service. You should assume that comments are typically covered by copyright. You do not have a license to these comments, only YouTube does. Therefore, YouTube can show the comments but you can't copy them – just like YouTube can stream your videos but others can't download them and host them on their own websites. To cover the copyright angle, you'd either need to obtain a license from the commenters, or get a sub-license from YouTube, or identify a suitable copyright exception. The comments are personal data within the meaning of the GDPR, so that your processing of these comments (including mere storage) would be subject to GDPR as well. You need a legal basis for processing personal data. Which legal basis is suitable would depend on the purpose of processing, and on your relationship with the commenters. Potentially applicable legal bases in this context: you have a contract with the commenters that requires you to show the comments on your website. For example, I could see such a contract if there were a “featured comment” perk for a Patreon subscription. But this is not going to fly with random commenters. you have a legitimate interest (LI) that allows the processing. A LI requires that you conduct a balancing test where you weigh this interest against the commenter's rights. This is very specific to the purposes for which you want to show the comments. However, a LI will generally only apply if you have an existing relationship with the commenters, making it possible for them to expect that this processing will occur – unlikely if you'll be scraping comments from YouTube. you have obtained consent from the data subject. Consent must be specific, informed, freely given, and unambiguous – you can't obtain consent by writing “by commenting under this video you consent to XXX” in the video description. Regardless of legal basis, you would have to inform the commenters under Art 14 GDPR when you scrape their comments from the platform. Finally, consider the platform terms of service. I have not read the YouTube ToS recently, so I don't know what their specific conditions are. But in general, such ToS will not allow you to scrape content from their platform in order to host it somewhere else. The ToS might allow certain actions like embedding a link/iframe to such videos on other sites, without allowing other actions such as copying other user's content to your site. | The GDPR applies regardless of where and how data is processed. But it is necessary to look at what the processing activities in question are, and who is the controller for these activities by determining their purposes and means. This argument is supported: by the absence of relevant exemptions in the GDPR by the GDPR's broad definition of the data controller by the ECJ's analysis in the Fashion ID case GDPR Exemptions For certain constellations (e.g. controller = natural person, purposes = purely personal or household activities) that processing is exempt from GDPR compliance (see GDPR Art 2(2)). However per GDPR Recital 18, the GDPR would still apply “to controllers or processors which provide the means for processing data for such personal or household activities.” For example, this means that I am able to use WhatsApp to process my friends' contact information for purely personal purposes because I'm exempt from the GDPR with respect to that processing, but Facebook is still subject to the GDPR regarding how they process personal data collected via WhatsApp. Already on the basis of the GDPR providing no exception for processing on someone else's computer, I disagree strongly with the answer you cited (and have already written a competing answer). It seems entirely counterfactual. How to figure out who the controller is. Per GDPR Art 4(7), controller is whoever “alone or jointly with others, determines the purposes and means of the processing of personal data”, although other laws might provide more specific criteria for individual purposes or means. We will return to that definition in the next section. The ICO has provided a checklist to figure out if you're a data controller or perhaps a joint controller. Some of the questions are aligned with the above definition, like “We decided what the purpose or outcome of the processing was to be”. Other questions are there as a contrast to the data processor role, e.g. “We have complete autonomy as to how the personal data is processed”. Analysis of the Fashion ID case (ECJ C-40/17) This judgement provides a detailed analysis of who the data controller is, and is therefore relevant to the question. Fashion ID had embedded a Facebook “Like” button on their website, thus causing the visitor's browser to transmit personal data to Facebook. Fashion ID asserted that they were not the data controller, since they had no control over what data was collected by the Like button and how it was subsequently used by Facebook. Fashion ID relied in part of the argument that they weren't the controller because processing happened on the visitor's computer. This ruling was made on the basis of the Data Protection Directive 95/46 which was repealed by the GDPR. However, since the DPD and GDPR have effectively identical definitions of “controller” and “processing”, the court's analysis remains highly relevant. In the following I'll “translate” all DPD references to the GDPR, in analogy to GDPR Art 94(2). The court found that Fashion ID was a data controller for the processing by the Like button, and that it was a joint controller with Facebook for this processing. However, Fashion ID was only a controller for those processing activities in which they played a part, not for subsequent processing of the data that was controlled by Facebook alone. Relevant details from the Judgment (ECLI:EU:C:2019:629): Paragraphs 65–66: The GDPR tries to achieve a high level of data protection through a broad definition of “controller”. Thus, an overly narrow interpretation that counteracts this goal is incompatible with the law. Paragraph 68: An entity is a controller when it exerts influence over the processing for its own purposes, thereby participating in determining the purposes and means of processing. Compare the GDPR Art 4(7) definition of “controller”. case law: C-25/17 Jehovan todistajat, ECLI:EU:C:2018:551, paragraph 68: “However, a natural or legal person who exerts influence over the processing of personal data, for his own purposes, and who participates, as a result, in the determination of the purposes and means of that processing, may be regarded as a controller”. Paragraphs 67, 69–70, 82: It is not necessary to have a single controller, there can be multiple joint controllers. The joint controllers can be involved to different degrees. You can be a joint controller without having access to the personal data. case law: C-25/17 Jehovan todistajat, ECLI:EU:C:2018:551, paragraph 69: “Furthermore, the joint responsibility of several actors for the same processing, under that provision, does not require each of them to have access to the personal data concerned”. case law: C-210/16 Wirtschaftsakademie Schleswig-Holstein, ECLI:EU:C:2018:388, paragraph: 38: “In any event, [GDPR] does not, where several operators are jointly responsible for the same processing, require each of them to have access to the personal data concerned.” Paragraphs 71–74: Processing can consist of many different individual activities. A controller might only be involved in some of them, and can only be a controller for those activities for which they (jointly) determine purposes and means of processing. Paragraphs 76–79: Fashion ID was able to determine the purposes and means of processing regarding data collection and transmission by the Like button. The act of embedding the button showed that they had decisive influence over the processing: without the embedding, the data processing would not have occurred. To summarize the relevant conclusions: someone is a data controller when they participate in determining the purposes and means of processing for some processing activity for joint controllers, this holds regardless of whether they have access to the data or participate in the processing itself one cannot be a controller for a processing activity for which they cannot determine purposes and means. Conclusion and application to the question This analysis reaffirms my competing answer to the cited answer that it is important to determine who the data controller is. The Fashion ID case shows that is important to perform this analysis on a fairly granular manner, on the level of individual processing activities. For processing on a data subject's computer by a program written by another provider, this means: some processing activities might be solely under the user's control, then they are the sole data controller (or might be exempt from GDPR) for some processing activities, the software developer might decide alone for which purposes and through which means the processing is carried out for other activities, the user and data controller might be joint controllers. This does not require explicit agreement but can result implicitly. This does not require that the software developer has access to the personal data undergoing processing. For example, a spreadsheet application might be used by an end user to process personal data on their own computer (or via a cloud application, with the same conclusions). We can consider different processing activities performed by the software: sorting, transforming, and other processing of the data in the spreadsheet is solely under the end users control, so they are the data controller (if they aren't exempt) collecting usage analytics (where those analytics signals are personal data for which the end user is the data subject) is solely under the software developers control uploading crash reports (where those reports contain personal data from the end user and contain contents from the currently opened spreadsheet) is more complicated. The software developer is definitely a controller. The end user has a dual role here as a data subject and a joint controller (if they aren't exempt) because the crash report processes personal data for which they are the controller. | The 'right to be forgotten', as currently being applied throughout the European Union (EU), does not come from the General Data Protection Regulation (GDPR), which will come into force 25 May 2018. Rather, the current basis exists in the Data Protection Directive, 95/46/EC, article 12(b): Right of access Member States shall guarantee every data subject the right to obtain from the controller: [...] (b) as appropriate the rectification, erasure or blocking of data the processing of which does not comply with the provisions of this Directive, in particular because of the incomplete or inaccurate nature of the data; This was one of the main points upon which the Court of Justice of the European Union (CJEU) decided Google Spain v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, the judgement which allowed for individuals to ask for search engines to remove results containing personal data. The CJEU explained that the 'right to be forgotten' was not absolute and should take into account economic considerations as well as other rights (paragraphs 85 - 88). The GDPR, article 17, for purposes of contrast, has a more robust and explicit right of erasure than currently in force: Article 17 Right to erasure (‘right to be forgotten’) The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies: [...] Shortened for clarity GDPR, article 17 fleshes out much of the lack of specifics that the Directive's article 12(b). It should be noted that the UK's Data Protection Act 1998 is a transposition of the Data Protection Directive. This means that the full effect of the rights and obligations in the Directive are contained within the Data Protection Act 1998. Furthermore, the interpretation of the rights and obligations of the Data Protection Directive by the CJEU are highly influential on interpretation of the Data Protection Act 1998. This is due to the European Communities Act 1972, s 3(2) which states: Judicial notice shall be taken of the Treaties, of the Official Journal of the Communities and of any decision of, or expression of opinion by, the European Court on any such question as aforesaid; and the Official Journal shall be admissible as evidence of any instrument or other act thereby communicated of any of the Communities or of any Community institution Even without the above provision, it would be extremely likely that British courts would take into account Google Spain, given that the foundation of the Data Protection Act 1998 is the Data Protection Directive. The most likely outcome is for British courts to uphold the interpretation in Google Spain and allow for data subjects to request removal from search engines. Of course, it is not entirely possible to know without a test case, but it is doubtful any major search engine would attempt to deviate from the current situation as there is currently legal certainty. The Data Protection Act 1998 will still be in force after the future Brexit agreement and is certainly not contingent on continued EU membership. Update The current DPA will be repealed when Brexit comes in to play and will be replaced by a new one. Read more about the new data protection bill on the ICOs web site, which is based on the GDPR with certain derogations and additions. | Keeping logs of chats would not necessarily be against the GDPR as you have suggested. For the IRC service provider/operator: these chats/logs would be within scope if EU-based users are involved and this means the data controller/processors would have legal obligations to comply with GDPR. The IRC service provider/operator would be the data controller and would be held ultimately responsible for the data stored/processed through the IRC service, including backups and logs kept etc, and this would mean any sub-processors they select (such as hosting provider) would also have to be GDPR compliant. Due to the nature of IRC chats being entirely public in the same way forum board posts and comments are public, the contract terms between the IRC service provider and the IRC users would need to be very clear that this is the case, and the IRC users would need to give consent for this processing (this is more complicated for children, see Article 8 regarding consent from the holder of parental responsibility). For IRC users (personal use): If you wish to keep the chat records for personal use only (i.e. not in connection with a business or your employment at a business), then an exemption applies: This Regulation does not apply to the processing of personal data: ... (c) by a natural person in the course of a purely personal or household activity; ... (GDPR, Article 2: Material Scope, Paragraph 2(c), p.32) For IRC users (commercial/business use): In this case I don't think you would have any legal basis to store/process these chats/logs if they contain personal data without a legal agreement with the data controller which would require you to put in place the same protections they have to under GDPR but then allow your business to access the data for specific purposes. While the information may be published or considered to be in the 'public domain', for you to take a copy of it without permission and use it for a purpose they haven't consented to would not be allowed under GDPR. Additionally, to go through the process of removing personal data from the chats/logs would in itself be considered 'processing' under GDPR and therefore would be unauthorised without a legal agreement with the data controller. Practically therefore, your best options under this circumstance would be if: The IRC service provider implemented a 'favourites' feature to save within their own system the chat conversations you wish to retain and refer back to in future. Since they hold the data and you already have a user agreement with them there is no further complications (this is probably the best option); The IRC service provider implemented a feature to download an anonymized copy of a chat conversation (not ideal as there are no guaruntees a user will not include personal data in their messages, though the user agreement could state that message content will be considered to exclude personal data, in a similar way to how StackExchange do for this website, see the paragraph titled "Information You Choose to Display Publicly on the Network" on the StackExchange Privacy Policy). Your business considered an alternative communications solution, such as hosting its own real-time chat system or forum boards system, in which case your business would be the data controller, and while subject to GDPR you could then define the purposes for which the data will be used in your own user agreement. |
Does "duty to rescue" apply to a child that one has no direct responsibility for? This appeared in a comment on another SE site: If I am sitting by a deep swimming pool and see an unsupervised toddler child playing close to the edge - and then watch the child fall in and drown, and do absolutely nothing to prevent it - I am, certainly under English law, guilty of a crime. Is that in fact true? My understanding is that it would be true under the civil code, (e.g. Europe, Québec, Louisiana), but not under common law. | Does "duty to rescue" apply to a child that one has no direct responsibility for? And I am, certainly under English law, guilty of a crime. No, not necessarily, because a failure to act does not automatically create criminal liability in England and Wales. Most offences require a combination of a physical act and the intent to carry it out - often referred to as the coincidence of actus reus and mens rea. If one or both of these elements are missing (or cannot be proved) then there is no offence unless there is a specific Duty of Care imposed by law which obligates a person to prevent, or mitigate the risk of, harm coming to someone or something. There is a simple mnemonic that may assist with identifying whether or not there is such a DUTY Dangerous situation created... In R v Miller [1983] 2 AC 161 Miller fell asleep while smoking a cigarette, then woke up to see his matress smouldering. Instead of calling for help or doing anything about it, he went to sleep in another room so was convicted of arson - not for setting the fire but for failing to do anything about it. This would be analogous with someone tampering with the signs to incorrectly say that the deep end of the pool is the shallow end thus causing the child to be out of his depth and drown. Under statute, contract or by public office... In R v Dytham [1979] QB 722 a police officer was convicted of misconduct in a public office because he stood by and did nothing as a man was beaten to death. For the OP: a lifeguard will have a duty of care, under contract, to act in order to rescue the child in the OP. Take it upon oneself... In R v Stone & Dobinson [1977] 1 QB 354 the defendants took on the responsibility for caring for a vulnerable person who later died due to their neglect. In the OP's scenario, this might equate to someone announcing they will act as an impromptu lifeguard but then do nothing to save the child from drowning. Young persons... Anyone who has a parental relationship with a child has a legal obligation to look after the health and welfare of that child. In the OP's scenario, if the parent was absent, too drunk etc so could not raise the alarm this may be a breach of this duty of care and make them liable for the death of their child. | I take that to mean that section 14 alone should not be construed to give a department the power to sue under sub section (1), nor the ability to be sued under sub section (2). Rather, if some other law, or some other section of that law confers such a power or ability, section 14 indicates how the power should be used, that is, gives the proper procedure. But if no such other law is in effect, section 14 alone won't do. If the law has simply said: civil proceedings under this Act by the Crown may be instituted by (a) the appropriate government department in its own That might have been construed to grant such powers to every "appropriate " department, which apparently was not desired. | Yes More exactly, nations will not regard places outside of their physical limits as outside of their jurisdictions. Overview Traditionally, a nation has regarded any ship flying its flag as under its jurisdiction, and a place where it may enforce its laws. More recently, many nations will undertake to enforce laws in cases where their citizens are the victims, or in some cases the perpetrators of crimes even within other nations, and more freely on the high seas outside the physical limits or territorial waters of any country. Historically, all nations undertook to enforce laws against piracy wherever they might be committed. Several countries, including the UK and the US, now treat the UN Law of the Sea convention as part of their national law, which defines as piracy: "illegal acts of violence or detention ... against persons or property on board such ship or aircraft" This would include the situation described in the question. Therefore such actions could and quite likely would be prosecuted by any of several countries, depending on the registry of the vessel and the nationalities of those involved. Sources 18 U.S. Code § 7 provides that: The term “special maritime and territorial jurisdiction of the United States”, as used in this title, includes: (1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State. ... (7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States. (8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States. This US DOJ page says: Among the offenses within the special maritime and territorial jurisdiction of the United States are the crimes of murder, manslaughter, maiming, kidnapping, rape, assault, and robbery. Pursuant to 18 U.S.C. § 7(1) there is also jurisdiction over such offenses when they are committed on the high seas or any other waters within the admiralty and maritime jurisdiction of the United States that is out of the jurisdiction of any particular state. See JM 9-20.000 et seq. The page "Maritime Offenses" from the law offices of Trombley and Hanes says: The Federal government also exercises jurisdiction over certain maritime offenses. There is Federal jurisdiction for offenses committed on American vessels in the territorial waters, harbors and inland waterways of foreign nations. See United States v. Flores, 289 U.S. 137 (1933). ... A number of Title 18 sections specifically declare certain conduct to be a Federal crime if committed “within the special maritime and territorial jurisdiction of the United States.” See, e.g., murder, 18 U.S.C. § 1111. In some instances, the Assimilative Crimes Act, 18 U.S.C. § 13, is also applicable. See also, 15 U.S.C. § 1175; 15 U.S.C. § 1243; 16 U.S.C. § 3372. 18 U.S. Code § 1111 (b) provides that: (b) Within the special maritime and territorial jurisdiction of the United States, Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life; Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life. The Britannica Article on "Piracy" says: Because piracy has been regarded as an offense against the law of nations, the public vessels of any state have been permitted to seize a pirate ship, to bring it into port, to try the crew (regardless of their nationality or domicile), and, if they are found guilty, to punish them and to confiscate the ship. The UN page on Piracy says: The 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides the framework for the repression of piracy under international law, in particular in its articles 100 to 107 and 110. The Security Council has repeatedly reaffirmed “that international law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982 (‘The Convention’), sets out the legal framework applicable to combating piracy and armed robbery at sea, as well as other ocean activities” (Security Council resolution 1897 (2009), adopted on 30 November 2009). Article 100 of UNCLOS provides that “[a]ll States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.” The General Assembly has also repeatedly encouraged States to cooperate to address piracy and armed robbery at sea in its resolutions on oceans and the law of the sea. For example, in its resolution 64/71 of 4 December 2009, the General Assembly recognized “the crucial role of international cooperation at the global, regional, subregional and bilateral levels in combating, in accordance with international law, threats to maritime security, including piracy”. The UK Piracy Act of 1837 defined as a crime: Whosoever, with intent to commit or at the time of or immediately before or immediately after committing the crime of piracy in respect of any ship or vessel, shall assault, with intent to murder, any person being on board of or belonging to such ship or vessel, or shall stab, cut, or wound any such person, or unlawfully do any act by which the life of such person may be endangered, shall be guilty of felony... The more modern UK law, the Merchant Shipping and Maritime Security Act of 1997 embodies the UN law of the Sea convention, including its article 101, which says: Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed— (a) (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (a) (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; | In the United States: Government law enforcement agencies have no specific duty to provide security to an individual. This was established in Warren v. DC: The duty to provide public services is owed to the public at large, and, absent a special relationship between the police and an individual, no specific legal duty exists. Private security personnel don't have any special duties above those enumerated in their contract. The closest legal requirement to provide aid to another may be under the common law "duty to rescue" concept, but statutory law on that does not seem substantial in the United States. | Charlie may or may not be guilty of murder or of attempted murder. It depends upon his intent and knowledge, which the question doesn't flesh out sufficiently to evaluate. Why did Charlie bodyslam Bob? The reason matters a lot. Did Charlie know that the building was on fire? Was Charlie trying to kill Bob? Was the thing that Bob knocked his head upon an intended result of the bodyslam, or an intervening cause? Did Charlie's initially less culpable act and his knowledge combine to create a duty to rescue and what offense (probably not murder) would it be if a death resulted from a failure to rescue? Alice is likely to be guilty of murder, but on a felony-murder theory, rather than on a transferred intent theory. In most, but not all, states if you are in the process of committing one of an enumerated list of specific felonies that pose a high risk of serious injury or death, such as arson, you are guilty of murder in the event that anyone (even a co-conspirator) dies as a result of your felonious course of conduct, whether or not you intended that a death result. Alice might have been able to purge her felony-murder liability if she had tried to put out the fire and save Bob once she realized that he was in danger, under the exception to felony-murder for renunciation of a course of felonious conduct, but she didn't even try. The doctrine of transferred intent in a murder case usually applies when you intent to kill one person and instead end up killing someone else. But, Alice didn't intend to kill anyway, so this doctrine does not apply. Alice's best defense would be that the death was a result of the attack by Charlie, rather than by the fire, which she would merely have to establish a reasonable doubt regarding. But, ultimately that would be a weak defense for her. | Is it true that men are forced to pay child support for children they didn't consent to having? Yes. This is true in every U.S. jurisdiction, in the U.K., and in every jurisdiction of which I am aware in the E.U., and it is the rule in many other jurisdictions. The duty to pay child support in these jurisdictions flows from the relationship between the father and the child, and is not a contractual concept based upon consent. The primary exceptions to this general rule are cases where a parental relationship is legally terminated (e.g., in connection with the adoption of a child born out of wedlock), and cases in which someone becomes a sperm donor in a statutorily authorized arrangement that generally does not involve sexual intercourse. Historically, roughly speaking in the early 19th century, and earlier in English common law, and most other European and European-colonist jurisdictions, a man only had a duty to support the children of his wife or the children of his deceased former wife if he was a widower. Even further back, in the Roman empire from which the foundations of Roman civil law were derived, a father had a right in his sole and absolute discretion to commit infanticide, killing his infant children, a right which was a major political issue in the Roman empire from sometime in the 100s CE until it collapsed. Some jurisdictions, such as Japan, only established a legal duty to pay child support to a custodial parent in any circumstances in the late 20th century, although those jurisdictions still recognized the legal duty of a father to support a child in his custody. It is also worth noting that women in every country of which I am aware have a duty to support the children to which they give birth, whether or not they consented to impregnation (e.g. even if they were raped), or to giving birth (e.g. even if they wanted an abortion but were denied access to abortion by law or otherwise). This support obligation persists in almost every case, even if the woman's child is in the custody of another parent or guardian, and a woman is much more likely to face criminal prosecution for failure to support her child than an uninvolved father (although criminal prosecutions of men for non-support do happen). So, the claim that this constitutes sex discrimination is ill-founded. | No. The custodial person that is meant by this are usually the parents or another court-appointed person that stands in for their parents. I think the common law term closest is "legal guardian". The details are defined in § 1616 ff. of the German civil code. | The party providing the computer, ISp connecting the computer to the internet, or manufacturer of the computer would not be liable. A person wishing to sue for damages would have to establish that the defendant was negligent in their action. The underlying premise is that all parties have some obligation to all other parties to care, to some extent. The inquiry ask haw a reasonable prudent person would behave in this context when pursuing their goals to avoid harming others. A reasonably prudent person would not provide a rack of sharp carving knives on the floor of a daycare center. A reasonably prudent person would provide a rack of sharp carving knives on a work-table at a fish-cleaning business. In both cases, it is possible that a person might cut themselves. In the daycare center, the toddlers on the floor are not assumed to share any of the burden of care, in the fish-store, the employees are assumed to share some of the burden of care. The ISP knows that it is possible that a person will harm themselves when they surf the web, but that does not make them liable for damages when an irresponsible party deliberately and knowingly connects to a nest of viruses, likewise the computer maker. The alternative is that providing an internet connection always makes you liable, or building a computer: that would be the end of SE. Two parties can significantly and reasonably mitigate the risk: the bank, and the customer. The customer can either decline to use this unsafe computer, or they can take precautions, in particular remembering to log out. The bank can also do certain things without harming their interest: providing ample warnings (which they do), or automatically logging a customer out after a period of inactivity (a metric of the fact that the customer just up and left). Banks do that too. The only control that could be reasonably be expected from the company, short of simply not providing a computer in the break room, would be filtering to prevent any access to certain kinds of web sites, such as porn sites, banks, or SE. Filtering for the first type of site is overall consistent with reasonable company objectives (which is to accommodate reasonable employee interests in accessing or transmitting information during the work day). Given the reasonable goals of the company, the jury would not likely find that the company had breached their duty to the employee. The jury balances these interests of the parties, and would determine that the company could not be expected to filter out connection requests to banks, and that they can reasonably rely on prudent actions by the employee and bank to prevent whatever happened. |
If one purchases a machine and software that has no EULA, etc, can said person legally alter the code of the program purchased? So say myself or a company sells a printer, and as part of that printer package you have an add-on to purchase software with it. The customer purchases the machine and software and accepts terms you have laid out on the site, but that doesn't outline use, rights, or licensing of the software purchased as an add-on with the machine. There is no EULA to accept when running or using the software, and no terms outlined on the website, within the software, or anywhere for the purchaser or end user. So no agreement, no EULA, no restrictions or anything outline for use of the program purchased. Do they own the software? Can they legally alter the code of the program they purchased? Can they legally redistribute it or transfer ownership? Can they legally modify the code of the program for others who have also purchased the same package? Can they take that software and install it on a secondary machine? | Recall the basic principle of copyright law, as detailed in 17 USC 106: The copyright holder has the exclusive right to make copies; prepare derivative works; or distribute copies by sale, rental, lease, or lending. Other people can legally do these things only if they are given permission by the copyright holder, typically via a license. (Remember, the literal meaning of the word license is permission.) Often, the copyright holder will require a prospective licensee to accept various terms and conditions before the license will be granted. If there is "no EULA", or if there is one but the purchaser has not agreed to its terms, then the purchaser has not been granted any such license, hence does not have permission to do any of the things listed above. If they do so anyway, it is illegal copyright infringement and they will be liable for damages. To use a firewall analogy, copyright law is "default deny". So let's take your questions one by one: Do they own the software? US law has no concept of literally owning software. The closest thing is owning the copyright, which the purchaser certainly does not. It still belongs to the vendor that wrote the software (or whoever they may have later transferred it to). Can they legally alter the code of the program they purchased? No, that would be preparing a derivative work. The copyright holder has not granted them a license to do that. (There are some exceptions for purposes such as reverse engineering and interoperability, see 17 USC 1201(f)). Can they legally redistribute it No; again, that is the exclusive right of the copyright holder, and the purchaser has not received their permission. or transfer ownership? Maybe, if the first sale doctrine applies. Its application to software is complicated. The user has a better case for being able to sell the software if it exists as some tangible object which is transferred (physical media, pre-installed on hardware, etc). Can they legally modify the code of the program for others who have also purchased the same package? No, that would be preparing a derivative work. Can they take that software and install it on a secondary machine? No, that would be making a copy. | The exact laws will vary by region and country, but the laws will range anywhere between illegal and almost illegal. If you want to operate as legal as possible then you will have to disclose to the buyer that the software is malware or a crypter and you should require for the buyer to sign an agreement to only use the software for legal and educational purposes. Hiding the disclosure in a long Terms of Service agreement will likely not be sufficient. You will have to explicitly advertise that the software is malware and a crypter and that you are looking for reputable tech firms to buy your software in order to improve their software. If you sell software without disclosing to the customer that the software contains malware or a crypter then you are exposing yourself to a lawsuit for products liability, invasion of privacy, fraud and misrepresentation, the cost of damages, and possibly criminal liability. | Using it without permission is copyright infringement and illegal. Legally, you can try offering money to the company for the copyright or for a suitable license. For example offer them $1000 for a copy of the code licensed under the GPL license. If they accept, you are fine. | The CEO wants to "fool" users You are essentially admitting that the company you are working for is about to deceit its customers and asking whether that is legal. The relevant set of laws is rather sparse and does not give direct answers in regards to oAuth tokens or other details of that level (which is probably making your CEO think he can "handle" the arising questions). Probably the most relevant bit of legislation that applies here is The Federal Trade Commission Act (15 U.S.C. §§41-58) which prohibits unfair or deceptive practices and has been applied to online privacy and data security policies. I am pretty sure that, in practice, if the users take your company to court, it will be held liable because: users are allowing us to read their CRM data and once we get the data, the data become ours, and we can do whatever we want with it. Is this true? While the users are still allowing you to read their data it is completely up to the Terms/EULA what you can do with it. However, once you have made the users think that they have withdrawn your access (e.g. they "deleted" oAuth tokens), you are no longer authorized to read the current data (although the Terms may still allow you to use the old data you obtained when you had access). Silently continuing to access their data without their knowledge/approval is definitely a deceit. The CEO wants us to download all of their emails and store them in our database There would be nothing wrong with that if it was in the Terms. But if it is not, that would be a blatant (and easily punishable) breach of privacy. Note that you may also be held personally liable for this wrongdoing (if/when proved so). "Just doing your job" claim will not work. | It is certainly possible to transfer a copyright or other IP without an explicit charge, indeed it can be a pure gift, and normally would be when it is left by will, as is common enough. From a paid consultant it might be clearer to include a statement that the transfer is part of the consulting assignment, rather than putting a price of zero in a blank. But one could instead convey a permanent non-exclusive license, granting permission to use or modify the work in any way desired, ans saying that this is provided as part of the consulting process. Then there would be no question of what rights the consultant retained, or that the same or a very similar solution could be provided to different clients. Indeed such a license would not be so very different from a CC-BY license, or any of several open source licenses, although I would not use one of those by name. But the legal effect would be much the same, and the wording could be similar. Otherwise there could be a later claim that the right transferred precluded the consultant from using the same solution for other clients. Even if such a claim was not legally sound, and was not upheld, it could be a distraction and costly of time and energy at least. | Such clauses are called "copyright assignment", "invention assignment", and/or "works for hire" clauses, partly depending on the clause's intent and wording. They're pretty common in employment contracts for software development and some creative positions. Frankly, the clauses don't actually do much, at least in the US -- copyright law already recognizes the concept of works made for hire (which belong to the employer), and claims too far beyond that are often rejected if they aren't obviously related to company business. With that said, your hypothetical programmer's painting is safe unless it depicts, say, the contents of an email from the CEO. :) Even if the clause technically entitles the employer to claim ownership, the employer has no legitimate interest in doing so. Likewise, that app created outside work is safe as long as it is created using no company resources and is unrelated to the employer's business. If the app is obviously related, that's where things get hairy. | The EULA is in most jurisdictions a legally binding contract; there is plenty of case law that supports this. You can only be liable under a contract for breaching its terms and only to the extent that the other party suffers harm from that breach. Clearly, if you haven't read the terms then you are greatly increasing the chance that you will inadvertently breach them but not reading them would not, of itself, be a breach and I can't see what harm could flow anyway. | You are absolutely allowed to discuss or describe or criticizes software (or books or other copyrighted or trademarked things) without any permission from the copyright holder or trademark holder. This includes teaching people how to use those things. You may not, however, copy protected software without permission. For example you could not include a CD with a copy of Windows 10 as part of a course you taught on using Windows 10, without permission from Microsoft. Also, you may not use a trademark in such a way as to imply that your course is approved or endorsed by the trade mark holder, or by the maker of the trademarked item. If reasonable people could think that your Windows course was approved by Microsoft, you are probably infringing their trademark. Use of screenshots is more of a grey area. Such use, for purposes of teaching or of commentary, is probably covered by fair use (in the US) or fair dealing (in any of several other countries). But that is always a case-by-case determination, and depends on the exact facts, such as how extensive the use is, and whether it in any way harms the market for the original. If in doubt consulting a lawyer experienced in IP issues is wise. But aside from the issues of screenshots, the makers or copyright or trademark holders of software have no right to grant or withhold permission to one who teaches about the softrware, nor to demand any fee from any such person. |
Is there any significance to "Inc." vs "Corp."? Oregon requires corporation names to include "Incorporated," "Corporation," "Limited," or an abbreviation of one of those. Is there any reason why a business owner might pick one over the others, other than simply preferring one of the names? E.g. does it matter if Bob's construction business is Bob's Construction Inc. or Bob's Construction Corp.? | Is there any significance to "Inc." vs "Corp."? does it matter if Bob's construction business is Bob's Construction Inc. or Bob's Construction Corp.? No. "Inc." is an abbreviation for "incorporated" and "corp." is an abbreviation for "corporation" which are really just different grammatical variations of the same word. Limited is a term that can include both limited liability companies and corporations in some contexts, so this is less desirable if you want to make clear that you are a corporation rather than a limited liability company. Making the distinction between a limited liability company and a corporation is desirable because a 1099 has to be issued for payments to an LLC but not for payments to a corporation. The word "company" is even broader and can be used to refer to any business firm regardless of its form of organization. | A reasonable person might well believe that your enterprise is being sponsored by or is affiliated with Amazon, and so you would be infringing Amazon's trademark. Even if there is no reasonable confusion, Amazon might well think otherwise and take legal action against you. You don't want to start a business by defending a lawsuit, even if you win, particularly not a suit from your supplier. Why not choose a different name, particularly as that would make it easier to expand into non-amazon cards later? Something like 'Buy Better gift cards' or 'Gift Card World' might be a better choice. In general, you may not use a firm or product name that would cause reasonable consumers to confuse you with the trademark holder, or to think that you are endorsed by, affiliated with, or sponsored by the trademark holder without permission (which you are not likely to get). | Generally, a managing member of an LLC cannot speak for the LLC in court. The LLC needs to hire a licensed lawyer to do that. The general rule is that entities may not represent themselves "pro se" through non-lawyer officers and must have a licensed attorney represent them in any court matter (in practice, a court will usually allow an officer or manager to write a letter to the court asking for a brief extension of time to a deadline to obtain a proper lawyer, even though that is logically inconsistent). If an entity does not hire a lawyer, a default judgment will enter against it. In other words, a CEO or manager or managing member of a company isn't allowed to speak for it in court. This rule is almost universal in the world of legal systems descended from English common law, although sometimes there are narrow statutory exceptions. The manager of an LLC is a person to whom legal process may be directed to begin a lawsuit, but that isn't the same as representing the LLC in court. Wyoming does have an exception to the general rule for small claims court cases at Wyoming Statutes § 1-21-202(b), which states: Notwithstanding the provisions of Chapter 5 of Title 33 of the Wyoming Statutes, in small claims court, the state, governmental entities, natural persons, corporations, partnerships, associations or other organizations may litigate actions on behalf of themselves in person or through authorized employees, with or without an attorney, provided that if an attorney appears, the opposing party is entitled to a continuance for the purpose of obtaining an attorney of its own. Keep in mind, however, that small claims court only governs claims of $6,000 or less, and only in cases where the Plaintiff has elected to file a suit using small claims court procedures. I note that this question is tagged "small claims court" but it isn't clear from the circumstances set forth in the question whether this is merely a claim for a small amount of money or is truly a claim that was filed using the special small claims court procedures in which an attorney is not required. Wyoming Statutes § 33-5-101 et seq. is the law regulating attorneys which prohibits the unauthorized practice of law that is the basis for the general rule at Wyoming Statutes § 33-5-117 which states: It shall be unlawful, and punishable as contempt of court, for any person not a member of the Wyoming state bar to hold himself out or advertise by whatsoever means as an attorney or counselor-at-law. This statute isn't perfectly clear on its face, but is understood to codify the universal common law rule so it isn't ambiguous in any way. | Only if the company consents While some jurisdictions have by statute allowed corporations to be bound by pre-incorporation contracts, New York is not one of them and holds to the common law principle that a person cannot enter a contract before that person exists. In your circumstances the company is only bound by the second contract. So, who is bound by the first? Well, corporations can only act through agents and agency law tells us that an agent who purportedly acts for a non-existent principal is actually acting on their own behalf. So, the person(s) who signed for Company X on the first contract are personally bound to the contract. Unless they explicitly told Company Y that they wouldn’t be. It seems that they didn’t so Company Y can require performance of the first contract by them and of the second by Company X. Company Y must, of course, fulfil its obligations under both contracts - it needs to bear this in mind if it is actually impossible to do both, for example, transferring the same property to the signers of the first contract and Company X or becoming a full time employee of both. If so, it might be in Company Y’s best interests to let the first contract “die”. | IANAL, and as @GeorgeBailey suggests, you should ask one. That said, some aspects of your question are directly addressable with what we know. Does US law states anything about this? Yes. Federally this falls under the Wiretap Act, 18 U.S.C. §2511. Workplace monitoring generally falls under either the "System Administrator Exception" or under Consent. In general, continuing past a banner constitutes consent. Does company policy enforcement with such a warning over ride the right to not be subject to surveillance? In general, yes. You don't need to use the companies network if you don't want to consent - and they don't need to hire you if you don't want to use their network. But it's their network, and their rules apply. There are some nuances, and courts have found that the wording of the notice has made a difference in some cases, but overall, if the systems are properly posted with banners, then the employer may capture communications. See the "Bannering and Consent" section of this article from cybertelecom.org, e.g.: Even if no clicking is required, a user who sees the banner before logging on to the network has received notice of the monitoring. By using the network in light of the notice, the user impliedly consents to monitoring pursuant to 18 U.S.C. § 2511(2)(c)-(d). Note that stored data is covered by different laws than communications. It's a nuance. Is it ethical to sniff all the data without giving any other warning than the logon banner? "Ethical" is a very different question than "Legal", and largely more subjective. Most employers require signed consent for monitoring as a condition of employment, and use banners thereafter. That is ethical by my definition, in that it meets or exceeds the requirements of the law, and does not mislead or use subterfuge. The tone of your question suggests you find it distasteful, and therefore probably it violates your personal code of ethics. | However, this uses the text "rights in an invention"; does that cover copyright? Yes. (Is this the correct law?) It certainly seems to be. Does "Relate … to the employer's business" cover the entirety of software engineering, or just the particular software engineering my employer does? Imagine that you work for a company that writes trading software. In your spare time, you develop a photo editing tool. Do you think a court would find that your project "related to the employer's business"? I do not. Or does my employer own copyright on everything down to the love letters I write? Google does not own everything their employees create; they only claim to. If someone challenged them on it, a court would decide, and probably not in their favor. | It isn't uncommon to interlineate contract language, or to cross out contract language, with the initials of the parties to the contract. This is normally only done with smaller businesses, however, where there is someone who has the authority to do so. Some contracts, such as insurance contracts, for example, have to have their language approved by state regulators before they can be used and can't be modified in that fashion. | No The intent of the proposed bill is to codify existing case law. You are an employee now and you will be an employee then. You are an employee now because a) you are not free from the company's control and direction or b) the work you are doing is the company's main business. If you read the bill you will find out that c) involves "an independently established trade, occupation, or business" so your business qualifies for this but you need to qualify for all three factors to be an independent contractor. |
Can a director of a for-profit corporation be unpaid, or paid a nominal salary? If a corporation has a director who doesn't actually do much and is just there to fulfill a legal requirement, and the director does not want to be paid, is that legal? What about a $1/year salary? Does it matter if the director is a shareholder? | A member of the board of directors of a corporation does not have to be paid, and can likewise be paid only a nominal amount. Members of the board of directors in closely held companies are rarely paid for that service, although some pay for members of the board of directors is the norm in publicly held corporations. Most members of the board of directors in closely held companies are managers, owners, or representatives of owners of the company, who derived economic rewards from the company primarily in those roles. Compensation for outside directors in publicly held companies reflects the fact that these directors, collectively, typically own only a tiny percentage of the stock of the company upon whose board they serve and by definition are not employed by the company in another capacity. So, the value of their contributions is often not fully captured by other means of receiving economic rewards from the company. Payments for serving as a member of the board of directors of a corporation, at least when one is not also an employee of the corporation, are classified as self-employment income. Members of the board of directors who are not also employees of the corporation are usually considered independent contractors rather than employees. | I've been wondering if it is possible to hire / create a company with someone who would open a restaurant in my place and manage it according to my guidelines. Yes, of course. You can do it just like you described: Create a company, hire employees, (let them) open the restaurant. You, as the owner of the company, could set up whatever guidelines you have in mind, and your employees would be bound by them (limited only by general laws, such as on health and safety). Some caveats, however: You will need money to set this up - for buying / renting space for the restaurant, for paying your employees, obtaining supplies, initial marketing etc. It may take a while until the restaurant earns money (if ever), and you'll need money in the mean time. Someone will need to manage, that is make decisions. You can do that yourself, but then you will work for the restaurant (which you write you do not want to do). Or you can hire someone to do it for you, but that will cost more (in salary), plus you will have to find someone you can trust. That's a tradeoff for you to make. I guess it'd be like an intellectual property. That depends, but usually there will be little in terms of intellectual property. If you have a unique idea for the restaurant, you could patent it, but there are many restrictions on what you can protect, and ways around it, plus this also costs money (a lot if you need a lawyer's advice). Apart from that, you can register a trademark for the restaurant, but that only protects the name / logo, not any ideas. Finally, some of your ideas might be considered trade secrets, but again the protection is limited. In general, there is no blanket "idea protection". If you have a good idea for a restaurant, in most cases other restaurants will be able to copy them, possibly with slight changes - take that into account. | UK: For all I know you cannot be fired unless you are hired. They must hire you. Once a job offer is made and accepted, they must hire you. If they don't, call a lawyer. I personally know someone who got hired, and when he arrived for his first day's work at the new company, he found that the whole department that he was supposed to join had been laid of. The company had to hire him. PS. "Financial difficulties" means you call a lawyer urgently. Once they are bankrupt your chances of extracting money are not good. | This is a well established model in the UK. One route is the umbrella company. Y here would be the umbrella company. A would then either be providing services to Y or be employed by Y. You may be wondering what use it is if A is employed by Y. The answer here is that whilst A may not benefit from the tax treatment, X does not bear the burden of running PAYE etc. Further, because of regulations such as IR35, it may be that there is a doubt as to whether employment tax apply even if there is a contract for service. Essentially disguised employment means taxes are levied on the employer as if an employment existed; however, in this situation X has the comfort that if this arises they will (normally) fall on Y rather than X. Another route is the service company, where normally A himself will own it (or it is owned between A and A's spouse), take a combination of salary and dividends out (using two allowances if owned between spouses), and he will bill X or Y; companies exist which will perform all the necessary paperwork to do this (in which case Y is called a managed service company), as opposed to a personal service company (if A sets it up himself). It's not clear where you are based, but if you are based outside the UK (and possibly if you are inside the UK) there are accountancy companies that specialise in setting all this up. | TL;DR: It is a $100.000 lawsuit. Talk to a lawyer. If getting out of lawsuits was as easy as acting through a company and selling it afterwards, nobody would ever get paid damages. In addition to that, any answer will depend heavily on a lot of data that you do not disclose (location, kind of company, what is the basis for the lawsuit, etc.). Talk to a lawyer. But, a couple of points to help you understand the situation: the only reason she was 51% shareholder was because my father wanted a certain tax exemption for minority women owning businesses. It does not matter the reason, she was the shareholder. And in fact, I would not publicly use that reason as an excuse before checking with a lawyer, because perhaps it could be considered fraud1. she gave up her rights to the business. Exact wording of the agreement will be important for your lawyer. Did she return ownership of the stock? Or did she just agreed not to manage the business? In C corporations, stockholders are only liable for the money invested (i.e., the value of their stock may drop to zero, but no one can sue them for more). In other kind of companies (unlimited companies), owners can be forced to pay (fully or partially) for the debts of the company. does it matter if she sells her shares at this point or will she still be sued? Who exactly is going to buy the stock? It does not sound like the company is publicly traded, but just a small operation. Unless her 51% is worth more than she is being sued for -or the buyer thinks that the lawsuit will fail-, people won't be interested. Of course, it might be tempting to "forget" telling about the lawsuit to prospective buyers, but that probably will end with the buyer suing your mother when they discover that she has not fully disclosed the status of the company. Talk to a lawyer. 1But explain all of the details to your lawyer, s/he may make use of them and convince your father to take full responsability. And your lawyer will not inform the authorities. Talk to a lawyer. | What you describe is forbidden by corporate law in every jurisdiction with which I'm familiar. I don't know the law in Quebec, but in principle: An entity in control of a corporation can't use that control to unjustly enrich himself at the expense of other shareholders. (If he does so through deceit then he is committing the common law tort of fraud, and quite likely a criminal offense.) A trustee or fiduciary that uses his control of assets to enrich himself at the expense of those to whom he owes a duty (e.g., minority shareholders) is guilty of various statutory offenses, among which may be "Breach of Fiduciary Duty" and "Fraudulent transfer." Sales of corporate assets in general must be done through an "arms-length" mechanism. If they are being auctioned off, and the auction isn't open, so that an insider is able to purchase them below "fair market value," then, once again, a fraud has been committed. The grading and remedies vary by jurisdiction. Of course, whether it's worth pursuing a remedy through legal action depends (as always) on: the amount at stake, the cost of pursuing the remedy, statutory allowances for punitive damages, the likelihood and cost of collecting on any judgement won. Only a lawyer familiar with the jurisdiction, the complaint, and the corporation's governing documents could help you answer that question. | They can ask, but there is nothing in law - that I can find - which obligates an answer. (There may be some exceptions that require a previous employer to provide a reference which might include this detail, but that does not appear relevant here.) As an aside, there is an ongoing #EndSalaryHistory campaign by the Fawcett Society which is focused on equal pay and sexual equality in the workplace, and they are calling on employers to: stop asking salary history questions... | Without commenting on the relatively strange situation itself, it is still useful to actually read what was actually said than what was described in a letter from a third person, even if the relayed information is technically true. The supposed basis for the claim of a zero salary is from an email allegedly sent by the department head (appendix 15): In short, you are not teaching in 2022/2023 and you have not submitted the required outline of your research or other engagement. I am very sorry that we cannot establish that you will be doing any work expected of a faculty member. Thus we cannot pay you. Starting with the Fall semester, your pay will be reduced to zero and you will be placed on unpaid personal leave. Essentially, the professor is being put on an unpaid leave because allegedly he is not doing any work. Consequently, minimum wage laws are not engaged even if the professor is not exempt as teachers since he is not being required to do any work. In the U.S., employers generally can do this (unless a work contract provides otherwise); in many circumstances, it is called being laid off (though the term has attracted a permanent connotation in parts of North America) or being suspended. An indefinite unpaid leave can be considered constructive dismissal if the employer does not reasonably allow the employee to return to work. It may not be constructive dismissal if the unpaid leave is prescribed by binding employer policies or because the employee refuses to work (and the employer allows the employment relationship to continue). Even if it is constructive dismissal, it is not automatically wrongful. |
Can Congress enforce an overturned Supreme Court decision? Democrats in Congress have mentioned codifying Roe v. Wade into law (whatever that means). However, I was under the impression that Congress couldn't overturn a Supreme Court decision on a Constitutional question (in this case, the question of abortion rights in the US). The overturning Dobbs decision, therefore, remains intact and there's nothing Congress can do, short of "packing the court." | They can't overturn the decision; but they don't have to. The holding in Dobbs was that the US Constitution does not provide a right to an abortion, and so a state law prohibiting abortions is not unconstitutional. Congress can't "overturn" it in the sense that they can't make the Constitution provide such a right, short of a constitutional amendment. But that in itself doesn't stop them from providing such a right in other ways, e.g. through ordinary legislation. Under the Supremacy Clause, such a law would supersede any state bans; provided that it falls within the scope of Congress's enumerated powers, which assertion would itself probably be challenged in court. If it's within their legislative power, then there's no conflict with Dobbs. To give a more mundane example, nobody thinks that there is a constitutional right to have an airline ticket refunded within 24 hours of purchase. If the Supreme Court ever had occasion to rule on the question, they would surely hold that nothing in the US Constitution says that people have this right. But Congress does have the power, under the Commerce Clause, to pass legislation that confers such a right on consumers. They have done so, and this law would not in any way conflict with the aforementioned hypothetical Supreme Court ruling. | Separation of powers means that the judiciary can't pass laws or executive orders. It doesn't mean that the judiciary can't interfere with their passage and enforcement. Quite the opposite -- the checks and balances inherent in the system ensure that the judiciary can interfere in some cases. One of the checks is the concept of judicial review: the courts' power to review each branch's actions for compliance with the constitution -- and more importantly, to strike down actions that are unconstitutional. When a court strikes down part of a law, though, they aren't writing a new law, or even repealing a law. They are overturning parts of the existing law -- basically declaring the unconstitutional parts of it void, to be treated as if they didn't exist. In India's constitution, Article 13 provides the main basis for this power. Article 13.(2) (in Part III) states: (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. This article, aside from making it clear that laws passed by the State can be void, also gives the Supreme Court the inroads it needs to do the overturning. The catch is, the Court can not overturn most laws passed by Parliament, just the ones that Part III can be construed to prohibit. (While the judiciary is not explicitly named, it's the only branch that can officially say whether or not a law is constitutional. It'd be a conflict of interest anyway for Parliament to do it. Parliament, in passing the law, presumably wanted it to be enforced, and thus has an interest in avoiding too much scrutiny.) So the Court can already declare an unconstitutional law void, because it already is...and that's before we even get to Article 142. Let's take a look at the article anyway: (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself. Note that (2) explicitly grants the power to issue subpoenas, contempt citations, etc. So we can't claim that's what (1) was intended for, and have to ask what it means. The Court decided that the article gives it the power to order the government not to violate your rights, as such an order is "necessary for doing complete justice". And as the final arbiter of the meaning of the very text that defines it into existence, it has that prerogative. And due process is one of the rights protected. Article 21 (also in Part III): No person shall be deprived of his life or personal liberty except according to procedure established by law. "Procedure established by law" is a much weaker phrase than "due process", and technically meant that anything that the government scribbled into law was good enough. But case law has all but removed the distinction. (See Maneka Gandhi vs Union Of India.) Basically, any procedure for depriving someone of life or liberty must be just, fair, and reasonable. (Otherwise a law declaring you a criminal, to be arrested on sight, would be constitutional.) "Someone filed a complaint" simply wasn't gonna fly. | Art. 1 Sect 5 of the Constitution empowers both houses to make their own rules. That means that they can articulate rules regarding what or how you can talk on the floor. It is held that the president of the senate can issue a ruling, and the ruling can be overridden by majority vote. If the Constitution were amended to be more specific about rules of conduct, then some such Senate rules might be unconstitutional and SCOTUS could invalidate the rule. The only specific constitutional requirement on conducting business is that a majority constitutes a quorum. | Note the following argument: the landmark 1819 case of McCulloch v. Maryland, which ruled that state officials cannot obstruct “the measures of a government [the federal government] created by others as well as themselves.” “In other words,” Kalt and Amar summarize, “a single state cannot use its power to derail the functioning of the United States.” (Amar is a Yale constitutional law professor, Kalt, his student) On the other hand, you have the argument by a Hofstra constitutional law professor that the 25th amendment can be applied when the President is occupied with a criminal case, ergo, the functioning of the United States can be carried on unimpared. At the end-of-the-day there is no absolute answer as it is still being argued academically and has never been specifically settled by the courts. | There is no "different legal procedure" for challenging the constitutionality of a law. The only way to do so is through the process that this question contemplates: to argue that the law is unconstitutional in a civil or criminal trial. Whether the law bears directly on the matter at trial or only on ancillary matters such as discovery, the court has the power to find the law unconstitutional and to issue orders accordingly. The extent to which such a ruling binds other courts depends on which court issues the ruling. | The powers of the President are contained in Article II of the constitution; this is a fair summary. The power to make executive orders stems from Section 1 "The executive Power shall be vested in a President of the United States of America." When the Supreme Court considers the legality of an executive order (which only happens when someone brings a case that the court agrees to hear) they use Justice Jackson's Test from Youngstown Sheet & Tube Co. v Sawyer (1952). The first amendment specifically forbids congress from making laws about these matters. Therefore the express will of congress (as the amendment required a 2/3 majority of Congress) is that there shall be no law about these matters. Since the President would be acting against the express will of Congress he would drop to the third limb of Jackson's test: When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.... Since, this is not a power that the President is given by the constitution it is likely that the Court would decide that he doesn't have such power. | Any precedent can be overturned by any court at the same or higher level in the hierarchy So, for your example of a High Court precedent, it can be overturned at Supreme Court, Court of Appeal or High Court levels. However, the longer a precedent is in place, the less likely it is to be overturned because one of the objectives of the legal system is to provide certainty - a system that routinely overturns precedent doesn’t do that. Also, a precedent that is often cited with approval is more compelling because it’s no longer just one judges reading of the law, many other judges agree. Also, the judiciary tends to be conservative in overturning precedent. Most judges see it as their role to interpret law made by the legislature. If the people/legislature think their interpretation is wrong then the judiciary tends to feel that the legislature is the body who should change the law. That said, really old common law precedent that hasn’t been cited for a long while may be readily overturned if it comes up because social expectations may have changed. | There is no parallelism between the Texas decision and the proposed lawsuit. In the anti-mifepristone lawsuit, there exists a statute granting the FDA authority to regulate and review new drugs, and a petition procedure whereby citizens can state ground for the Commissioner of Food and Drugs to consider a regulatory action. There is no statutory basis on which a ban of meat-eating could be created by executive action. Congress cannot be sued for not passing a law (failure or refusal of Congress to pass a particular law is not justiciable). If, for example someone were to submit a petition to the FDA urging such a regulation, the petition would have to be denied because the FDA does not have statutory authority to issue such a regulation. As argued here, the anti-mifepristone plaintiffs lack standing in that case, so one can expect that to be a substantial issue in the subsequent appeal. |
What is the shortest illegal statement? In the US, it is a criminal offense to perform the statement "I want to kill the president". However, to simply quote it, as I just did, is permissible; the statement is by itself not illegal. In the US, is is also a criminal offense to quote a copyrighted work in public, unless this is covered by fair use laws and so on. The following computer code would violate the anti-circumvention provisions of the DMCA, had I not redacted a line (the horror!): #define m(i)(x[i]^s[i+84])<< unsigned char x[5],y,s[2048];main(n){for(read(0,x,5);read(0,s,n=2048);write(1,s ,n))if(s[y=s[13]%8+20]/16%4==1){int i=m(1)17^256+m(0)8,k=m(2)0,j=m(4)17^m(3)9^k [redacted] ;c=c>y)c+=y=i^i/8^i>>4^i>>12,i=i>>8^y<<17,a^=a>>14,y=a^a*8^a<<6,a=a>>8^y<<9,k=s [j],k="7Wo~'G_\216"[k&7]+2^"cr3sfw6v;*k+>/n."[k>>4]*2^k*257/8,s[j]=k^(k&k*2&34) *6^c+~y;}} In New Zealand and Australia, it is, regardless of context, a criminal offense to post or possess the "The Great Replacement" manifesto, which is 74 pages long. This applies regardless of context; it is not permitted to quote it in full, even if you are not performing it. However, short fragments are fine. What is the shortest statement that is, unto itself, a crime to communicate in any OECD country, use-mention distinction notwithstanding? | The "Hitlergruß" In germany, statements and even gestures that are identified with the nazi ideology are a criminal offence under StGB §86a (Dissemination of Means of Propaganda of Unconstitutional Organizations) and StGB $130 (Volksverhetzung), leaving a gap only for art, science, research or teaching. This makes the "Hitlergruß" with or without the accompanied statements of "Heil", "Sieg Heil" or "Heil Hitler" an offense that can end you in prison unless you can point to one of the allowed exceptions: up to three years for the dissemination of means of propaganda and at least three months but at max 5 years for Volksverhetzung, especially §130 (3) & (4), the general sentence frame thus would be three months to three years, unless other factors allow for more - the typical sentence is 6 months or a quite hefty fine (some have been known to be 5000 €) austria bans the same gesture and sentences via Verbotsgesetz §3g as promoting the national socialist ideology through means that are not in §3a-f (which span more or less trying to keep the nazi party alive and violent crimes) and punishes it with (theoretically) up to 10 years and for extreme cases double that. In switzerland, the gesture is a hate crime if you promote the nazi ideology with it. slovakia as well es the czech-republic also deem this gesture, with or without the words, a criminal offence (up to 5 years in both parts of former czechoslovakia), sweden deems it a hate crime (see here) and italy deems it the same if associated with the Italian Fascist Party. Several other jurisdictions, including in the united-states, do recognize that performing this form of "speech" can be either a hate crime or an offence against public order of some sort. This makes the gesture of "extending the right arm to neck height and then straightening the hand so that it is parallel to the arm" (and possibly using the 4, 8 or 10 letters together with it) the shortest illegal statement - which atop that is possibly the single statement that is also illegal in the most jurisdictions worldwide and not a true threat. | These images were quickly taken down to settle this problem. It doesn't settle the problem, at least under US law, because a former infringer may still owe statutory damages under 17 USC 504 (and I imagine under some analogous Canadian law). Ceasing the infringement does not extinguish the plaintiff's right to those damages, although it may limit the size of the damages. However, the opposition in question continued to try and sue for more, claiming that the information on these properties were taken from them (which is apparently incorrect and lacks proof) Information, in and of itself, is not subject to copyright protection in just about any jurisdiction in the world (see for example 17 USC 102(b)). It has been suggested in the comments of another answer that this may nevertheless be a trade secrets violation, but that would only be the case if the information had been non-public and the site appropriated the information from an unpublished source belonging to the plaintiff. If the plaintiff deliberately caused this information to be published on their own website, then trade secret law certainly does not apply to it. Nevertheless, if the site copied literal text or images from the plaintiff's website, or closely paraphrased it, that is an infringement of copyright. Copyright protects the creative elements of the text, even where the text is serving a primarily utilitarian or functional purpose. but they continue to drag this on in an assumed attempt to try and make the defendant basically spend all their money fighting this off before it gets before a judge. It is unclear what you mean by this. The normal process is for the plaintiff to send the defendant some sort of written demand, the defendant either complies or they don't, and then the plaintiff either files a lawsuit or they don't. If the plaintiff never files a lawsuit, the defendant is under no obligation to continue interacting with the plaintiff, and can simply wash their hands of the matter. Depending on the circumstances, this may or may not be wise, as settling is often more cost-effective than going to court. Ignoring the plaintiff increases the likelihood of a lawsuit being filed. But if there is no lawsuit, then there is nothing to "fight off" in the first place. | Copyright in the US is usually a civil matter. Meaning that the copyright owner can sue (typically for money damages or injunctive relief) an infringer. The criminal laws that we have are aimed at the reproducer and/or distributor. In other words, chances are that you won't get in any criminal trouble for accessing academic articles of dubious origin. But never say never. RIP Aaron Schwartz. | This would be unauthorized access to a computer. The offence is found in Section 1 of the Computer Misuse Act 1990. Note that this is a criminal offence, approaching the police about it might be the best way of handling the situation (if you want to go that route, and also, I'm not a lawyer). | The law is really bad at protecting whistleblowers From my understanding of US law, this is not unauthorised access to a computer: the reporter made a legitimate request to a remote computer, that computer provided data,the reporter accessed the supplied data on their own computer. However, pointing out the failures of people in power is fraught even if it is not illegal. It is certainly within the Governor’s power to authorise an investigation of the reporter. On the face of the law, it seems reasonable to suspect that what was done might be a violation so there is nothing legally wrong with initiating an investigation. I suspect that such a broad interpretation of the law would fall foul of the First Amendment which may partly explain why it wasn’t prosecuted: the government doesn’t want to find out. Similarly they can issue press releases, which, due to the First Amendment, don’t have to be true, just not defamatory. Saying it’s a possible violation is true and not defamatory. Saying the reporter was an evil person who is only doing this for political purposes is a statement of opinion and not defamatory. It’s a fact of the world that people with power can use that power in ways that are malicious, unethical, and unfair but not necessarily illegal. | This could be a violation of 18 USC 1030 (and a crime). A number of things go into requirements for conviction under this law. First, it has to be a computer, which is defined as an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device Any printer that I have encountered in the past 40 years counts as "a computer". Second, (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—...(C) information from any protected computer; It is highly likely that the person printing has to receive some information from the printer, and respond accordingly so you have your "obtains information" element. Maybe not useful information, but information nevertheless. It also has to be a protected computer, (B) which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States Well, a computer connected to the internet is a protected computer, see US v. Trotter, 478 F.3d 918. Also, the access must be "without authorization or exceeds authorized access". The law doesn't explain with "without authorization" means, but the latter is defined as to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter If the law were stated in terms of "prohibited access", meaning "express denial of permission", and if the computer owner had set the computer to "prohibited access" by default (password protected), there would be no issue -- accessing the computer is prohibited. "Unauthorized" can also mean "has not been explicitly authorized", i.e. lacking any indication one way or the other. Every computer access is initially unauthorized, until authorization is granted; and re-trying a login after mis-typing a user name (and being denied access) is not a violation of this law. There does not appear to be case law that addresses the status of computers just left open to the public, and whether using a computer that is so exposed constitutes "unauthorized access". Also, it is not clear that the defendant in this case has "obtained information", since with printing, information flows into the computer. There is also a clause about recklessly causing damage, but I don't see what damage would result ("damage" is defined as "any impairment to the integrity or availability of data, a program, a system, or information"), and how printing would be "reckless". It seems somewhat unlikely that this would be deemed to be a crime, though if you experiment, you could be on the cutting edge of new case law. | Not all illegal things are crimes. Lack of evidence. They are asked to testify, and they say "what I said in my book was a lie". There is no general law against lying, except when under oath. Statute of limitations. Saying "10 years ago I did smoke drugs" means that any offence is no longer prosecutable. Lack of details. Which jurisdiction were they in? When did they commit the act, how many acts? You cannot be arrested for being a "bank robber" or a "murderer". You are charged with "robbing Bank X on 123 Fake Street the Thursday 25 April 2018" or "murdering Jim Thio in January 2017". Otherwise the defendant would have a hard time defending himself (how to prove that you have not killed anyone at any time?) All of the above combined with prosecutorial discretion in the form that any possible prosecutor will most likely determine that bringing charges would be just a waste of time and resources. UPDATE February 2018: Just for the sake of completeness, a reference to the situation of Jacques Cassandri, who did boast about a serious crime(a robbery in a Societe Generale vault in 1976) in a book. Unfortunately for him, he made some kind of mistake/miscalculation and the crime had not yet expired, so he has become an example of someone being prosecuted by confessing a crime in a book. | I'm not sure this would be a copyright violation. 17 USC 117 says: (a)Making of Additional Copy or Adaptation by Owner of Copy.—Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner... Due to the shutdown of the license server, it is impossible to use the program without an adaptation. It is therefore an "essential step in the utilization of the computer program", and not infringing, in my opinion. |
Is releasing this company's documents illegal? I run a website where I sell materials for students interested in finance, law and consulting. My website contains case studies from actual previous interviews. Recently, one of the firms' HR reached out regarding one of my case studies and asked me to take it down. The case study is just a word document and an accompanying excel file that contains no indication of confidentiality. They said that they were using the same case studies in recruiting until they found my website (note that candidates regularly come to my website to buy said material). They also said if I do not remove it they will refer to their legal department who will take action against me. My question is, am I required by law to take the case studies down? What are the consequences if I do not? I am based in the U.S and the company is based in the UK with offices in the US and Asia. | Given the clarification provided in the comments to the question, the company has a copyright in the material and as such is legally entitled to demand that you cease using it. | are there any safeguards you could take to preemptively block such behavior, such as a disclaimer inside the book cover that reads something like The safeguard you outline would be overridden as soon as the author enters any contract that requires assignment of copyright. (I would not delve in the differences between licensing and copyright assignment because that hypothetical author is dealing with a contract of adhesion which readily requires assignment; the author has no option to change the ToS to allow for licensing only) Under contract law, one of the essential prerequisites is that the conditions of a contract be entered knowingly and willfully. By deliberately clicking on a ToS page to move forward with the uploading a copyrighted work, the author is signaling his awareness and acceptance of the ToS. The fact that the author chose not to read the ToS is irrelevant and very unlikely to strike whatever entitlements the website owner formulated in the accepted ToS. For the same reason, the author's safeguard disclaimer does not bind the website owner: It cannot be said that the website owner was aware of that disclaimer at the time of the formation of contract between the author and the website owner. That is, the website owner did not knowingly and willfully accepted the author's safeguard. The website owner is not even expected to know about any safeguards which one of its potential user intends to establish. The length of a ToS document is also irrelevant because the website owner has the valid argument that "the user-author could have skimmed through the ToS or do a search (via Control-Find) of keywords such as 'copyright' or 'property', whence any allegation of 'inadvertent' assignment of copyright is untenable". Is there a way to protect your IP from inadvertently being licensed/stolen/assigned via TOS "agreements", without having to waste your life reading huge one-sided online "contracts" that are "subject to change without notice" anyway? Yes. That consists of not uploading one's works in such platforms. In contract law that would be expressed as "declining an exchange of considerations". There are many other alternatives for an author to promote his work without being required to assign copyright. | UK: For all I know you cannot be fired unless you are hired. They must hire you. Once a job offer is made and accepted, they must hire you. If they don't, call a lawyer. I personally know someone who got hired, and when he arrived for his first day's work at the new company, he found that the whole department that he was supposed to join had been laid of. The company had to hire him. PS. "Financial difficulties" means you call a lawyer urgently. Once they are bankrupt your chances of extracting money are not good. | united-states The flowchart included in the question is trying to summarize a rather large amount of legal uncertainty into one image. It must be emphasized that each decision point represents an unsettled area of law. Nobody knows which path through that flowchart the law will take, or even if different forms or implementations of AI might take different paths. The short and disappointing answer to your question is that nobody knows what is or isn't legal yet. To further elaborate on each decision point: The first point is asking whether the training process requires a license at all. There are two possible reasons to think that it does not: AI training is protected by fair use (see 17 USC 107). This is a case-by-case inquiry that would have to be decided by a judge. AI training is nothing more than the collection of statistical information relating to a work, and does not involve "copying" the work within the meaning of 17 USC 106 (except for a de minimis period which is similar to the caching done by a web browser, and therefore subject to a fair use defense). The second point is, I think, asking whether the model is subject to copyright protection under Feist v. Rural and related caselaw. Because the model is trained by a purely automated process, there's a case to be made that the model is not the product of human creativity, and is therefore unprotected by copyright altogether. Dicta in Feist suggest that the person or entity directing the training might be able to obtain a "thin" copyright in the "selection or organization" of training data, but no court has ever addressed this to my knowledge. This branch can also be read as asking whether the output of the model is copyrightable, when the model is run with some prompt or input. The Copyright Office seems to think the answer to that question is "no, because a human didn't create it." The third decision point is, uniquely, not a legal question, but a practical question: Do you intend to distribute anything, or are you just using it for your own private entertainment? This determines whether you need to consult the rest of the flowchart or not. The final decision point is whether the "output" (i.e. either the model itself, or its output) is a derivative work of the training input. This would likely be decided on the basis of substantial similarity, which is a rather complicated area of law. To grossly oversimplify, the trier of fact would be shown both the training input and the allegedly infringing output, and asked to determine whether the two items have enough copyrightable elements in common that copying can reasonably be inferred. | If a website's TOS has restrictions against unauthorized copying and use of anything in the site, that applies to the TOS, too. Chances are, no one will do a Google search on the exact text of their TOS to find if someone has copied it; but who knows? If they paid a legal service to draft a very specific and original TOS, they may be concerned with others copying it illegally. Beyond that, their TOS is a legal document. Your TOS is a legal document. Your users sign a contract when they click and accept. If you copy and paste a TOS, and don't understand exactly what is in it, and you and your users are bound by that TOS, what kind of legal risks do you open yourself up to? A simple Google search yields https://formswift.com/terms-of-service among others. Or try one of the many services like LegalZoom. | united-states Facts are not copyrightable. Assuming Scrapehero collected these facts in a legal manner and assuming the source of these facts does not contain copyrighted (protected) material, then selling such a collection may be legal. Of particular relevance is Feist Publications, Inc., v. Rural Telephone Service Co.. Here, Feist Publications copied Rural's phone directory into Feist's own phone directory. The supreme court found that Rural's phone directory was not copyrightable and thus not protected. Of course, this cuts both ways. Assuming Scrapehero did not inject creativity into the data, nothing stops a recipient of such data from distributing it themselves. In practice, this probably isn't a concern for Scrapehero. This answer is US-specific. Some countries recognize Database Rights, which may prevent such activity. | (IANAL, of course) My employer tells me that EVERY professional activity belongs to the company and for EVERY activity I mentioned before I need to get written permission, That's true for software (and inventions) that may be relevant for them, but not for other professional activities. which could be withdrawn at any moment. No, not in that very general sense. they can give the permission to publish possibly relevant pieces of code on SX, and they can withdraw that permission for the future. But they cannot take it back for the past. Once they tell you they don't want your invention, there's no way back from that decision (and there are legal deadlines for claiming relevance). Even if they require written permission for you to take a side job, they must give it unless they can show a valid reason against you taking the side job in question. And that would be a per-side-job decision. And it doesn't matter if I do it on my free time on my computer at home or not. That is indeed the case for copyright of software and for inventions. clause is to protect your employer from you helping anyone who is their competitor/you being their competitor while the employment lasts. This is pretty standard and, I believe, not only legal but would be the case also if they had not spelled out this to you. The lines between what is and what is not competition are sometimes a bit complicated* So, if your employer specializes in subway station surveillance systems and you work on face recognition and then help out your local pigeon breeder's association by implementing automatic door opening by camera + automated face recognition of the [unwinged] members that's close enough to touching the interests of your employer that I'd consider it off-limits unless you had talked to your employer and they are happy with this project (after all, they could be preparing similar products unknown to you). OTOH, overhauling the crappy Excel macros for the regional annual breeder's competition would be fine. And in general, the lower your position there and the further from the actual focus of the company, the more normal it is to have another job (think janitors, canteen staff of a software company as opposed to a janitor in a hire-a-janitor-service company) The general duty not be in competition with your employer also in general prevents you from being involved in a competitor business to the extent that you have noticable influence over that competitor. So the second part of clause 1 shouldn't be too surprising, neither. (update) OTOH, what may make this particular clause invalid is the requirement also for publicly traded shares that they cannot come with voting rights. I somehow suspect that thus prohibiting you from "normal person small scale ownership" of publicly traded stocks (not all of them even have non-voting shares) is undue and invalid (too broad a restriction). However, if that clause is invalid the legal default of "no competition to employer" still applies. Here's a (German language) web site of a lawyer that discusses these questions See also here https://www.hensche.de/Rechtsanwalt_Arbeitsrecht_Handbuch_Wettbewerbsverbot.html Unlike the 1st clause, this is AFAIK not a spelled out default of German employment law, but it may be a spelled out version of a Tarifvertrag (unionized group contract). In any case it is probably legal to have this clause in the contract. The point is that the employer can only forbid the side job if it is against their reasonable interests, a general "no side jobs whatsoever" would be invalid. Side note: they may even be of the opinion that employment law forces them to have some such clause: the employer has a legal responsibility to ensure that you are not working more than the number of hours allowed by law. I've had such a permission that stated the constraint that the permission is valid only as long as I ensure that I stay within those legal limits and my working ability for employer is not compromised. https://www.hensche.de/Rechtsanwalt_Arbeitsrecht_Handbuch_Nebentaetigkeit.html https://www.fachanwalt.de/ratgeber/nebentaetigkeit-als-arbeitnehmer-anmelden-zustimmung-und-muster-antrag https://www.haufe.de/personal/arbeitsrecht/top-thema-nebenbeschaeftigung/nebentaetigkeit-und-arbeitsrecht-was-erlaubt-ist_76_418602.html Copyright law for employees in Germany is somewhat difficult. the one exception is copyright of software where §69b UrhG transfers the transferrable rights automatically to the employer. Whether the software is written out of office and outside working hours is irrelevant, as long as it is done in "fulfillment of the employee's role or the employer's orders" (famous court case) so again, if at work you code facial recognition systems and in the evening the pigeon breeders accounting system, the latter is not related to your work. Your open source game is also OK unless you are employed as game developer. Also that not all code is subject to copyright. An obvious explanation on SX explaining a typical pattern would not be a creative work (though the full answer may very well be) in the first place. But for creative works other than software such as plans how to implement features, technical drawings, etc. working hours or not seems to be more important for assigning the rights and the rules seem to be more similar to employee invention law ArbnErfG): if it is outside working hours and possibly relevant for the employer, the employee has to offer it to the employer before trying to sell to someone else. The clause that employer must give permission to publication of content that is possibly relevant for them seems to me to be in line with these general rules. https://www.zeit.de/karriere/beruf/2011-06/arbeitsrecht-urheberrecht https://eventfaq.de/25510-urheberrechte-im-arbeitsverhaeltnis/ http://www.urheberrecht-leipzig.de/urheberrecht-nutzungsrechte-des-arbeitgebers-an-kreativen-leistungen-der-mitarbeiter.html * I've been advised in a situation where I still believe I was not competing, and even had a written permission, that this is the stuff that makes lawyers rich, and both employee and employer poor.... Take home message: even if you believe to legally have the right to publish on SX/contribute to an open source project, think again whether you'd want this to be the source of a conflict with your employer - or whether there isn't a win-win possibility that makes everyone happy instead. What is the most legal way to participate in public activities in such situation? I'd advise to be open about what public activities you'd like follow. Whatever the contract says, your employer can always give your more permissions. In the past, I've found the majority of employers being happy to see me contributing (some had similar clauses to yours and just wanted to know, some was happy about an open source project I brought, some like to be able to say where their employees volounteer, etc.). Although there was one who wasn't (and that did contribute to my decision to leave there). From that experience, I'd personally discuss this early on now: in case the employer turns out to be too intrusive (speak to Betriebsrat or lawyer or your union if you have one to make sure they really overstep their rights) for my liking, for me that would be a reason to cancel the contract which is easier & faster during probation period. | It is legal and quite common. Your choice as consumer is at the point of selecting insurance company. If you dislike ES enough, that would be a reason to select a different insurance company. It would be surprising if your ES contract disallows pharmacy pick-up, but even if it did, that would also be legal. This does not mean that the government doesn't have the power to break up Express Scripts, under anti-trust laws. There is no clear rule regarding how successful a company can be in attracting customers. |
Is it possible to be reimbursed by the NHS or government for price difference of gluten-free food? I've heard years ago that if one with gluten allergy saves receipts then since the diet is their medical treatment then the government reimburses the cost difference between GF and non-GF options. However upon searching all I was able to find were materials about certain basic foods like beads and mixes and previously pizza bases etc. Being "prescribed" by the NHS. | There are prescription basic staple foods that must be in the prescribing formulary with restricted variety, which may be free or reimbursed, depending on your place of residence and circumstances. If the government did reimburse the cost difference, it would be very likely be on the information section of Coeliac UK. As no mention of such reimbursements can be found, it is likely what you have heard is false. In some countries, but not the United Kingdom, medical expenses are tax deductible. This does not mean the government reimburses the cost of medical expenses, but that medical expenses reduces the taxable income based on which a tax rate is determined and applied. Some jurisdictions (e.g. Canada) do accept the difference between gluten-free food and "normal" food as part of medical expenses, provided that documentations are meticulously available. In other jurisdictions (e.g. Switzerland), a lumpsum deduction is available to compensate. | No. There could be a remote possibility if Alice knew of Bob's severe heart condition (but even then, no reasonable person would expect someone to get a heart attack out of disagreement over personal tastes however heated/cutting). But as she does not, no chances. Poor Mr and Mrs Bob. | This might be legal to do with patients in some places, but it is probably not legal to do in general, although it might be hard to enforce the laws prohibiting this conduct against a provider in Pakistan. Different countries and sub-national governments regulate providing therapy differently. Some don't regulate it all, so you would only have to comply with the law of Pakistan on the subject, if any. Other places require an occupational license to provide therapy, and in those case, the law of the place where the patient resides could apply that licensure requirement based upon where the patient resides, where the therapist is located when the service is provided, or by some other rules. You would have to determine this on a jurisdiction by jurisdiction basis to be legal. Many jurisdictions also have VAT or GST taxes that would apply to fees collected for therapy services provided to someone in their jurisdiction, and this would also be a compliance issue if there was fee for the therapy. As a practical matter, you would also have to consider if there was any meaningful way that you could be punished for providing therapy services or not paying taxes in particular jurisdictions where some patients might reside or be receiving your app's services. If there was no meaningful remedy for violating those laws against your company in Pakistan, you might decide to ignore those laws because you could. | You asked about other jurisdictions. As you'll probably be aware (from cases like EU vs Microsoft and EU vs Google) European countries and culture tend to have much stronger protection laws for consumer and employee rights than the US does. In the UK you could make a strong case, although such cases are not often undertaken. The current legislation is Part 2 of the Consumer Rights Act 2015, but the unfair contract terms clause goes back to at least the Unfair Terms in Consumer Contracts Regulations 1999. Basically the law protects a person in a situation where disparity of size and bargaining power have led to unfair terms in a contract (typically a large company offering "take it or leave it" standard terms) - and specifically if they create a significant disparity in the parties rights and obligations. In such a situation the company which drafted the terms alleged to be unfair must show they are reasonable. A list of common terms likely to be seen as unfair is provided. (Employment terms are covered by other laws but also aim to prevent abuses due to inequality of contracting power) A company which sold a product like Windows 7/8/8.1 and then later said "we are changing our terms of support and forcing you to upgrade" (especially to a different product the user may not want, or a product that is maintained in a different way),would almost certainly be at substantial risk of falling foul of this. It wouldn't matter if it was done by not providing the support/patches as originally implied (by custom or normal expectation) or as agreed in an explicit statement of support life cycle, or by saying "we have the right under the contract to do this", or by forcing what is essentially a change of product to get the updates. It also wouldnt matter how big they are, nor whether or not the user had already agreed "because I felt I had no choice". The law is there specifically to protect against abuses like this, so it is drafted to catch companies who try to find "wriggle room". | There may be violations of consumer protection and/or advertising statutes here by the online store, but the common law position is that: The website's owner is making an invitation to treat Based on that, you are making an offer The contract comes into place when the website's owner accepts your offer. The time of contract formation is "when the parties give objective manifestation of an intent to form the contract." You would need to read the site very carefully, in particular their terms and conditions, acknowledgement page and/or email to see if they are actually accepting your offer or if there are conditions attached. If there is no clear, unconditional acceptance then there is no contract at that time; this applies even if you have paid for the goods. If this is the case (and I strongly suspect that it would be for most online stores), then their acceptance of your offer and the formation of the contract probably does not come into effect until they "give objective manifestation of an intent to form the contract" by shipping the goods. Up until that time there is no contract and their only obligation to you is to promptly refund your money. | A company can charge each of its customers a different price if it wishes. Providing this discrimination is not on the basis of a prohibited reason (race, sex etc.) this is not illegal. | I've had a good look at the Vagrancy Act, and I have to say that i can't find the text that you're looking for. It's possibly been repealed, in which case it's not, in fact, the law - even if it were, it is unlikely that this provision would have applied to most games, as it appears to be Games or pretended Games of Chance that it targets. | Is it discrimination? Yes, because discrimination is a broad term that covers any situation where someone might reserve something under specific criteria. In this case, it sounds like the restaurant reserves tables for people who will be eating. If you'e only having coffee, they only allow you in a certain section. Unless you live in some city with a very strange law that prevents discrimination based on what you plan to order, there is nothing illegal about doing that. Discriminating based on your order is not a protected class by the federal government. If you're trying to claim that you were discriminated against based on race, you have to actually prove that happened somehow. Based on your summary of the situation, it doesn't sound like that is what happened. Simply being of another race does not automatically qualify it as racial discrimination. As an example, finding proof might involve asking or looking around to see if "tables are for people ordering food only" is an established restaurant policy that applies to everyone. If there's a sign up somewhere, then it's clear they were just following a policy. |
Due Diligence: Habit forming medications What responsibility do patients have to make informed decisions? Opioids are known to be habit forming throughout history. Given the context of Purdue's Oxycontin. Let us assume this statement is true: Purdue Pharma still led healthcare providers to believe that the Opioid was a non-habit-forming solution to help patients manage their pain safely. Let us also assume that Oxycontin bottles are labeled: “WARNING: May be Habit Forming” “OxyContin is a mu-agonist with an abuse liability similar to morphine, and is a Schedule II controlled substance.” “Oxycodone products are common targets for both drug abusers and addicts.” “Patients should be advised that OxyContin is a potential drug of abuse. They should protect it from theft, and it should never be given to anyone other than the individual for whom it was prescribed.” “Physicians should be aware that psychological dependence may not be accompanied by concurrent tolerance and symptoms of physical dependence in all addicts. In addition, abuse of opioids can occur in the absence of true psychological dependence and is characterized by misuse for non-medical purposes.” Did patients have any responsibility to research / read labels and understand the risk associated with opiates? | The question of a patient's legal responsibility would arise under a negligence lawsuit, where the patient "should have known". The standard for determining what things a person "should have known" is fluid, but obviously you can start with "could have known". If a patient's can't know a fact, they cannot be said to have negligently contributed to the damage. Doctors are given these warnings, but patients are not, uniformly. It is therefore possible that a patient was never warned of the effects of an opioid prescription (I can personally attest to that lacuna in the system). Your assumption about the bottle being so labeled is only valid for the original supply bottles from which the pharmacist dispenses. However, there is also a rather compelling argument to the effect that no person in the US can in fact be unaware of the addiction risk of opioids. It is a defeasible argument, possibly applicable to a hypothetical person who has lived in complete isolation for decades. A patient is not required to undertake independent research in order to validate the science that underlies statutorily-mandated FDA approval or drugs, instead, the burden is assigned to the manufacturers and distributors (primarily doctors and pharmacists) to convey the relevant information. Thus HR 1026 would, if enacted, mandate a different warning. But the bill does not assert a lack of liability on either side, therefore the question reduces to the "simple" matter of determining if a person knew or should have known. | The most important consideration is whether you're giving advice "as" something special. An example would be claiming to be a medical doctor and advising people to do something clearly harmful such as "take 10 Tylenol and call me next week". In such an extreme case, there could be criminal charges. Less severe would be an accountant giving grossly wrong and incompetent tax advice to a client, in which case the accountant could be civilly liable. (For instance, telling a client "you don't have to declare royalties for textbook sales"). In such cases, a client depends on the professional to give competent advice, and you rely on him to work according to a certain professional standard of care. There is a difference between the standard of care that an ordinary "reasonable person" owes to any other person, and the standard of care owed by a professional in an area. What would be excusable bad advice that I might give on how to build a wall would be inexcusable if given by an engineer. The basic idea is that if you interact with a person (even indirectly, manufacturing something that a 3rd party buys), you have a certain duty to be cautious. If this is just an ordinary-person on ordinary-person interaction, then the parties (both parties) are expected to exhibit the degree of caution that a "reasonable person" would exhibit (attempts to pin down what a "reasonable person" would do have proven impossible, though juries always know subjectively what a reasonable person would do). However, your duty to not give bad advice is offset by the advice-taker's duty to not take bad advice – that is, if a reasonable person would know that taking 10 Tylenol is a bad idea (thus I, as a non-physician might have some duty to not give such stupid advice), then the person who stupidly took 10 Tylenol was contributorily negligent in taking the 10 Tylenol. As far as I can tell, if you do not represent yourself as a member of a technical guild (lawyer, doctor, accountant, many others) giving technical advice in that capacity, and you are not directly contracting with a person (i.e. they hire you to give them advice on how to keep your yard from falling over the cliff), then you can say stuff like "If X, then you should Y", and not have to pay if someone does that Y and they suffer a loss. | In the US, it depends on why you are doing this, and how you go about performing the operation. There are approved devices and procedures, and there is the other stuff. In an emergency that is life-threatening or threatens severe debilitation, it is permitted for a physician to try an extreme measure – if the state has a "Right to Try" law. Otherwise, a review and official approval by the relevant IRB is required. The devices are regulated by the FDA, but the FDA does not regulate the practice of medicine, so the feds don't have a say in whether a procedure is allowed. Nevertheless, use of unapproved devices can be taken to be evidence of failing to meet the required standard of care, in the case of a malpractice suit or punitive action by the state regulatory board. There is no specific law prohibiting removing lots of organs and replacing them with prostheses, though arguable what happened was that the brain was removed (it's not that a replacement shell was built around the person). Ordinarily, intentionally "killing" a person is illegal (except in case of sanctioned execution or self-defense). There is zero case law that would tell us whether removing a brain from a body "kills" the person. Most likely, there would be a prosecution for unlawfully causing a death, and either the legislature would tune up the law w.r.t. the definition of "causing death", or the courts would do so. | It means what it literally says, that safety and effectiveness have not been established in certain contexts. The rationale behind saying this is §201.57 of 21 CFR 201, a regulation that mandates giving warnings. It is permitted to use a device or prescribe a substance where it is not yet proven that it is effective or safe for that usage, but you must not imply that it is perfectly safe and effective in all contexts. This part of the federal regulations dictates language aimed at particular scientific uncertainties. Insofar as a patient is expected to give informed consent for a treatment, informing the patient that a treatment is to some extent unproven is an essential part of the information that must be given for informed consent. So you can interpret it as a flag to the patient (or the prescribing doctor) that there is greater risk. | If that person becomes incapacitated or is deemed unfit to make their own decisions, will I be required to be physically present (for example, to sign something) to make those decisions if called upon? While it is customary for someone making decisions as weighty as removal of life support, to come to the hospital or care facility in person and discuss the issues with treating physicians, it isn't required. When you are physically there it is easier for you to personally assess the patient's condition rather than just taking someone else's word for it, and you have more informal access to everything that is going on in terms of people coming in and out of the patient's room, providers you wouldn't have known to speak to initiating conversations with you (e.g. there is typically an ER nurse for each shift, several residents doing rounds checking on a patient, and often also an outside specialist doctor involved in the treatment team). It is also usually easy when you are physically in a hospital to locate someone knowledgable and familiar with the kinds of issues you are facing at the moment to provide spiritual and religious guidance if you feel this would help you make your decision, while your neighborhood clergy person may not have a good understanding of these issues since they don't come up as often for someone is doesn't frequently spend time around people being treated in hospitals or hospices. And, this kind of pastoral counseling requires not just religious knowledge but an understanding of the options that are being presented through the lens of what is religiously and morally important about the differences between the different options. When I was an attorney for a hospital handling these issues for the hospital, we would have been willing to work with an out of state medical power of attorney agent without their physical presence. But, the fact that this was deep in the Rocky Mountains far from other urban areas (i.e. Grand Junction, Colorado) may have influenced a willingness to be flexible since it would often take a lot of time and money for someone to arrive in person. Also, while the medical power of attorney gives a specific person authority to act, an advanced medical directive is simply a document that goes into a patient's medical record that advises treating providers of the patient's intent and doesn't actually need next of kin approval or a medical power of attorney agent's say so to implement, although better practice is to seek that consent first in case there are any reasons why that advanced medical directive might have been procured improperly from someone lacking capacity or subsequently revoked. There usually will be forms for a medical power of attorney agent to sign, not authorizing a particular medical procedure, but authorizing treatment in general and providing personal and financial information about the patient in connection with admitting that person. But, these days, hospitals are relatively comfortable with handling that paperwork via fax or scanned copies sent via email, and some of the more flexible hospitals will even accept photos of signed documents sent via text message. | In the United States, many jurisdictions have criminal offenses outlawing behavior that may include what you're describing here. In Ohio, for instance, disorderly conduct (R.C. 2917.11) includes "insulting, taunting, or challenging another, under circumstances in which that conduct is likely to provoke a violent response." In Indiana, there's the offense of provocation (IC 35-42-2-3), which is even broader and includes "recklessly, knowingly, or intentionally [engaging] in conduct that is likely to provoke a reasonable person to commit battery." It looks like this has been interpreted to include even actions that don't directly involve the provoked person, such as kissing another man's wife. Beyond the criminal offense, there are also jurisdictions that will permit a civil suit for damages resulting from the criminal act. There are also states where this could constitute intentional interference with business relations or intentional interference with an employment contract. In any of those cases, your co-workers could be looking at damages for lost wages, loss of reputation, etc. | It is difficult to keep track of the rapidly changing legal variables, but it would be illegal and unconstitutional for state police to set up an unauthorized stop-and-search checkpoint on the road ("due process" means "following the law"). As a prelude, there would have to be some higher authority that empowers them to do this. You would have to scrutinize the emergency powers legislation of every state to be certain, but no governor has the power to mandate blanket body searches in case of a medical emergency. (Martial law shifts enforcement of the law to the military, but doesn't generally create arbitrary decree-writing powers). The legal foundation of such searching would have to be a new law: then the question is what the law requires that could make on-the-road body searches constitutional. Since the right to be free of unreasonable searches is a fundamental constitutional right, this law would be reviewed under strict scrutiny. Searches "just for fun" will not pass such scrutiny, nor will "because it's an emergency" or "keep the public safe". Having the disease is not and cannot be a crime, so this law would have to be founded on a strict no-travel requirement. That brings the matter within the sphere of the "officer safety" exception in the case of an arrest. I'm not suggesting that an absolute travel ban would be upheld as constitutional in the US, but that is the kind of legal foundation that would be required for state police to force people to be Covid-searched. | Regular maintenance does not include repairs for being broken – I have a contract with a company that (for a monthly payment) provides regular maintenance on the furnace, which does not cover the situation where the motor wears out, or whatever. In the worst case scenario of an oil line breech, the tenant would not be liable for the tens of thousands of dollars of cleanup that would be required. Under Pennsylvania law, there is an implied warranty of habilitability, for example the landlord warrants that it doesn't rain inside the house, there is hot and cold running water, and so on. Safe heat is an example of something that is included in a place being habitable. This warranty is not waivable by lease provision (Fair v. Negley, 390 A.2d 240). However, the subjective recommendation of a repair guy has little legal cash value: what is needed is an arms-length evaluation of the safety and functionality of the system. If the recommendation is based on inefficient fuel use and long-term likelihood of eventual system failure, that is probably not sufficient to compel a repair. Excess CO on the other hand is a clear danger. The repairman should be able to at least explain the specifics of the improper setup and the consequences of doing nothing. Documentation of actions taken is a good idea. |
Does my brother have a legal right to my parents home? My brother has always lived with my parents in the family home. He is in his 50s and has never moved out on his own. Does he have a legal right to stay in or keep the house following the deaths of our parents? He has not been a carer for either of them despite continuing to live in the same household as them. | If the parents left the brother, let's call him Bob, full or partial ownership of the house in a will, or a long-term right of tenancy, then he has a right to live there. If they left no will, their property will be handled according to the local law on intestacy. The details vary from one Australian state to another, but if neither has a living spouse, their children will probably split the estate. This will probably include a share of the house, and so Bob will have a right to live there, unless a different division is made. Or the house could be sold and the proceeds split. Bob would not have a right to live there merely because he had been living there for some years, or even all his life. Nor would Bob have such a right if he had been caring for his parents, not for that reason alone. Everything depends on who winds up owning the house. Generally the owner or owners get to decide who may live in the house. A person could also be given or left a right of occupancy. A co-owner normally has a right to live in a house. But there is no automatic right of a child to live in his or her parents' house. | A tenant has a right to "live in a property that’s safe and in a good state of repair". There are additional regulations possibly applicable in your situation if this is a "house in multiple occupation", summarized here. "Hazards" are explained here. However, these rules pertain to the condition of the building, not other tenants (except that "overcrowding" is also a hazard). They also say you should "report anti-social behaviour to your local council". It is legal to rent a room in the UK to a person convicted of a violent crime, so it would also be legal to rent a room to a person who hasn't committed a crime (assuming he is legally in the UK). If the person did not engage in actual anti-social behavior towards you, there is nothing to report to the local council. The landlord has no affirmative duty to disclose such a fact, and it might be illegal to do so under the Data Protection Act, since this is "sensitive personal data". | You would check with the authorities in the state where your parents last lived. Actually, you can write to any congressperson, and they can pay attention to you or ignore you as they like. (This also applies to people who live in the US; if you think a representative other than your own will be more likely to follow your request, you can write to them instead.) The reason it's most common to write to your own representative is that they have a political motivation to consider your request (you are more likely to vote for them if they do what you ask). If you were to vote for a congressperson, that would be in the district where your parents lived (but that is governed by state law). | There's the question whether something is lost property or abandoned property. You'd be allowed to keep abandoned property, but keeping lost property without looking for the owner is in many places considered theft. A car on your land is quite likely abandoned by the last driver (people don't usually lose cars). But the question is whether it is abandoned by the owner; if the car looks like it has some value then it is unlikely to be abandoned by the owner and more likely that it has been stolen. I'd report the car to the police; then it's up to them to find the owner or not. If they can find him, and the car was not abandoned, but actually lost (unlikely) or stolen (more likely), you have the satisfaction of being an honest person helping either a very stupid car owner or a crime victim to get their property back. If they can't find him, usually the property will then belong to the finder. | This all depends upon where you are. I am a landlord and I am answering based upon the laws of the U.S. and the states that I operate in. First things first. You are not the property owner. While this does not limit the answer, it is a factor. You do not have the right to the property even if you have a key and the permission of the tenant. You are not the property owner, do not represent the property owner nor the tenant, and by contract do not have legal rights to the apartment. It does put you in a different situation. As a landlord, it is against the law for me to provide access to a tenants apartment to anyone without authorization. This, of course, precludes emergencies such as welfare checks. In the case of the police, a warrant is required or a form that the police fill out that allows the police to gain access. This would be used in cases such as when a spouse requires the recovery of personal property during a domestic dispute. A judges order is not always possible in these cases. These are often limited cases and the form absolves the landlord of liability even in cases where the police act incorrectly. So without a warrant or a form that certifies any lawful request, anyone including the landlord can be arrested for a crime. For your situation, a quick call to the landlord would have been appropriate. Without a warrant or certification, the police still had options including waiting for the person in question to either leave or return to the apartment or even request a warrant by phone. Often, the warrant, once signed by the judge, can be read over the phone. Any landlord should always have a paper copy provided within minutes since some cruisers will have a printer and can print the warrant. Your refusal appears to be legal. However, in the future, you can ask for a copy of the warrant that you provide the landlord. I do not wish to paint a negative image of the police who do the hard work that most people will never take on, they are after all heros, however, some do not know the law perfectly well especially tenant landlord law. As well, some will try and get away with skirting the law trying to get an important job done. It does happen. I hired a lawyer just last week for an illegal request unrelated to the question here. Addressing the OPs comment: Hello, I believe I misstated the situation a bit in that the locked door in question was for the apartment building and not a tenet's apartment itself. I have edited my question. Does this change anything? Technically, this does not change much of anything, however, the request by the police can be seen as a reasonable one. They just may want to talk to the individual which is reasonable. In this case, I might have let them in if the access I was giving them was to a common space such as a hallway. In this case, the outer door locks are only to keep Intruders from entering the building and not meant to restrict access for valid purposes. Are you in trouble? I would say no. If anyone asks, you can give reasonable arguments for your situation. However, the next time, consider what I have written here. The police have a tough enough time doing their jobs. If you can help and stay within the proper boundaries of what the law allows, that would be best. | Charlie is not a party to the contract between Alice and Bob Alice and Charlie have no contractural relationship and Alice cannot require him to do anything nor is he liable to Alice in any way. Alice’s issue is with Bob who has clearly breached his contract. Alice can sue Bob for damages and may be able to end the lease. There is no trespass because Charlie is there with the permission of the leaseholder. From Charlie’s position there is no reason to believe that Bob does not have the authority to give this permission so Charlie is not in breach of the law. The police will see this as a civil matter and won’t intervene. | The Immigration Act 2016 introduced the so-called 'right to rent' provisions under which a landlord can be prosecuted for renting accommodation to someone who is not legally in the UK. Everyone in the UK, Brits included, is subject to the Act. This gives the landlord the right to examine your work permit and to see if your visa is valid. The landlord will make a copy of the information. This makes the landlord a data controller which imposes restrictions on how the information can be used. Because this became controversial, the Information Commissioner published a brochure on the things a landlord can do with your data. All things considered and based upon what you wrote, if the landlord did not get your permission to use the data, then it's likely he is in breach. But this does not mean it's actionable or that it would be advisable to make a formal complaint to the Commissioner. If you want to pursue it, you can use the Commissioner's "Report a Concern" page as a starting point. Alternatively, you can lodge a formal complaint with your landlord and he will have to respond to it. What does the law say? The act giving the landlord the right to access your data is in the 2016 act linked above. Everything else is in the Data Protection Act 1998. The ILPA Information Sheet is at "Right to Rent". "The information sheet was updated on 01 November 2016 to take account of the second commencement order issued by the government, on 31 October 2016, bringing further provisions into force." The information sheet is recommended reading for anyone in the UK on a work permit. Disclaimer: I'm a member. | The actual law in BC, the Residential Tenancy Act, guaranteed a tenant's rights to the rental unit and the common areas, and restricts the landlord's right to enter the rental unit. Common areas are distinct from the rental unit. A common areas is "any part of residential property the use of which is shared by tenants, or by a landlord and one or more tenants", and a rental unit is a "living accommodation rented or intended to be rented to a tenant". In this case, that would be the room. There is no restriction at all on landlord's access to common areas, and there is no requirement that landlord access to common areas be for specific purposes. Access to the rental unit, on the other hand, must be for a reasonable purpose. |
Without reasonable suspicion do you have more rights than the police? Meet Bob. He is standing on the street corner minding his own business being perfectly normal and not giving any cause for suspicion of criminality. Charlie the police officer comes along and stands next to him on the same corner. If Bob approaches the officer and asks his name and warrant number must he give it to Bob? On the other hand if Charlie were to demand Bob's identification details Bob, as an innocent person, would be perfectly entitled to refuse it with no comment. Is this accurate? | Police are not required to tell you their name From this response to a FOI request: There is no specific written requirement for Police Officers to verbally give their name and/or number to a member of the public if verbally requested to do so. However Police Officers are required to comply with the Police Code of Ethics, which is overseen and published by the College of Policing. However, it goes on to say that, subject to certain exemptions, uniformed police must wear a name badge and display their number on their epaulettes. | Yes and no. There are numerous cases where criminals, upon breaking in to somewhere, find evidence of a worse crime and notify authorities. This will provide reasonable suspicion enough for entering the scene. Generally, in testimony, Statements against Interest are more believable because a burgler wouldn't admit to breaking and entering if he had a way to explain why he was there in the first place. (Example: Alice breaks into a Warehouse and sees a mutilated body and blood everywhere. Alice immediately stops her theiving ways and calls 911 to let them know about the scene. Whether or not Alice stays, a dead body is enough probable cause to secure the crime scene without warrant. Its in Alice's interests to stay and help as there is trace of her at the scene and she would be pegged as a suspected murderer. If she's picked up and admits to calling the cops, it's good, but staying and helping out after the call will likely get her off on the charges related to the murder.). It could also work if they are persuing one crime and discover evidence of a second unrelated crime. (i.e. Alice robs the factory and gets away. The Factory Foreman calls the cops to investigate the crime scene, which at this point, does not need a warrant. While investigating, the Cops find security footage that Bob, the night guard, killed Chuck, a late night worker, removed his body, and cleaned the scene, all before Alice broke into the factory. The outcome of the case being made against Alice does not affect their need to prosecute Bob, as they obtained that evidence while looking for Alice in a valid investigation, not Bob, thus it is legal). Under these situations a crime that leads to a separate valid crime involving a different party is admissible. There are two possible reasons that the attorney might think this: Fruit of the Poisonous Tree: This is the obvious element... the kids committed a crime with the hopes that the cops would use the evidence found by them in their commission of a crime to get the real bad guys. The attorney parent thinks this is stupid because the kids broke in specifically to do this and thus any evidence is now tossed out of court. This isn't usually the case in how this scenario will play. Generally the cops are more than happy to look at evidence obtained by criminals that points to another crime. In fact, this is how a lot of gang enforcement units and drug enforcement units operate... pick up a small fish and cut a deal for evidence against a bigger fish (turning state's in the criminal lingo, as the witness is becoming State's Evidence to another crime). As long as it's given to the cops as part of legitament evidence seeking, the cops can follow the leads where ever they... er... lead... Chain of Custody: This is probably, if properly thinking, what the attorney parent is thinking that's a bit more probable. Lets say these kids found a dead body with a sword in it and take the sword to the police... this could get dicey as the kids have contaminated the evidence in possible ways that the killer's lawyer could get thrown out. One thing CSI doesn't always show (though there are a few episodes where it comes up, but not many) is that when something is taken in as evidence, it is carefully documented, sealed, and tagged with a check in/check out list. Every time the seal is broken, the person breaking the seal notes the time, date, and reason and when does, reseals it with a new seal, and signs the time and date of the seal again. This is so at trial, the attorneys know exactly who opened up the evidence, what they did, and what possible contaminants were introduced. You even have to sign into a crime scene before you go up to the yellow tape. A good defense lawyer would call into question any evidence from anything the kids handled to get the evidence tossed (i.e. Your honor, these Meddling Kids handled the sword without following the chain of evidence. They even let their dog handle it. They had already harrassed my client earlier today by insunuating that he was involved with a hoaxed paranormal activity to scare people away from the factory. Since they claim they found the sword, but did document it at the scene, we don't know anything about it prior to the police's chain of custody. I motion that the evidence be dismissed.) If this is successful, anything from the sword is now no longer admissible as if the sword had never been found (including blood of the victim on the blade and finger prints of the suspect on the hilt)... in effect the evidence was prossessed as best the police could but the veracity of the story of it's discovery is too questionable to be considered. The defense does not have to be right, he just has to show there could be another explanation for the sword and the evidence linking his client to the crime committed by it. In short, without specific details, the attorney parent could be right or could be wrong, or more humorously, right, but for the wrong reasons. Edit: U.S. only. See other answers for other jurisdictions. | In general, people have less expectation of privacy in cars than in their homes. To challenge a search and/or seizure under the Fourth Amendment, a person must have standing - the right to sue (that is, you must have had a reasonable expectation of privacy in the place where the search happened; if you didn't, no standing - can't claim your privacy was violated if you had no privacy). The US Circuit Courts are split on the issue of unauthorized rental drivers and whether they have the same reasonable expectation of privacy as the authorized driver of a rental car would have. Some Circuits allow the unauthorized driver to challenge a car search if the authorized driver gave them permission. Some Circuits look only at the agreement and if the driver isn't authorized on that, they're out of luck. The 6th Circuit is more case-by-case, with a presumption that driver can't challenge the search that can be overcome based on the facts. (All this info from US v. Haywood, 324 F.3d 514) There's a current case before the Supreme Court (argued January 9, 2018), Byrd v. US, on this very issue. This SCOTUSblog page has a lot of information on the case. Edited to add: Texas is in the Fifth Circuit, which follows the rule that unauthorized drivers don't have standing to challenge a search/seizure even with the authorized driver's permission to drive the car; unauthorized drivers of rental cars don't have a reasonable expectation of privacy because they lack a possessory interest in the car and/or they're violating the rental agreement. Basically, even though it seems the cops' stop of the car would've violated the Fourth Amendment if he were the authorized driver, since this happened in Texas, he's not going to be able to challenge the stop. IMO, this is incredibly unjust especially when the cops admitted there was no probable cause, so hopefully the Supreme Court makes this rule obsolete and allows unauthorized drivers to exercise their Fourth Amendment rights. Some law review articles on the topic of unauthorized rental drivers: "Hertz and the Fourth Amendment" "Resolving a Three-Way Circuit Split" | From a US perspective, in a word, "no". Firstly, "presumption of innocence" is in a trial, not in police interactions. Being arrested does not violate the presumption of innocence. Police do not need any reason to interact with you or ask you questions. Police can arrest you if they have probable cause to suspect you have committed a crime, but this is not always necessary. More on this later(in the fourth section). Secondly, I wouldn't describe requesting to see your ticket, or any document as a "violent communication", in general. It may be rude or insulting, but not violent. (Also "violent communication" is not a legal term. The closest legal terms, verbal assault and threatening communication, are also not this.) More over, there is no indication of am implication of lying in this request. Thirdly, there are many situations in which possessing a document or credential is not sufficient; one must legally display or present them upon request. For example, multiple occupational licenses such as liquor licenses and barber/cosmetology licenses require that the licenses be prominently displayed; whereas, in California at least, a vehicle driver on a public road must not only possess their driver's license and proof of insurance, they must produce them upon the request of any law enforcement officer (Source: https://www.dmv.ca.gov/portal/dmv/detail/pubs/brochures/fast_facts/ffvr18). Fourthly, there are situations in which you can be legally searched and questioned without reasonable suspicion. Examples of this include boarder searches and sobriety checkpoints. Sources: (US Supreme Court rulings): https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuerte; https://en.wikipedia.org/wiki/Michigan_Department_of_State_Police_v._Sitz A note on sources: bdb484 and I have opposing court case sources. My sources have binding precedent over all courts in the US, save the US Supreme Court, whereas theirs don't have any binding precedent, but are more directly on-topic. | The police officers themselves are covered by Qualified Immunity - to put it briefly, a government official acting in their official capacity in a discretionary act (as in, they have some discretion in whether/how they carry out the act) is immune from suit so long as they pay reasonable deference to relevant law. In the case of the police, so long as the search or seizure itself is reasonable (either because there is a warrant, or because they had probable cause), they can take appropriately destructive measures to carry out their duty. Even if the search or seizure is later found to have been unreasonable, an officer may still have Qualified Immunity unless their action violated "clearly established statutory or constitutional rights of which reasonable person would have known" (Harlow v. Fitzgerald). However, a search/seizure doesn't give the police license for arbitrary destruction, whatever they do has to be reasonably pursuant to the legal search/seizure. For example, if a suspect is barricaded in a house with a gun, they can knock down doors, windows and walls to apprehend them. On the other hand, that does not mean the officers can then break open safes to try and find evidence - once their probable cause for the entry is fulfilled (apprehending the suspect), they need to get a warrant to do more than a plain sight search of the house. Warrants will specify what items are being searched for, so even with a warrant the police have to take reasonable measures to carry it out - an example of an unreasonable measure would be to tear into walls in order to try and find a stolen bicycle. On the other hand, tearing into walls could be justified if their warrant included searching for drugs from a dealer, where it is not uncommon to hide them in the walls. States and the Federal Government enjoy Sovereign Immunity from suits in most cases. There are some exceptions, but none would apply in this case so long as the general policy of the police department was not illegal or unconstitutional. However, county and city governments do not enjoy Sovereign Immunity and state governments and the Federal Government often allow suits against them for negligence from their actors, so someone injured by unreasonable police action can usually try to recover damages from the officer's department. | We need to assume that the stop was legal (not a high hurdle to clear), that is, there was some reason to stop you. Even so, following Utah v. Strieff, police don't actually have to have a reasonable suspicion to stop you and if in the course of an ID check they discover that you have a warrant out for your arrest, the arrest is still legal. So if the police stop you, RCW 46.61.020(1) says: It is unlawful for any person while operating or in charge of any vehicle to refuse when requested by a police officer to give his or her name and address and the name and address of the owner of such vehicle, or for such person to give a false name and address, and it is likewise unlawful for any such person to refuse or neglect to stop when signaled to stop by any police officer or to refuse upon demand of such police officer to produce his or her certificate of license registration of such vehicle, his or her insurance identification card, or his or her vehicle driver's license or to refuse to permit such officer to take any such license, card, or certificate for the purpose of examination thereof or to refuse to permit the examination of any equipment of such vehicle or the weighing of such vehicle or to refuse or neglect to produce the certificate of license registration of such vehicle, insurance card, or his or her vehicle driver's license when requested by any court. Any police officer shall on request produce evidence of his or her authorization as such. There is no law that says "you have to provide ID only if accused of a crime", or "police can pull you over only if you are suspected of a crime". Various traffic infractions will get you pulled over but are not crimes; random sobriety checks are legal. However, note that the requirement to provide ID applies to the operator. There is no law requiring citizens to carry identification papers (but there is a law requiring a vehicle operator to carry a specific form of ID). In some states there are "stop and identify" laws which allow police to demand ID from a person suspected of a crime, but Washington does not have such a law. | There are two questions here: Is it really the police, or someone pretending to be the police in order to stage a home invasion? If it is the police they will be wearing uniforms and showing you their badges. I don't know how common it is for criminals to impersonate police officers. Do they have a valid search warrant? Once you have established that they really are police your best course is to stand back and let them in. Arguing about search warrants and "fruit of the poisoned tree" is a job for a lawyer later on. One option might be to quickly dial 911, put the phone down but still listening, and then open the door while saying "are you police, can I see your badge?". If they are police then no problem. If they turn out to be imposters then the 911 dispatcher should be able to figure it out and send the real police around. | An officer is allowed to pull you over for speeding and then decline to give you a ticket for speeding. So the lack of a ticket has nothing to do with it (unless you actually weren't speeding, not even 1 MPH over.) Simply having past felonies, however, is not a reason for an officer to be able to search the car. Without a warrant, he'd need probable cause, consent, or some other exception to the warrant requirement. It's impossible for me to say what happened here. Maybe your husband had an outstanding arrest warrant? Maybe the officer saw the gun from outside the car? Maybe one of you said "OK" when he asked to search the car? Or maybe the search was illegal after all? |
Contracting with a prototype maker in China from the USA I have a product that I want to build a prototype for. How do I protect myself if I am contracting a company in China to develop the product? I am in the US. How do I prevent them from stealing my idea, which will be in patent pending state? | Protect against what? A US patent would, theoretically, let you try to stop anyone in the US from importing a product that infringes one of its claims. To try to stop manufacturer in an other location from producing a product and selling it other than in the US you either need a patent in the location if manufacture or or selling. Of course you can also try to accomplish this by contract with the manufacturer. They may honor a contract and to not sell other than to you. But if are wildly successful you won’t be able to stop a different manufacturer in China, Vietnam or anywhere else. One bit of advice might be to get good IP coverage for anything made, sold, offered for sale, imported or used in the US via US patents and be content with wild success in one of the largest markets protectable under one patent. Some people advocate breaking your design down into interconnectable components and have different makers in different areas make each with final assembly in the US. Others say just go fast and make money while you can. Also you can license to a big company with some clout and money for attorneys. You get much less per unit but push many costs and hassles to them. | What are our possibilities here? You could be sued for damages in Mexico, the country of origin of the copyright or any of the other signatories of the Berne Convention. You could also be charged with a criminal offence but that is less likely. how much can we get away with? Not a legal question. What you are proposing is illegal - how likely your getaway plan is to work is not for me to say. Is there any advantage on us being on México? No Is there any advantage on picking any either Dragon Ball or League of legends because of the country they are in? No Can they stop us from doing it? Yes | According to CENDI, yes the US government is able to claim copyright on works internationally. The law in question which makes US government works public domain in the US (17 U.S. Code § 105) only does so within the confines of US copyright. Since copyright protection is on a per-country basis, there's no reason that the US government couldn't assert IP rights under foreign copyright law (though I didn't go looking for an example). While the Berne Convention generally requires countries to provide foreign works the same protection as domestic works, I can think of two general reasons why US government works wouldn't fall under copyright protection in some countries: The country simply doesn't apply copyright protection to any government works (don't know how common this is). The country applies the rule of the shorter term. If they do, they aren't required to provide a longer term of protection than the country of origin does (which is nil in this case). | Licencing agreements The company producing these has successfully negotiated a licencing agreement with the IP holder to use the IP. These are extremely common. Subcontracting They have actually been commissioned by the IP holder to make these things for the IP holder e.g. for the IP holder to sell in their own outlets. As part of that agreement, they are also allowed to sell on their own behalf. Piracy They are breaking the law and hope they will be undetected, not worth prosecuting or operate out of pirate jurisdictions which will not enforce foreign judgements. | Intellectual property is something unique that you physically create. An idea alone is not intellectual property. For example, an idea for a book doesn’t count, but the words you’ve written do (from the UK government website). This is a universal principle: having ideas is not protectable (are you quite sure that nobody else has had the same idea, or ever will?) So unless you have put some work into producing a specific implementation, your idea can be used by anybody who thinks of it. | If you want to implement this or a similar feature, you'd look up the patents, and either get a license (unlikely that Microsoft would give you a license), or figure out how to implement the feature without violating the patent. An example how a company I worked for worked around a patent: In order to compress data. in the best possible way, the idea was to try eight different methods to compress the data and pick the best compressed data. There was a patent for that (even though to me, this was quite obvious). Workaround: The software tried eight different methods and reported a number from 1 to 8 indicating which method gave the best result (unlike the patent, which actually gave the best result). Then the data was compressed once using the best method. No patent violation. You'd probably want a patent lawyer to check if your idea how to implement the feature violates the patent or not, and how to get around it. It takes a specific mindset that you and I don't have. And even good lawyers who are not patent lawyers might not be able to help you there. Commercial vs. open source/free software makes no difference, except that Microsoft might not bother suing you if there is no money to be made. Unless the intent is to prevent you from implementing the feature, in which case the would sue companies without money as well. | It is likely that the law applying will be both that of the USA and your country. If you went to court this would be one of the things you argued over. For example, Australian Consumer Law applies to any goods or services sold to a customer in Australia irrespective of where the vendor is located. Your jurisdiction may have similar laws. At first blush you must comply with the term of the contract preventing reverse engineering. They would be within their rights to terminate the licence if you don't. However, they probably have an obligation under your equivalent to the ACL to supply a product that: is merchantable is fit for purpose does what it says it will do If it doesn't then you have a right to terminate and get your money back, sue for damages and your country's government may prosecute. | A basic rule of trademark law is that a trademark is protected only for use in the same industry, or in regard to the same general sort of thing. "Maxwell House" for example, is the name of a brand of Coffee, and no doubt a trademark. If A business used it as the name of a brand of mobile home, it would not infringe the mark of the coffee brand. "Java" as a term for coffee , has been slang for any and all coffee at least as far back as WWII. I doubt that it is a currently active trademark in any case. It is, however, the name of a currently active programming language. Calling a new computer technology "Java" would probably infringe that (although the makers of javascript, a quite different computer language, seem to have gotten away with it). But it is hard to see how a realty company would so infringe. Of course there might be details which would cause this name to be infringing in fact, that I have no way of knowing. You could play safe with Sumatra Realty instead. Evin a quickly dismissed suit for trademark infringement could cost a startup time and money that might be a fatal handicap. |
What is the status of songs that glorify illegal activity in different countries? If I understand correctly, freedom of speech does not, in many countries, include speech that glorifies illegal activity. What is the legal status in such countries of songs like Convoy, which do that? Convoy, for example, refers to speeding ("we crashed the gate doin' 98 [miles per hour, at a time when 55 MPH was the national speed limit]"; "Well, we rolled up Interstate 44 like a rocket sled on rails"; a rocket sled on rails goes faster than 55 MPH, and the simile doesn't make sense at normal speeds), evading police (evading police is basically the theme of the entire song; you can't really quote a short section that specifically mentions), failure to keep mandated records ("We tore up all of our swindle sheets, And left 'em settin' on the scales"), violation of radio regulations (use of CB radio to coordinate illegal activity is illegal, and is a separate offense from the main illegal act; also, a two-way conversation between Rubber Duck in New Jersey and Pig Pen in Nebraska would almost certainly require a linear unless skip conditions were perfect, which is unlikely considering that the song was published in 1975 in the solar minimum between cycles 20 and 21 ), and probably other crimes that I missed. What about ones like Four Wheel Drive, where illegal activity is also glorified initially (evading police is the main thing here, too; "Well, the chase was on, but I had the edge with a rig that'll never fail; got a CJ-5 with a four wheel drive with Smokey on my tail"), but end with consequences for the illegal act ("Got a CJ-5 with a four-wheel drive sittin' out back of the jail")? Are there any countries where my question would be illegal to write? | What is the status of songs that glorify illegal activity in different countries? germany Depends on the crime and the lyrics. For historical reasons, glorifying genocide is banned. Calling for crimes to be committed against individuals is banned. More generic 'gangster rap' pretending to a criminal lifestyle is allowed. The exact dividing line between the two comes out in court precedents, which weigh the freedom of expression against the freedom from insults and criminal threats. Are there any countries where my question would be illegal to write? Sure. Consider North Korea, where those lyrics would be evidence of decadent Western speech patterns and get punished by two years to life (or more, if the police has a quota to fill). | It isn't clear that the example you give is illegal police action, but let's assume that it is for the sake of this question, since it doesn't affect the analysis. If possession is not compelled, then it is voluntary. | united-states Speed limits can be enforced by any means (except photo-radar) in most U.S. jurisdictions without notice that it is being used. Those laws are close to being uniform in the U.S. due to federal coordination on federally funded roads, even though state and local laws are what governs them directly. Some U.S. jurisdictions prohibit the issuance of photo-radar speeding tickets without notice before entering the photo-radar picture taking zone. I'd have to research further to see if New York City does. The purpose of the language on the sign is to make drivers more fearful of being caught in circumstances where they don't see someone trying to enforce the law, not to have greater legal effect. | "Public space" is not a relevant criteria when considering trespass or other crimes/torts against property. The relevant criteria is who owns it and what they allow you to do on it. All land in the USA is owned by someone. That someone may be a government; that does not make it a public space - Camp David is owned by the US government; it is certainly not public. The owner of the land can decide (subject to the law) who has access to their land and in what circumstances. If they erect a fence then they are saying "You cannot access my land here" - if you ignore this then you are trespassing. This is true even if there are legitimate ways to access the land i.e. there is a place where there isn't a fence; to avoid trespass you would have to access the land from there. If you think of this in terms of a public building like a courthouse you are free to enter through the unlocked front doors but not by climbing through a window. The trespass is in the act of crossing the fence - that is the act that you have been implicitly denied permission to do. Being on one side or the other is not trespass. For the specific image that you show it is quite likely that those roads are owned by different people - the highway is probably owned by the state while the cul-de-sac is a local government road. | 2201.4 Upon a roadway so designated for one-way traffic, a vehicle shall be driven only in the direction designated at all or such times as shall be indicated by official traffic control devices. I'm failing to see the "... except when pulling over for the police" subclause. Equally there is no "... unless you think you should" subclause. If you choose to have a hearing the evidence will show unambiguously that you drove the wrong way in a one way street and you will testify as to your reasons for doing so. For you to avoid the violation you would need to convince the examiner that a) you are telling the truth and b) that your mindset is in any way relevant. Unless the officer clearly directed you to pull into that spot, the decision to do so appears to be yours. I'd pay the fine if it was me. | In the United States, you can always choose to (try to) flee police. If the police subsequently assert that they tried to detain you, then they can choose to charge you with a number of crimes (which vary by jurisdiction). The assertion that you did not (or could not) in fact hear or perceive a lawful order to stop is a defense that you could raise in response to such charges. It is up to the triers of fact to determine whether, given the specifics of the case, they accept that defense. | It might be illegal, depending on where you are. If it is known to the person who owns the vehicle occupying your space prior to doing so that wheelclamping may be the result, then the common law doctrine of volenti non fit injuria ("to a willing party, harm is not done") would lead to a conclusion that one who knowingly places themselves in a situation where harm may befall them is not entitled to bring a claim of tort against the other party (in the United States assumption of risk is a similar doctrine, but doesn't apply here because wheelclamping is an intentional act). In your situation, this means that the owner occupying your space cannot bring a case in tort against you. While it is generally applied to harm to people, there is precedent (albeit in British case law) for the doctrine to be applied to vehicles, and specifically, to the situation you describe - see Arthur v Anker and Vine v London Borough of Waltham Forest. While cases from other jurisdictions are not binding, I have not been able to find any similar cases in the United States, and so it is possible that such cases will be persuasive. Note that this is highly jurisdiction-specific, and there may be laws in your state that make it unlawful - at least one high-profile case involving a McDonalds and its parking lot operator cites California law authorising only law enforcement to impound vehicles, and considering wheelclamping such an act. However, I have not been able to find the record of a judgement on this matter. It is also likely that if the payment you request is excessive, the owner would be able to seek relief, in the form of reducing the payment owed to a reasonable amount. However, if the parking space was not marked in some way to signal that it was reserved for use, then the owner of the vehicle may be entitled to seek injunctive relief and damages from a court. This would be on the basis of, if you only wheelclamped the car and declined to remove the wheelclamp upon the owner's request, the tort of detinue. But, if you attempted to request payment from them, then as Dale mentioned in his answer, you have committed extortion (wheelclamping is actually listed as a crime of extortion). | Like many US legal questions, there is a Congressional Research Service report about this. It is not generally a violation of US law to do things in another country where the only connection with the US is that the offender is a US citizen. However, there are a number of general situations where the US has jurisdiction over federal crimes if either the victim or offender is a US citizen: if a place isn't within the jurisdiction of any country (e.g. Antarctica); a place used by a US government entity (like an embassy or airbase); crimes by American soldiers and those employed by or accompanying the military; etc. These are considered to be within the special maritime and territorial jurisdiction of the US. Other laws apply if they say so. For instance, any US national committing war crimes inside or outside the US can be punished under US law; ditto for treason. The Foreign Corrupt Practices Act makes it illegal for a US national to bribe a foreign official anywhere outside the US for business reasons (if it's inside the US, there are more requirements). For instance, you aren't allowed to pay kickbacks to a foreign government's acquisition officer to buy your product. The CRS report has more (it doesn't include the FCPA, but that appears to be an oversight). Note that extraterritorial jurisdiction doesn't just apply if the person is a US national. US laws can also confer it if the victim is a US national, if the offense has a significant US component, if it's directed towards the US, if it's in violation of international law and the offender later turns up in the US, etc. For your scenarios: Dual citizenship doesn't matter. A US citizen is a US citizen, and is required to obey all laws that apply to US citizens, unless those laws explicitly exempt dual citizens. A dual citizen isn't treated differently by the government; as far as the US government is concerned, their US citizenship is all that matters (except for certain specific purposes like security clearances). In Kawakita v. United States, a US-Japanese dual citizen was convicted of treason against the US for aiding Japan in WWII. Depends. Plenty of these laws have no requirement that anything related to the crime actually happen in the US; for sex tourism, the subsection about traveling in foreign commerce for the purposes of engaging in illicit sexual conduct is followed by a subsection about engaging in illicit sexual conduct in foreign places. "Travel with the purposes of X" or "with intent to X" means you must have intended to do X at the time you traveled, but most extraterritorial laws don't control travel with intent to X (they cover X directly). Depends on the law. Some laws (like child sex tourism) apply to any permanent resident of the US as well as any citizen. Some apply to anyone, because they're based on a conspiracy started in the US. Others apply just to US nationals; a noncitizen isn't bound by them (for instance, no one but a US national can be charged with treason against the US, for obvious reasons). Still others apply to anyone who later turns up in the US, even if that is literally the only connection between the US and the offense (this is basically reserved for crimes against international law, like genocide). |
How can a VAT-exempt individual avoid paying VAT on purchases that encompass VAT in the price? Some individuals, for example first time visitors to the UK are not liable to pay VAT. If they seek legal advice they may not be charged VAT, suggesting that they are not legally required to pay it, nor the vendors of goods or services to charge it. How can non-VAT-liable customers avoid paying, or reclaim, VAT, on other (e.g. retail?) purchases? | With an exception for non-EU visitors to Northern Ireland, they can't since 1 January 2021 following the withdrawal of the relevant concessions and schemes. The H.M. Revenue and Customs Brief 21... ..confirms the withdrawal of “airside” tax-free shopping in the UK and the withdrawal of the VAT Retail Export Scheme (VAT RES) from Great Britain (England, Scotland and Wales) when the Transition Period comes to an end on 31 December 2020. Tax free shopping (extra statutory concession 9.1): The tax-free shopping extra statutory concession (ESC 9.1) is published in VAT Notice 48. It allows retailers of goods sold in ports and airports to zero-rate sales to passengers departing for non-EU destinations. ESC 9.1 allows the retailer to be regarded as exporters of those goods and consequently zero rate the supply for VAT purposes. This concession will be withdrawn with effect from 1 January 2021 throughout the UK. VAT Retail Export Scheme (VAT RES): VAT RES allows non-EU visitors to the EU to recover the VAT on purchases they make on the high street which they take home with them in their luggage. This scheme will be withdrawn in Great Britain. Retailers in Northern Ireland, including those at ports or airports, will continue to be able to offer VAT RES to non-EU visitors to Northern Ireland, under the terms of the Northern Ireland Protocol. | If i have am served a claim form by the claimant, can I travel overseas? Yes Also, if I am overseas and receive the claim form whilst overseas, can I ignore it if I am not a citizen of the country which the claimant is from? You can always ignore a civil summons - the likely effect is that judgement will be entered against you and the plaintiff can then take further action to enforce the judgement. This can include having your property seized, garnisheeing your bank accounts or wages, or requiring you to attend court - failure to answer this summons is contempt and can lead to your arrest. A judgement in a UK court can, subject to treaties, be enforced in foreign jurisdictions under the relevant local law. | are they legally allowed to make me to pay for it now? Unfortunately, yes. Contract law entitles them to charge you that amount only because --as it appears from your inquiry-- you signed the contract with (or despite) your awareness of that clause. Perhaps from other terms in your contract you might have the possibility to overcome that liability. For instance, apropos of the fact that you possessed the requisite knowledge beforehand, whether the company intentionally misled you into thinking that you would gain any valuable knowledge from the training (other than the very particular way the company wants certain tasks to be performed). However, that is hard to assess without knowing more details of your situation. | They must give you a refund By saying they don't give refunds that are required by law they are engaging in misleading and deceptive conduct which will expose them to some serious fines. Report them to the relevant Italian authority. Presumably, you paid for this service with a credit/debit card. Contact your card provider and dispute the transaction - they will put the money back in your account and that will probably the last you hear of this company. | Typically it works like this: Sales Tax: Owed in the state that the sale is made (in your case, New York). This is difficult in the internet age with businesses operated with no physical presence in a state. Technically sales (and local taxes) are due depending on where the item that was sold is delivered, so if you shipped an item made in Texas to New York, New York sales taxes would be due on that item. These taxes would be paid to the state of New York. Same for all 50 states. This is a huge burden on small businesses and is not usually enforced. Most small businesses only collect sales tax on items sold to the state that the business is operating from (in your example, you would only collect Texas state sales tax). Income Tax: This is the corporate tax levied by the state that the business is operating in, in this case it would be Texas. Since Texas does not have a state income tax, there would be no income tax. However Texas does have a Franchise Tax that would be due (this is due from all business organized or operating in Texas) The state that the business is registered in may have its own taxes which would be on the income of the business and would be specific to the state that the business is registered in. These can also be in the form of registration fees, annual fees, franchise fees, etc. | You can refuse to pay. The doctor can either accept your refusal or pursue the debt in court. If he pursues the debt you will probably lose. The Common Law position Your contract with the doctor was for him to do whatever he did and you to pay for it. Your contract with your insurer is for you to pay the premium and them to reimburse you for whatever they cover. The fundamental question is why you were taking the doctor's (via his secretary) advice on your contract with your insurer? The advice was wrong, however, it is difficult to see that there is a case for negligent misstatement; you would have difficulty showing there was a duty of care and even if you did showing what damage flowed from it since it is quite likely that you would have had the procedure notwithstanding the absence of cover, unless it was purely cosmetic. The Consumer Law position California probably has consumer protection laws regarding misleading and deceptive conduct - I have no idea what they are. If this is so then your doctor's statement was misleading - consequences may flow from this. | No, they are not exempt Consumer protection laws (in general) apply to anyone doing business with consumers in that jurisdiction. You need to follow that law and apply to the company for a refund in compliance with the law. If they refuse, you can report them to the German regulator who may, or may not, take action against them. If you paid with a credit card, PayPal etc., once the company has broken the law, you can apply to them for a reversal of the charge. Similarly, most online platforms like eBay or Amazon will reverse the charge if you used them. | There is a legal dictum, de minimis non curat lex, which might lead to an exasperated court official refusing to issue your lawsuit (with or without providing the $1 out of his own pocket to save everybody's time); I recommend you look it up. But there is no official term for what you suggest, although many lawyers might off the record provide colourful descriptions. If you wish to waste your money on such a claim, then obviously in your view it is worth pursuing. Clients often say "the principle is more important than the money", though they say so more often before they receive the bills than after. |
Can a client claim intellectual property rights for a layout that address the visually-impaired? We have a design that places four, global utility links at the corners of the screen (Settings, Menu, Home, Back.) The idea being that visually impaired users can find these buttons by referring to their physical corner locations. Can a client claim that this technique or strategy as intellectual property (being their own original, proprietary design)? This is to settle a debate here in the office. | Generally, this question is not a singular inquiry as its wording may suggest on its face. What typically tends to come up as the subject of dispute is rooted in the urban legend that one cannot obtain a patent (utility) on software. This is substantially incorrect, and any patent attorney asserting to the veracity of this makes a substantially false conclusory statement of law knowingly and willfully controverting the actual state of law in, at least, all Western jurisdictions as it omits to assert to the fact that one is not barred to obtain a patent on any system that comprises of non-obvious software, and hardware to run on is entitled to a patent — except in the U.S. where one must also comply with the Alice decision requiring that at least one hardware component in addition to the hardware of a generic computer be necessary for the utility of the system. However, in the U.S., one may obtain a software-centered patent through a (i) method or (ii) a computer program product in addition to (iii) systems or apparatuses which are available avenues for patents everywhere else. When disputes around IP and software come up, this is typically at the crux of the debate: May one obtain a software patent? The answer is: One is not barred merely because the non-obvious aspect of an invention is software. For example, if one uses hardware that are prior art, in fact, patented to someone else, but by the use of software a system, method and/or computer program product achieves a different objective (since utility patents, axiomatically, must have a utility objective) one may obtain a patent, and a layman may very well consider their invention of the system as that particular component that appears to them as having required any inventive steps, encompasses the inventive novelty (understandably) which, in many cases may be software. So the advice from a patent attorney that “you can’t patent software” is simply malicious (or wide and far disbarringly incompetent). One may patent software so long as it is an invention, and the administrative (or at times judicial) process requirements are complied with. Nevertheless, since the question inquired about “IP”, below is the answer to other avenues of intellectual property. Copyrights The software code written to make this operable could be the subject of copyright as long as it is not substantially identical with another solution (or such to give reasons to believe it to be a derivative thereof) that also put buttons in the four corners. The visual design may possibly also enjoy copyright protection, but that is less plausible to imagine since not only the copyrighted work of art is protected, but anything that may objectively be deemed a derivative work (regardless of whether the “re-author” actually knew about the copyrighted material that it may be deemed the derivate of). Design patents It is possible that one could get design patents for the actual graphical design of the layout provided there isn’t something substantially similar already out there protected by a design patent. Utility patents This would most certainly not overcome obviousness, that is, the requirement for one to obtain a patent which needs that a presented invention not be obvious for anyone “with ordinary skill in the art” (an ordinarily knowledgable person in the field of the specific area of tech). Trademark I have a hard time stretching my imagination to see how this could be applicable. | This question has been addressed directly, with very similar facts, by the federal courts, and the answer, based on those decisions, is: Maybe. The most famous case in this area is Mirage Editions v. Albuquerque A.R.T. Co., 856 F.2d 1341 (9th Cir. 1988). In that case, the defendant had bought a copy of plaintiff's art book, cut out the pages, and affixed them to ceramic tiles, which it sold. The defendant relied on the first sale doctrine, codified in 17 U.S.C. 109. The first sale doctrine says that if you own a copy of a copyrighted work, you can resell it without the copyright holder's permission. The plaintiff argued that, by altering the original artwork, the defendant had created a new derivative work. The first sale doctrine gives you the right to sell the book to someone else, but not the right to create derivative works, whether by writing and publishing an unauthorized sequel or, they argued, cutting and pasting and tiling and kilning the physical pages. The Mirage Editions court agreed with the plaintiff that the tiles were a derivative work outside the scope of the first sale doctrine, and therefore the defendants had infringed the plaintiffs' copyrights. However, other courts faced with similar facts have disagreed, and to date I'm not aware of any Supreme Court decision resolving the issue. The bottom line is: you are allowed to sell what you bought; you aren't allowed to transform it into something new and sell that. Where the line gets drawn is muddy and likely to remain so at least until the Supreme Court addresses the issue. | As you've presented them, I doubt the functions are protected by copyright in the first place. Originality is one of the threshold requirements for copyright protection, and it demands that the work in question be independently created by the author, and that it possess some minimal degree of creativity. If you're talking about programming at a level so basic that the function truly must be created in a particular way, there is no originality in simply following the instructions. And even if there's some wiggle room, but the language you used has likely been independently replicated by many programmers, that's still not original enough to be copyrightable. What you want to watch out for, though, is the possibility that they've been combined into an original arrangement that is protected. I don't know enough about how copyright law is applied to code to say where or how that line is drawn, but my instinct would be that it could be a fairly low threshold. | Can I sell below parody T-Shirts? Sure, you can sell those shirts. But there is no guarantee that your own determination and claim of Fair Use for a parody would prevail in court. The determination that your use of those derivative designs - Fair Use as a Parody - is not yours to make; it is for a court to make, if and when the copyright holders of those two franchises choose to take you to court. Your determination of Fair Use could only be valid in the US; there may be no Fair Use law in your country, and any relevant international laws and agreements will impact what the legal steps the copyright holders can take against you. Read Fair Use again for exceptions to the law and about international laws such as as Berne Convention and World Intellectual Property Organization. Warner Brothers (Superman) and Paramount (Godfather) could decide at any time to confront you with a cease and desist letter or a lawsuit to challenge your claim of Fair Use. They may win; you may win your defense of their lawsuit. That's a risk you will take. The fact that other people currently produce shirts with similar designs doesn't mean anything. They may not have been confronted by the copyright holders; or the copyright holders may not care to confront small producers of possibly infringing designs and products. | However, this uses the text "rights in an invention"; does that cover copyright? Yes. (Is this the correct law?) It certainly seems to be. Does "Relate … to the employer's business" cover the entirety of software engineering, or just the particular software engineering my employer does? Imagine that you work for a company that writes trading software. In your spare time, you develop a photo editing tool. Do you think a court would find that your project "related to the employer's business"? I do not. Or does my employer own copyright on everything down to the love letters I write? Google does not own everything their employees create; they only claim to. If someone challenged them on it, a court would decide, and probably not in their favor. | Yes. The license itself is really just one sentence long, and states explicitly that this is allowed. Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software. | There is no IP in ideas! There is copyright in writing it down - they can't use your exact words without permission. However, sending it to them in the form of a suggestion would give them a pretty much unassailable argument that you have given them an implicit licence. You can patent an invention (not an idea), claim IP in a trade mark (also, not an idea), register a design (again, not an idea) and hold copyright in an artistic work (once more, not an idea). They are required to keep confidences but offering them a suggestion probably doesn't count as supplying confidential information. I can see no risk in acting on customer suggestions. Hence, the idea to raise prices can be acted on or not at the discretion of the company. | One of the key fundamentals for the formation of a contract is that the parties demonstrate their intention to be legally bound. There are two ways that websites usually use to show that intent by their users: click wrap and browse wrap. With click wrap terms the user explicitly agrees to the terms and creates a binding contract by ticking a box or pressing a button. As far as I am aware there has never been a case where a user has been successful in claiming there was not a contract. With browse wrap terms: For assent to occur the browse-wrap agreement should be conspicuous, state that there is an agreement, and provide where it can be located. it is certainly arguable (IMO with a good chance of success) that the stack exchange browse wrap, with its tiny link embedded among many others at the bottom of the page, is unenforceable. For the circumstances you describe the site tried for a click wrap but due to technical difficulties got a browse wrap. If it can be demonstrated that the user saw the terms or a prominent link to them and continued this would probably be enforceable. Licenses: if the terms contain the grant of a copyright licence then that can be enforced because copyright exists even if a contract doesn't. |
Is it legal to lie about race on college applications This question is talking about the US btw On reddit (reliable source I know), in a life tips thread, someone mentioned that if you're Asian/White, you can put yourself down as white/POC on college applications. Thus, you won't suffer any reductions in college admission chances. The poster says you're allowed to do this because the college legally can't question the validity of the race you put down. Not sure why this is, maybe it's because it's your self-identified race? A possible reason that this is illegal is that this could be considered fraud. You are lying about your race to take advantage of a university's diversity policy for material gain (acceptance into college). So, can you legally be charged with fraud for lying about your race, or does the redditor's defense make perfect legal sense? | It's probably legal. This is not a sworn statement subject to perjury prosecution. Even if you can make the case that the statement is knowingly false, there is ample evidence (from colleges) that this is not a material consideration in admission. (I don't care where it actually is, that is plainly the statement that colleges make regarding race and admission). A fraudulent statement has to be material. It might violate college rules and they could conceivably throw you out for breaking the rules, if there is such a rule. Admissions materials are full of false statements. They are required by law to ask, you are not required to answer. Actual cheating on entrance exams is actionable (as we recently discovered); it is possible that in the future it will be "discovered" that exaggerations on entrance materials is also legally actionable. | Is it possible to become a lawyer if you have a record? Yes. But, it is also possible to refuse to admit someone to the practice of law based upon a criminal record. The decision is made by a "character and fitness" committee of a state's bar admission system after someone has finished law school and passed the academic part of the bar exam. If one state doesn't accept someone based upon a criminal record, another state could make a different decision. Your partner might be well advised to confer with experts on the issue to determine the likelihood that their particular criminal record would be a problem before making this huge investment of time and money and effort. If they decide to go through with it, would they be treated differently in the law community? Probably not. Nothing advertises to the legal community that someone has or does not have a criminal record. You are either admitted to the bar, or you are not. Your character and fitness application is private. If somebody finds out, that could impact how the person who finds out acts, just as it could in any other pursuit. But, someone would not be justified in treating a lawyer with a criminal record differently, for example, in case management issues or discovery plans, than someone without a criminal records, except in cases where national security clearances are required (a tiny subset of legal practice). | It depends on the context, who are contacting, and what you agree to when submitting. For example, lying the the federal government of the United States is generally a crime. See https://en.wikipedia.org/wiki/Making_false_statements Similarly, if you submit information under penalty of perjury you may be violating a law prohibiting lies under oath. See https://en.wikipedia.org/wiki/Perjury | The way "with intent to lose citizenship" works in US law is extremely demanding; it is very hard to establish it by doing anything short of appearing before a consular officer and formally renouncing citizenship. Other ways include serving in the military of a country at war with the US, being convicted of treason for committing one of the specified potentially expatriating acts (serving in an army at war with the US is sort of a trial-less special case of that, because engaging in a war against the US is treason), or serving in a "policy-level position" in a foreign government. The State Department says as much in the link. Obtaining citizenship is listed as a case where the administrative premise applies; so is swearing allegiance to a foreign state, serving in the military of a state at peace with the US, and serving in lower-level government posts of a foreign state. In those cases, the person retains US citizenship but at some point in the future may be asked by the State Department if they wanted to renounce it. Intent to renounce citizenship is established only by explicit declaration if you've only obtained citizenship in another country. With "policy-level posts" the premise doesn't apply, but then the State Department just decides on a case-by-case basis. You may well lose US citizenship (although the King of Thailand was born in the US, and I'm not sure if he's considered to have lost citizenship), but it's not automatic. Your senior ministers may lose citizenship, but it is likewise not automatic. But the normal citizens? The link explicitly says that the administrative premise covers that. | Both of your question are creatures of contract. Their disclosures when you set up the account (or potentially amended disclosures or terms they've mailed to you subsequently) control both of these questions. They don't have to share the results of their internal investigation against you (they do have to give you proof that the deposit/transfer was fraudulent), but that does not give you access to their internal investigative process or its findings. They cannot shut down your account based on protected reasons (race, class, gender, religion, etc.), but the can certainly close an account pursuant to their operating procedures, their rules, terms and conditions or disclosures - all of which you agreed to (implicitly or explicitly) when opening the account. There is likely nothing you can do about either of these issues, unless the contract you formed with them by opening the account gives you that right, which would appear in their terms of service, disclosures, etc., and these almost always protect their right to do most anything when it comes to protecting the overall best interest of the corporate entity. | The double jeopardy clause would prevent you from being retried by the government that tried you for murder (probably a U.S. state). But, you could be tried for fraud and obstruction of justice at the state level, and you could be tried for murder if an appropriate federal offense were located, at the federal level. Often conspiracy to deprive someone of their civil rights is used as a federal offense when there is a state level acquittal, and it isn't impossible to imagine that happening in this case as the victim had a right to the protection of the laws, and the state had a right to enforce the criminal laws, which was deprived in a manner that could be called "under color of state law.' | I'm a notary. If someone showed me a marked-up license, I'd refuse to perform the notarization, and make a note of the persons name and phone number, to make sure I would never make another appointment with the person. Is there a law that says I have to refuse? I don't think so. Is there is a law that says I can refuse if I have any doubts about the person's identity? Absolutely. | There are lots of times when it's illegal to lie. Among them: impersonating a federal agent (18 USC 912) lying to a federal agent (18 USC 1001); health care fraud (18 USC 1035 and 1347); mail fraud (18 USC 1341); wire fraud (18 USC 1343); perjury (18 USC 1623); False Claims Act (31 USC 3729-33); and libel and slander (common law). But you're right that these laws are all at least theoretically in conflict with the First Amendment rule that "Congress shall make no law ... abridging the freedom of speech." So why are some of them upheld against a First Amendment challenge while others are struck down? The Supreme Court explained its rationale a few years ago in U.S. v. Alvarez, 567 U.S. 709 (2012). That case dealt with a federal statute making it illegal to falsely claim that you had won any medal that Congress had authorized to be awarded to the armed forces. The federal government said that false speech had no value and therefore was not protected, pointing to cases upholding laws like the ones listed above where the Court had used similar descriptions. But the Court rejected that argument, noting that the cases where it has upheld laws limiting false speech dealt with "defamation, fraud, or some other legally cognizable harm associated with a false statement": In those decisions the falsity of the speech at issue was not irrelevant to our analysis, but neither was it determinative. The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection. Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more. Even when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood. So that sort of gives you an organizing principle. It's not really a philosophical distinction, and meeting it doesn't mean that the lie is illegal, just that it may be outlawed. tl;dr: The First Amendment usually does not protect false statements when they are: made knowingly; and made with some corrupt purpose. |
What is multi-fold argument ? please can you explain with examples? What is multi-fold argument ? please can you explain with examples? Does multi-fold argument mean multiple stages of proof, where one ends at a stage if the stage is sufficient to prove what is to be proved ? for example, Is the below case a multi-fold argument ? The is a college C that has the following rules:- Students will not be allowed to enter college it they are late to college. Students will not be allowed to enter exam hall if they do not have the hall ticket. Students will not be allowed to given the exam question paper if they are not wearing formal shoes. Student S is late and is without his hall ticket, but is wearing formal shoes. The professor refuse to give him the exam question paper. When the professor is asked to explain his actions, he says the following:- S is late; and S does not the hall ticket; and even if S is allowed into the college, S would not be allowed in the hall because he does not have a hall ticket. Is the professor's explanation a multi-fold argument ? Tks in advance jo | A multi-fold argument is one that has multiple independent grounds upon which a decision can be reached. The distinction between such arguments and arguments based upon a single ground is important in the doctrine of collateral estoppel because it impacts which basis of a court decision can be considered judicially determined in a later lawsuit involving some of the same parties. | It says They shall not confer the right [[to attend any meeting of members] and [to exercise one vote for every share held]]. The elements joined by a conjunction such as "and" should be grammatically parallel. Since the part after the conjunction is an infinitive verb phrase, the thing to which is it joined by the conjunction should also be an infinitive verb phrase. However, it is normal in English to use "or" when joining elements in a negative statement. For example, if it is forbidden to sing and it is forbidden to dance, one could post a sign saying "no singing or dancing." If the sign said "no singing and dancing" it could be interpreted as a prohibition only on doing both at once. So the sentence should read They shall not confer the right to attend any meeting of members or to exercise one vote for every share held. Perhaps less ambiguous: They shall not confer the right to attend any meeting of members or the right to exercise one vote for every share held. But the drafting error is unlikely to change the meaning of the text, since it is fairly easy to identify it as a drafting error. | For instance, clients often ask them for an assessment of "the chance of X going through". While clients can make it clear (in writing) that lawyers will not be held legally liable for giving "pure advice", lawyers often still refuse to give any guidance (even when they clearly do have one in mind). I do this on a regular basis. This said, lawyers are ill equipped to evaluate cases in these terms, because they don't see a full and unbiased sample of cases that they study academically, because there are too many distinctions between cases to make apples to apples comparisons of them, and because most lawyers went into law because they don't like thinking about things in mathematical terms. Lawyers will not infrequently say that a case or argument is strong or weak, or very strong or virtually frivolous, but evaluating the strength of a case is difficult and there are good academic studies that show that lawyers systemically overestimate the strength of their own cases. So, humility about the likelihood of a particular outcome is a good professional norm to have in place. Basically, law contains lots of uncertainty and the known unknowns and unknown unknowns predominate over what is known, most of the time. | Law is more like sport than mathematics You don’t know how it will turn out until you play the game. If a case goes to trial it’s because at both sides believe they can win. Both sides probably have good reasons for their belief. At least one of them is wrong. | Is there such a phrase in jurisprudential or legal thought? In those instances it is common to say that the evidence is inconclusive. Accordingly, it is unavailing because that evidence does not prove the party's allegation. | We don't have a lot of details, but if you're in the United States, the answer is probably yes. There are rarely any meaningful rules of evidence in student misconduct cases, so pretty much anything can come in. There may be some small difference in the answer depending n whether you're dealing with a public university or private, but in either case, I can't think of any reason why they would not be able to introduce the evidence if they had it. If there's a question about its authenticity, I imagine that would just be up to the misconduct board to decide. If Person X says "Person Y sent this to me," and Person X seems credible, that's probably going to be enough. | Could the person on the stand refuse? Yes. The witness may refuse to read it aloud, which does not mean he cannot be compelled to do so. The witness may object on grounds you mention (prejudice) only if he is the defendant. Either way, the judge will make a decision on how that evidence is to be presented to the jury. Regardless of who reads the evidence, the witness may be ordered to answer the question of whether or not he authored that document. Defying that order could result in contempt of court or, depending on the context, the entry of an adverse inference. | “You put that, of course, respectfully?” You bet your ass Heydon is telling Newlands off. Knock down drag out fights in a courtroom are more subtle than in a barroom and the judge always wins. First we have the trivial issue that the barrister interrupted the commissioner while he was speaking! This is extreemly disrespectful and Heydon was pointing that out by calmly but sarcastically suggesting that the interruption should have started with “With respect ..,”. The clear implication that the interruption should not have happened at all. It doesn’t matter if you disagree with what the court is saying, you don’t interrupt, you wait for your opportunity to respond. You will be given it. That’s respect. More germanely, the barrister is in a tricky position. I don’t know what came before the video starts but it was clearly one Newlands did not expect but that Heydon thought was foreseeable. Newlands is trying to hide behind “I haven’t been instructed on that” but is having trouble because the client (or at least, the client’s representative) is in the room and can instruct him right now. Not being prepared in court is also disrespectful. At a rough guess, just the people you see in the video are costing somebody north of $10,000 per hour. You don’t show up for the big game, tell the coach you can’t play because you forgot your boots but that it’s not your fault. Particularly when the person standing behind you is holding your boots. |
What is "profiteering" and is it illegal? Anther question discusses discrimination and "profiteering". What is profiteering in a legal context as distinct from normal for profit business in a capitalist market society? | UK In england-and-wales, Profiteering or "Price Gouging" don't appear at all in laws. However, there is the Competition Act of 1998, which bans abusive practices. Of particular interest is this provision : 18 Abuse of dominant position. (1)Subject to section 19, any conduct on the part of one or more undertakings which amounts to the abuse of a dominant position in a market is prohibited if it may affect trade within the United Kingdom. (2)Conduct may, in particular, constitute such an abuse if it consists in— (a)directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; The unfair pricing part would most certainly be triggered by demanding the weight of a roll of toilet paper in sterling silver (227 grams with ~£0.55 per gram, so ~£125), but the law also requires market domination, which is defined as controlling the price of about 40% of the goods in an area. So unless you are dominate the toilet paper market in all of the county or hundreds of miles, you can almost demand whatever you want. US Profiteering can be one of two things in legal circles of the united-states: Price Gauging War Profiteering War Profiteering War Profiteering was part of the title of HR-400 War Profiteering Prevention Act of 2007, defining the act as: Whoever, in any matter involving a contract with, or the provision of goods or services to, the United States or a provisional authority, in connection with a mission of the United States Government overseas, knowingly— (1) (A) executes or attempts to execute a scheme or artifice to defraud the United States or that authority; or (B) materially overvalues any good or service with the intent to defraud the United States or that authority; Examples from history would be deliberately creating sub-par products that break as soon as they hit combat. In any way, it is just against the US as the state, not any person. Price Gouging In many state laws, Price Gouging is fixed in some way or another. Price Gouging is the term of art used for the act to "take advantage of spikes in demand by charging exorbitant prices for necessities". The term does not apply to normal increases of prices due to shifting economies or dissimilar prices for products. Commonly, many are also restricted to emergency situations such as natural disasters, war, or even covid-19. Generally, these laws punish people who increase prices in an unreasonable manner but they also don't prescribe what reasonable is. An example of Price Gouging is the salesman, who knowing a hurricane will hit Florida, buys up all generators in Detroit that cost below 2000 USD and gets a truck there to sell them the moment it has passed. Now he sells each generator for 20000 USD, while the normal market price outside of the hit area is just a 10th of that. In addition, have him sell 5-gallon cans of fuel for 500 USD. Both items - equipment to make electricity to fix the homes and fuel - are under Fla. Stat. §501.160 1(a) and the prices are clearly matching 1(b). So our Detroid salesman in Florida is violating the law on Price Gouging. Non-emergency laws? Only very few laws are not concerned with an emergency situation and thus more broad and general. The most likely broadest of them is Mich. Comp. Laws §445.903 (z). It reads: Charging the consumer a price that is grossly in excess of the price at which similar property or services are sold. Here, grossly in excess is the requirement, but also the similarity of the products. So, it does not take dissimilar products into account, especially not if the two items cost you very dissimilar to acquire them. To take a less emergency example, let's say we have a shop. We sell two types of toilet paper: one is 1-ply and costs 10 cents a roll. The other is imported german, extra soft 4-ply with Aloe-Vera and vanilla smell and we demand 5 USD per roll. The price difference is harsh (50 times!) but the two products are not similar, and we can prove that the import paper did cost us something like 4 USD to get to our shop in the first place. Now, one day we just put the 5 USD label from our import paper onto the cheap one for whatever reason. Only now we grossly overprice our cheap toilet paper and violate that provision: we charge 50 times what the item's fair price is. When goods don't appear dissimilar but are A baker might make a pie for 50 USD in basic fixed costs (tools, wages, electricity) to run the shop, and 25 cents per pie in ingredients if he bakes 100 of them. That's 75 USD for 100 pies in costs, or 75 cents a pie. He wants to sell them at 1 USD a piece, that's a 1/3rd markup and a somewhat normal price. The same baker can also bake gluten-free pies. The ingredients cost him 50 cents a pie and the same basic fixed costs to make a batch. But he also has to clean the shop top to bottom for 3 hours before to get any gluten flour out of it, costing him another 100 USD in wages. He also only has a demand for 10 pies, so those pies cost him 160 USD per batch or 16 USD per pie. To make a profit, he sells them at 21,33 USD, which is again a 1/3rd markup. At first glance, a gluten-free pie might appear a very similar product, but it isn't even similar under the Michigan law, because manufacturing costs are disproportional higher for the market. Even if he could sell 100 pies and then made a 100 pie batch, he'd still pay 200 USD for 100 pies, and the fair price for a single pie from a 100-item batch would be 2,66 USD. But from the 10-item batch, it's 21,33 USD. Because the two pies are so dissimilar in manufacturing prices, they can not be used as "similar" under Michigan law. You'd need to compare the price of another gluten-free pie that is baked in similarly small batches in a bakeshop that makes both normal and gluten-free products in the same workshop. | Theoretically speaking, this is not theft. You are correct in that theft requires specific intent: to permanently deprive someone from the use and enjoyment of one of their lawful possessions. In real life, it is a matter of evidence of course. Saying you were only borrowing can be proven otherwise based on your actions. I should also mention that if you "borrow" something an there were obligations attached to that borroeing (e.g. "you can borrow it but you mustnt use it like this, or you must return it in a week") then failing to abide by those obligations can be sufficient to show intention to deprive. Furthermore "borrowing something" and consuming its entire usefulness for yourself counts as the permanent deprivation of the use of the possession from the owner. E.g. "borrowing" concert tickets and returning them after a concert (see s.6 Theft Act 1968) R v Lloyd, Bhuee & Ali [1985] QB 829 also tells us that the condition of something borrowed once returned may be indicative of whether there was an intention to permanently deprive someone of their rights to property. | Civil law instead of criminal law Not all things that we commonly refer to as "illegal" are actually crimes - many of them refer to violations of contracts or other obligations where the harmed party may (or may not) use the civil system to obtain some satisfaction, but the government and prosecutors will not do it for them. In general (with some exceptions, depends on jurisdiction and circumstances), most low scale copyright violations are treated as a civil matter - it allows the harmed party (i.e. the copyright owner) to sue you for damages in a civil court, if they wish and are able to do so. However, it generally is not a crime (again, with some exceptions - e.g. large scale distribution often is) so the government and police on their own cannot, should not and does not investigate and prosecute violations of software licence terms. | You've really got two questions here: 1) "Is it an invasion of privacy to know that I'm using an ad blocker?", and 2) "Is it discrimination to refuse service based on what software I'm running?". Taking them in order: Because of how HTTP/HTML works, there are essentially two ways for a server operator to know what software you are running. Your browser announces that it's running something. This usually takes the form of a modified User-Agent header. I'm not aware of any privacy laws that consider "Person A told me something" to be an invasion of Person A's privacy. They guess it based on the actions your browser takes. For example, if the website gets a request for a page, and the site's ad network does not get a matching request for an ad, the server deduces that the user is running an ad blocker. Since this is based on things that the server operator could reasonably be expected to be informed of, it isn't an invasion of privacy under any law I'm aware of. Is it discrimination? Yes. But not all discrimination is illegal. In general, only discrimination based on protected categories (race, sex, etc.) is prohibited, and I can't imagine a jurisdiction making "choice of browser add-ons" to be one of those categories, not least because it's something the person being discriminated against can easily change. | A company can charge each of its customers a different price if it wishes. Providing this discrimination is not on the basis of a prohibited reason (race, sex etc.) this is not illegal. | Is this legal? Generally yes, unless it unlawfully exceeds the scope of the license. Also, if it is, how can I check if it's permitted by the original store's EULA? Read the whole EULA, focusing on terms related to resale, assignment, and transferability. | When a platform has the right to kick you out as they deem fit, without any evidence why they did it, does that change if you have a paid? It depends on the purpose of payment and the terms & conditions it triggers. Your description reflects that payment entitles the user to have no ads "and stuff" (?). Payment does not necessarily entitle the user to continued access, diligence from customer service, or other features. Without fully knowing the platform's terms & conditions regarding payment it is impossible to identify what obligations (other than not displaying advertisements) your payment creates on the platform. The information you provide here is insufficient for assessing whether you have a viable claim such as fraud or breach of contract. On the other hand, the platform's apparent arbitrariness and lack of response might support a finding of unfair or deceptive practices if the platform does not honor or proportionally reimburse your payment. Many jurisdictions have legislation prohibiting practices which are unfair, deceptive, or unconscionable (example: MCL 445.903). Oftentimes statutory law establishes an agency in charge of addressing customers' complaints. | This is unlawful sex discrimination In fact, its incredibly close to the example given on this website: A nightclub allows women in for free but you have to pay because you’re a man. This is unlawful discrimination because of your sex. How do they get away with it? Did you complain or report them? No? That’s how. |
What is actually the difference between a *crime* and a *civil wrong*? I have two questions I'd like some help on, the answers to which potentially depend on each other. The first is a working definition for a civil wrong (as opposed to a crime). The second is whether all civil wrongs constitute crimes and hence can be regarded as illegal acts. A crime is generally defined as an act or omission that is prohibited by law. Thus, from what I understand, states will have various statutes that are passed by their respective legislatures defining what acts/omissions constitute crimes in their jurisdiction as well as what their potential punishments will be. For example, California may have a law written in a statute somewhere saying that an individual may not assault someone and that the penalty is no more than 2 years imprisonment etc. Now suppose someone in California bumps into someone else walking on the pavement (accidently) causing the other to fall and injure themselves. In this case, because the action of bumping into someone had no malice aforethought (it was accidental), we could say that the individual has not in fact committed a crime but instead has possibly committed a civil wrong (a tort). If this is the case, are there statutes in each respective state defining exactly what acts and omissions constitute civil wrongs? If there are statutes defining these civil wrongs, surely this would mean that all actions/omissions defined by statute to be civil wrongs are also in fact prohibited by law ? (since there exists a statute stating that the act/omission carries with it a potential penalty etc). If this is true, all civil wrongs must necessarily be crimes as well as civil wrongs since they are prohibited by law because a statute declaring a potential penalty for an act/omission is functionally a prohibition by law. Am I correct in my thinking here? Is it the case that all civil wrongs are necessarily crimes because they constitute actions/omissions that are prohibited by law (since there exists statutes defining them and their potential penalties)? | The detailed answer depends on the jurisdiction that you are asking about (e.g. Saudi Arabia, France, US or specifically California): my answer is about the US. You should note that the term "crime" originally comes from Ancient Greek κρίμα, which means "decision; judgment": the word form is pretty stable, compared to the concepts that it is associated with. When the legal system changes, the referent of "crime" changes. Some facts about how the words are used are because of historically earlier concepts. At an earlier stage of English law, there was no distinction between crimes and civil wrongs, there were simply wrongs ("tort", in French). In contemporary American practice, "crime" is a sub-type of offense against the government, the other being an "infraction" (such as a parking ticket). "Civil wrong" encompasses breaches of contract, breaches of trust, and "torts" such as trespassing and assault, and have in common that they are wrongs against an individual. If you commit a crime, it is you against the government, and one set of principles is adhered to in deciding guilt. If you commit a civil wrong, it is you against the individual (though it may be that the government acts as the mouthpiece when e.g. the "citizens of California" have been each wronged), and different principles are adhered to in deciding liability. The distinction can be murky given overlap in certain cases, for example assault is both a crime, as dictated by statutory law and punishable by prison time, and also a tort (sub-type of civil wrong) as recognized at common law (traditionally recognized since the 13th century in England), and passed on to modern America. You can sue a person for the tort of assault, but the government prosecutes you for committing the statutory offense of assault. In the case of a lawsuit over assault, you seek compensation for the harm done do you, you do not seek punishment for an offense against society. That is the function of criminal law, to define the acts which may be punished. Most states in the US have done away with "common law crimes", but as far as I know the remnants of common law crime in the US are limited to "definitions" – punishments are set out in statutory law. An example of common law definitional inheritance is "assault" under Washington law, where assault includes poisoning, transmitting HIV, and assaulting in various ways (relying on the common law definition of "assault"). This common law definition is then transmitted to the juror via a set of instructions, which summarize the case law that defines "assault". As you can see, there is a bright line between crimes and civil wrongs, so it is plainly not the case that all civil wrongs are crimes. A number of civil wrongs are statutorily defined (e.g. copyright infringement), and there is in the US a tendency to statutorily encode the essentials of civil wrongs as well as crimes. You are probably right that crime is "generally" defined as an act or omission prohibited by law, where "generally" means "by most people", but that is because most people don't have a clear understanding of "law", "statute" and "common law". Here in Law SE, we tend to use "legal" in a very broad sense, meaning "would probably be allowed and not incur any sanction by the courts". Copyright infringement is not (necessarily) a crime, but it is prohibited by law, thus "prohibited by law" is not a good definition of crime. Because of the distinction between "crime" and "infraction", both of which are cases of the individual vs. the government, "crime" has to be defined in terms of a specific aspect of the statutory law, the punishment. You can be imprisoned for committing a crime, but not for an infraction, such as a parking ticket. In Washington, "infraction" is defined with reference to Title 76, 77, 79, or 79A RCW or RCW 7.84.030(2)(b) that "is declared not to be a criminal offense and is subject to the provisions of this chapter", such as fishing with barbed hooks. Even though the government is the prosecutor in such a case, the offense is defined is said to be "civil in nature". In other words, the distinction is anything but clear. | Yes, but the difference is in nuance, not substance Illegal means “not according to or authorized by law” and lists unlawful as a synonym. Unlawful means “not lawful” with illegal as a synonym. So, by definition, they mean the same thing and can be used interchangeably. Illegal does carry a slight hint of being more egregious than unlawful and would be more often used of criminality than of a parking offense but it’s not wrong to use them interchangeably. | It depends on the law For example, the NSW Crimes Act 1900 s18 defines murder and manslaughter: (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only. It is possible that the acts you describe could be prosecuted as either murder or manslaughter. For murder the prosecutor would need to prove that they are an "act by the accused ... causing the death charged, was done ... with reckless indifference to human life" - the hard part is the causal link. For manslaughter it is clear that the act "was ... malicious" and that there was no "lawful excuse" - some cause and effect would need to be demonstrated still. However, the prosecutor has a more certain option under s31C: 31C Aiding etc suicide ... (2) Where: (a) a person incites or counsels another person to commit suicide, and (b) that other person commits, or attempts to commit, suicide as a consequence of that incitement or counsel, the firstmentioned person shall be liable to imprisonment for 5 years. It is important to look at the legal definition of a crime to determine if a given set of circumstances meets all the required elements. | One does not introduce statutes in a trial, criminal of civil. Rather, one introduces facts. The judge will present "the law", and will present it in a digested form in the form of interpreted instructions to the jury about what the law says. Jurors are not required to interpret the meaning of statutes, because jurors are also not expected to know the relevant case law surrounding a statute. A party might make a motion to the judge where the argument depends in part on the wording of a statute. Then there is a standard but jurisdiction-dependent way of referring to s statute, e.g. ORS 164.015, RCW 9A.56.010. For Minnesota there are three interchangeable forms: "Minnesota Statutes 2008, section 123.45, subdivision 6" which is the same as "MINN. STAT. 123.45 (2008)" or "MINN. STAT. ANN. 123.45 (2008)", which is for statutes. You have to look it up on a jurisdiction by jurisdiction basis – here is the answer that Minnesota gives (all legal citations). | Malum prohibitum can be defined as An act which is immoral because it is illegal; not necessarily illegal because it is immoral. while malum in se can be defined as An innately immoral act, regardless of whether it is forbidden by law. Examples include adultery, theft, and murder. A side-by-side comparison is given here: Legal scholars have used the terms mala prohibita and mala in se to draw the distinction between legally proscribed and morally proscribed offenses. The former are those offenses that are wrong simply because there exist formal, codified rules prohibiting them. Efforts to define mala in se, on the other hand, have resulted in vague, often conflicting meanings that leave the analyst with little but examples to serve as definitions. As a result, some have argued that the distinctions mala in se and mala prohibita be abandoned altogether. If one examines mala in se from an equity theoretical viewpoint, incorporating the concepts of intent and harm, it may be possible to arrive at a more understandable and useful concept. In theory, the two are easy to distinguish, but in cases of, say, statutory rape, the differences fade away. | In the US this is generally governed by state law: RCW 4.24.350 in Washington state. The criminal jury is not empowered to make such a decision, but a separate civil trial for malicious prosecution would be possible. Plaintif (ex defedant) would have to prove that the action was instituted with knowledge that the same was false, and unfounded, malicious and without probable cause in the filing of such action, or that the same was filed as a part of a conspiracy to misuse judicial process by filing an action known to be false and unfounded The basis for the lawsuit would be the objective facts that prove that the prosecution was false and malicious, and not the fact of acquittal or the subjective opinion of a juror. | Its always the simple questions that have complicated answers. In this case its because both Common Law and Civil Law have several different meanings. Civil Law v Criminal Law In this context, civil law means the ability of people to seek redress for wrongs from other people. These people may be individuals (natural persons) or legal persons (corporations, government etc.). When someone sues someone else they are using civil law. In contrast, criminal law is where a government prosecutes (not sues) a person (again natural or legal) who is alleged to have committed an offence. To illustrate the difference, if a person murders another person the government will use criminal law to prosecute the murder and the family of the victim will use civil law to pursue a wrongful death suit. Common Law v Civil Law In this context, common law and civil law refer to two of the major legal systems in use on Earth: By Maximilian Dörrbecker (Chumwa) - Own work, using World map by Canuckguy and others UNESCO World Heritage map by NNW The data sources are:University of Ottawa: JuriGlobe – World Legal Systems Research Group Wikipedia: List of national legal systems European legal systems map by Ain92 and others (which seems to be based on this map by C.Löser and others) World legal systems map by Robinkissac, CC BY-SA 2.5, https://commons.wikimedia.org/w/index.php?curid=40154967 Common Law is derived from the law of England and is used in areas colonized by the English - the UK, Canada, the USA, Australia and New Zealand. Civil Law is derived from continental European law and ultimately from Roman law. The primary contrast between the two systems is the role of written decisions and precedent. In common law jurisdictions, nearly every case that presents a bona fide disagreement on the law is resolved in a written opinion. In contrast, civil law decisions typically do not include explanatory opinions. In common law systems, a single decided case is binding law to the same extent as statute or regulation, under the principle of stare decisis. In contrast, in civil law systems, individual decisions have only advisory, not binding effect. In civil law systems, case law only acquires weight when a long series of cases use consistent reasoning, called jurisprudence constante. Civil law lawyers consult case law to obtain their best prediction of how a court will rule, but comparatively, civil law judges are less bound to follow it. For that reason, statutes in civil law systems are more comprehensive, detailed, and continuously updated, covering all matters capable of being brought before a court. The United States and 49 of the states are Common Law jurisdictions, the exception is Louisiana which is a Civil Law jurisdiction (specifically the Napoleonic subset of Civil Law) as, unlike the rest of the country, it was initially a French possession. Common Law v Common Law In addition to the way the term is used above, "common law" can be used within a Common Law jurisdiction to distinguish that part of the law which arises from judicial precedent from that part which arises from legislative statute or administrative regulation. Further, within legal argument, the term may be used to distinguish "common law" (or just "law") from equity. Before 1873, England had two parallel court systems: courts of "law" which could only award money damages and recognized only the legal owner of property, and courts of "equity" (courts of chancery) that could issue injunctive relief (that is, a court order to a party to do something, give something to someone, or stop doing something) and recognized trusts of property. | Yes. It is a crime almost everywhere to throw something at someone, even if it causes little or no injury. Usually it would be classified as "assault and battery" although if it damages clothing or other property, it could also be called, for example, "criminal mischief" which is intentional damage to property. It would also be a tort that could be enforced with civil damages in most places, although only nominal damages would be awarded and there would be no award for attorneys' fees. In practice, however, few people would press charges or turn to the police in such an incident, few police would take action based on the complaint because it is so trivial, and few people would sue in such a case. For what it is worth, the "living law" in Japan recognizes that someone has a duty to pay to clean your clothes or replace them if they can't be cleaned in such circumstances and most people appear to comply with that obligation without court involvement if the victim insists. Also, pie throwing as a political protest in Europe is also almost surely illegal under European law, although, again, this is rarely enforced by common political culture and tradition. |
How do I get legal advice in the UK? I have an idea for a website where users make financial commitments and want to discuss the enforceability of those commitments, as well as regulations on holding committed money - what kind of solicitor do I speak to and how do I find them? Initially I just want to discuss my idea and get an idea on whether it could work but would like formal advice. | What kind of solicitor do I speak to? One that specialises in providing financial services How do I find them? One way is here | A settlement is fundamentally a contract where parties A and B promise to do certain things (one of them being "stop litigating"). A court order is an enforceable order to do something. A contract cannot be directly enforced (where force is used to make a person comply), it requires a court order for actual enforcement. The conditions of a contract might be enforceable, but you can't get the sheriff to come out based just on a contract. It appears that you got to the "facilitation" phase where the parties talk about the issue and the CRT case manager talks to the parties in neutral terms, aiming for an agreement. If you don't reach an agreement, the Tribunal Decision Process escalates the matter. Under the decision process, the CRT member makes a decision, and it can be enforced in court. They state that "For a $25 fee, the CRT can turn your agreement into an order, if both parties agree that an order should be issued. This is called a “consent resolution order”." I suppose that you did not go through that step, and you only have an agreement. So you would need a separate court process to get a court order. Because everything that you did in this negotiation phase is confidential, if you want CRT to give you something that is enforceable, you have to present the case from the beginning, since they don't have access to what has happened before. The problem in your account is that a settlement has to be reached by yourselves – possibly with the assistance of the CRT case manager. I assume you did actually get a settlement (agreement) with the landlord, but have not filed for a consent resolution order. It may be that the case is too old for you to just pay the $25, and it does require agreement by the other party. Read their FAQ about how cases end. | To paraphrase the Princess Bride: "I don't think those words mean what you think they do". The "truther-activist", "sovereign citizen", and "Citizen vs. Human Being" concepts will only hurt you. It has never succeeded, to my knowledge; It has failed multiple times. Let me tell you a little about myself to illustrate what I mean: I am a software developer (and it seems from your profile, you are at least somewhat computer inclined, so this will hopeful make sense to you). The business side of the company I work for think that myself and my team write "magic code", and having the system do whatever they ask for is just a matter of pressing enough buttons in the correct order. It totally insane, and it completely analogous to what you are propose. The court is a carefully designed system, and you don't have the power to make arbitrary changes to it. Certainly not through the "arbitrary button presses" of "legal fiction". Some things to note Legal fictions are never summoned. People are. Organizations are. See initial paraphrase with regards to "legal fiction". Your legal fiction has not been summoned, you have. You will be appearing as yourself, not a straw man. I'm sorry to break it to you, but whomever you have heard this from is wrong, and in the most best case scenario, they are confusing what they want to be true for reality. If they have received any money from you in relation to this opinion, then they are almost certainly a scammer and a liar. If you insist on going further with this nonsense, then you WILL lose, regardless of what actual facts you have. My condolences. Now, to answer the question you asked: Yes, you can file a monition for discovery before first appearance (but not before pleading). You can file by mail, and in some jurisdictions, online. Source: https://www.nycourts.gov/courthelp/goingtocourt/caseBasics.shtml. | Choice of jurisdiction: You’re pretty much free to choose your jurisdiction. You don’t have to contract under German law. The German state will intervene though if you’re doing criminal stuff. Legally, the best is of course to draft a written agreement. You’re completely free in the terms (unless it becomes immoral, § 138 BGB), but a loan, § 488 BGB (Darlehensvertrag), with a 0% interest rate (if it’s meant as a short-term aid) is standard. The next level is to collateralize your loan, specifically with a pledge, §§ 1204 ff. BGB, i. e. your friend gives you a valuable item which you may (and actually have to) sell for profit if he doesn’t return the loan. However, unlike contract law, in property law you are not completely free regarding the terms (numerus clausus of property law, Typenzwang des Sachenrechts). Here it becomes too difficult though for the layman, so I wouldn’t recommend that unless you know what you’re doing. Ultimately, I/we think it’s nice of you to consider helping out your friend, but as Nike Dattani already portrayed it can get really nasty if you intend to legally enforce such matters. Trish mentioned the saying: Friendship ends where business begins. I, too, suggest to refer your friend to a pawnshop, research (third-party) microloan opportunities, and help him without directly giving him cash, dine together and offer company (i. e. address the psychological dimension financial troubles entail). PS: § 9 SGB Ⅰ: Germany is (to some degree) a welfare state. Maybe your friend is eligible for some kind of assistance. However, and probably typical of Germany, if you want to get money, you have to fill in forms. | Let’s say I go to a cash machine, ask for £100, and the machine gives me £10,000. I use my banking app and see that £100 left my account, not £10,000. At this point I haven’t done anything illegal. If I asked for another £100 and got £10,000 again, that might be illegal. But the extra £9,900 are not mine. They are the bank’s money. If I try to keep it, that is simply theft. | There does seem to be a meme in the UAE of people threatening legal action for negative reviews, as a form of defamation. The police will simply tell them that this is not a crime, go hire a lawyer if you want to sue them. If you block them, perhaps they don't have any other way to contact you (seems that was the point of blocking them), which means that you cannot receive their offer "If you pay us AED 1,000 we will not sue you", which could be a problem if they win their court case. Still, it is perfectly legal to ignore or block them, up to the point that you are actually served with legal papers. When they actually sue you, "blocking" is irrelevant, they will hire a process server to hand you the legal papers that command you to appear in court. | There are two separate issues here. Firstly, the deposit. Any deposit is required by law to either be placed in an approved deposit scheme provider at the start of any tenancy, or be insured with a provider. Either way, the landlord (or their letting agent) is required to issue the tenant with certain prescribed information within a certain period, as well as meet a few other requirements. Failing to do this can result in the landlord having to return the deposit and pay a fine to the tenant - if the tenant is willing to take him to court. If the landlord has done everything by the book, they don't owe you anything. (If they've paid the deposit into a scheme, then they will not receive any interest, as it's kept by the scheme provider to pay for their services.) Secondly, the renewal fee. These are legal and commonplace. However, you're never obliged to renew your tenancy, as if the fixed term expires and you don't leave, then it automatically becomes a statutory periodic tenancy (often called a "rolling tenancy"). With a periodic tenancy, you can leave by giving one month's notice in writing; or your landlord can request that you leave by issuing a section 21 notice, which gives you two months to depart or face legal action. If you tell the landlord that you would like to change to a periodic tenancy when the current fixed term ends, then no-one has to do anything (though the letting agency may charge you an admin fee). The landlord cannot impose a new tenancy agreement, but they can issue a section 21 notice. Or, as you suggest, you can request a longer fixed term. This provides more security for you and the landlord - though it makes it harder to leave early, as you're potentially liable for the rent for the whole term. | He has this phrased like it's the ability to decide which laws you follow, and that it's an ability being withheld from the general public (although I seriously doubt that at least the former is the case). This is yet another false claim made by "freemen" or those who claim "common law defences". Notice of Understanding has no legal meaning unless the context demands that it evidences a meeting of the minds for the purposes of contract formation. It is a well-settled principle of common law that in order to be bound by a contract, there must be an agreement. Put simply, I cannot bind someone simply by sending them a Notice unless it is a right conferred on me by some earlier statute or legislation, or legally binding agreement. I tried searching for a solid definition, but all I could find was people/organization's Notice of Understanding and Intent and Claim of Rights. The reason you've found nothing official about the terms Notice of Understanding and Intent and Claim of Rights is that there is nothing official or legal about those terms. They are ordinary terms with ordinary meaning being bastardised by deluded people who believe they can fine the government and refuse to be bound by the law of the land. Of course, none of this holds up. What is the purpose of declaring your Notice of Understanding and Intent and Claim of Rights? It might make you feel better, even though it has no legal, practical or other effect. |
What in essence are PCSOs? (Organizationally and career trajectory wise) And where do they fit into the system of police? Are they aspiring police constables in training who will hopefully one day progress into full policedom? Do they report under the met? | What in essence are PCSOs? Police Community Support Officers (PCSO) are civilian employees (also known as police staff) of the relevant police force, a role created by section 38 Police Reform Act 2002. They may be designated with (i.e. authorised to use) any power or duty of a constable except those identified in Part 1 of Schedule 3B and any or all of the various powers and duties found in Schedule 3C (far too many to repoduce here). Where do they fit into the system of police? Each force area has its own requirements, priorities and demands, but for the Metropolitan Police Service (the Met) PCSO roles include: Safer Neighbourhood Teams – focussing on crime and antisocial behaviour within the community. Safer Transport Teams – focussing on over-ground transport, working with the public to ensure and reassure that our transport networks are safe. Roads Policing Teams – working alongside Traffic Officers, dealing with collision scenes, incidents and broken down vehicles. Reassurance Tasking Teams – visible presence on the roads, enforcing red routes and managing network disruption. Tunnel Team- focussing on keeping London’s Tunnel network operating at full capacity and dealing with associated issues. Are they aspiring police constables in training who will hopefully one day progress into full policedom? Some are, some are not. There is neither an expectation nor requirement to apply to be a constable. Do they report under the Met? Not all, as each police force has reporting responsibilities for its own employees. | The term "law enforcement officer" is defined in different jurisdictions in different ways and is defined in different ways for different purposes. For example, a criminal code might define law enforcement officer in reference to arrest power, while another statute might used the term for H.R. and licensing regulations, and a third might use a functional definition for eligibility for a certain kind of tax deduction under state law. Not every jurisdiction has every kind of law enforcement officer either. The term "law enforcement officer" would almost never include a judge or prosecuting attorneys, but would sometimes include a law clerk for a judge. This is because law clerks, especially in rural areas, often have a dual appointment as a law clerk (basically a lawyer acting as a research assistant for a judge) and as a bailiff who is an officer of the court charged with maintaining order and security in the courthouse, or at least in an individual judge's courtroom. A bailiff would often be classified as a "law enforcement officer." Law enforcement officers would ordinarily include Municipal police. Town Constables. County sheriffs and deputy sheriffs. Bailiffs. Marshals including U.S. Marshals. Some Park Rangers. State police. Mounties (i.e. Royal Mounted Police in Canada). Texas Rangers. College or university security officers. Transit system security officers. FBI agents. Secret Service agents. DEA agents (i.e. drug enforcement agency). ICE Agents (i.e. immigration and customs enforcement) General services administration officers (i.e. federal building security). There would be differences from jurisdiction to jurisdiction and based upon the context in which the term was used over whether some of the following persons would be law enforcement officers for particular purposes: Coroners and deputy coroners. Military police. Parking enforcement officers. Ordinance and building code enforcement officers. Crossing guards. Law enforcement forensic lab employees and CSI officers. Diplomatic protection corps employees of the State Department Justices of the peace (who historically had both judicial and law enforcement duties although now this is mostly the title of a non-law enforcement judge). Confidential informants under contract. A Florida statute cited as an answer to a previous question you asked about impersonating a law enforcement officer included the following list, from which I have marked in bold those that would often not be considered law enforcement officers: firefighter sheriff officer of the Florida Highway Patrol officer of the Fish and Wildlife Conservation Commission fire or arson investigator of the Department of Financial Services officer of the Department of Financial Services officer of the Department of Corrections correctional probation officer deputy sheriff state attorney or assistant state attorney statewide prosecutor or assistant statewide prosecutor state attorney investigator coroner police officer lottery special agent or lottery investigator beverage enforcement agent watchman any member of the Florida Commission on Offender Review and any administrative aide or supervisor employed by the commission any personnel or representative of the Department of Law Enforcement a federal law enforcement officer as defined in s. 901.1505 Some of bolded categories are marked that way because some people identified would count as law enforcement officers, but clerical and administrative personnel in those offices would ordinarily not be considered law enforcement officers. Correctional officers are frequently considered law enforcement officers for some purposes and not others. | Answering the question title, a Texas law enforcement officer can certainly make arrests in Louisiana these days under the right circumstances (I'm not about to look up the laws as of 1934). For starters, Louisiana law grants any person the authority to make an arrest when the person being arrested has committed a felony, whether or not that felony was committed in the presence of the person making the arrest. This is normally a legally risky thing to do (the arrest is illegal unless the person actually committed a felony, while a cop's felony arrest is legal as long as the cop had probable cause), but in this case the pair had been involved in a kidnapping and a robbery in Louisiana. Any person could have made a lawful arrest, and could have used necessary force to effect that arrest. But suppose the gang turned out to be innocent of the Louisiana crimes. In that case, a citizen's arrest would be illegal. But the Texas lawmen weren't at the ambush alone. They were there with the parish sheriff and a deputy, who were Louisiana peace officers with the authority to make an arrest on probable cause. And under Article 219 of the Code of Criminal Procedure, A peace officer making a lawful arrest may call upon as many persons as he considers necessary to aid him in making the arrest. A person thus called upon shall be considered a peace officer for such purposes. Neither of these things depends on the Texas officers' status as Texas officers. There are some arrests which are legal based on that (e.g. hot pursuit), and a Texas officer has some extra powers in Louisiana based on federal law that make an arrest easier (e.g. cops in the US can carry concealed firearms nationwide without needing a CCW permit), but under normal circumstances a Texas police officer has no special authority to make an arrest in Louisiana. However, it's not at all uncommon for police agencies in different states (or at the state and federal level) to cooperate on something, and there are ways to make it work out. With more planning, there are normally formal ways to do it instead of needing to rely on "we'll ask you for assistance" (for instance, officers could formally be appointed as deputies in the appropriate agency; this happens a lot on federal task forces, where a deputized state or local cop gets nationwide jurisdiction). If Bonnie and Clyde existed these days but the feds wanted to involve state cops, they'd just set up a federal task force, make Hamer a special deputy US marshal, and go from there. | I'll be referencing the "Minutes of proceedings of the Colonial Conference, 1907" throughout (600+ pg. PDF). The page numbers refer to the ones printed on the page instead of any software page number. It seems that @owjburnham's comment is essentially correct, it is mainly a shift in terminology. It came from a desire to further distinguish self-governing from non-self-governing colonies (or "Crown Colonies" as the official term seems to have been). As such, "Dominion" came to be (re)defined as "self-governing colony." During the 1907 Colonial Conference, Prime Minister Sir Joseph Ward of New Zealand opined the following [pg. 30-31]: I think the term "Colony," so far as our countries are concerned, ought to cease, and that that term ought to apply to the Crown Colonies purely, and that those of us who are not at present known as Dominions or Commonwealths, should be known as States of the Empire, or some other expressive word, so as to make a distinction as between the Crown Colonies and the self-governing Dependencies. He also stated the following [pg. 48]: I assume that in this resolution New Zealand, now known by the term "Colony," will be included in the expression "Dominion," which I think it ought to be. Awkwardly, this was right at the end of the day and no one reacted to this statement as the conference adjourned. As the participants were deciding upon the structure and participants of subsequent conferences, there is a lengthy discussion of the exact term to be used to refer to the self-governing colonies [pg. 78-90]. Near its conclusion, the chairman states the following [pg. 89]: We agreed [...] that instead of the word "Colonies" we should use the word "Dominions;" but is it sufficiently defined if we use the word "Dominions" alone throughout? [...] I would suggest that we might take what is really the official term "the Dominions beyond the seas" in the first place where it occurs [...] and any other reference to it in the course of the Resolution might very well be "Dominions." That would make it absolutely clear what we mean by the expression in the first place. Thus, the conference opted for an implicit rather than explicit definition of "Dominion". The designation of Newfoundland as a Dominion in 1907 is just a reconciliation of the fact it was a self-governing colony and the new understanding that the word "Dominion" was to mean roughly that. There was no effective change of status. An explicit definition of "Dominion" would not come until the Balfour Declaration of 1926. Ironically, Newfoundland played no role in deciding the term to be used for itself as its Prime Minister only arrived on Day 4 of the conference [pg. 87]. | I feel that a person, not the subject of arrest, should be protected by the 4th amendment if they choose to remain in their vehicle, even if “ordered” to exit the vehicle by an officer. The intuition is fine, but is basically incorrect. I’m most interested to know: How would a driver (1) Politely (2) determine if a given instruction to exit the vehicle must be complied with, and (3) decline the instruction without giving the officer “cause” or otherwise damaging a potential case? From a practical perspective the only workable response is to comply. There are times when this is done without a reasonable suspicion (or in some cases probable cause) or other legal basis, but it is pretty much impossible for you to dispute this one the spot. Most of the time, the officer will have the legal authority to order you to leave the vehicle. If they order you to exit the vehicle despite not having the legal authority to do so, the right course of action is to comply and then to file a complaint with the agency employing the officer or to bring a civil lawsuit against the officer. There are good answers to a basically duplicate question at How can you tell if you have to follow a police officer's instructions? | While it is from a different jurisdiction, the following goes to the heart of the matter: Arrest, when used in its ordinary and natural sense, means the apprehension of a person or the deprivation of a person's liberty. The question whether the person is under arrest or not depends not on the legality of the arrest, but on whether the person has been deprived of personal liberty of movement. Directorate of Enforcement v Deepak Mahajan, (1994) 3 SCC 440 at ¶46 (SC of India) In your example, the police officer has been deprived of "personal liberty of movement"; if they can still speak there would be no legal impediment to them placing the person who arrested them also under arrest. It would then be incumbent on both parties to deliver each other into lawful custody. The citizen would need to seek out a law enforcement officer to do this; the police officer has already done so, being their own law enforcement officer. After this, comes the paperwork. | Here's what I had to do : After going through this harrowing phase, I thought I will post an update in case some one is in such a situation. The Northern Territory's Personal Violence Restraining Order act has a clause (section 21) which basically says if the applicant believes a third party knows the defendant's name then the applicant can request the court to order the third party(power, water, electoral roll, etc) to provide the name if the applicant has already made reasonable efforts in finding out the persons name and hasn't been able to. The third parties will only oblige to a court order. I am almost certain every state/territories' act (in Australia) will have such a clause. It was a challenge to get the court registry to accept the application as the front counter staff/supervisor/supervisor's supervisor were all unaware of this provision (to make an application for a PVRO but get the judge to first order the third party). I had to carry with me the act with the highlighted portion for them to read, analyse and consult with other court staff to even take my application in. At least in the NT there are community legal help services available for no fee and I highly recommend them. | The dichotomy between solicitors and barristers in the UK isn't one based on verbal definitions in the English language. In other words, the fact that barristers argue and solicitors don't isn't something that's inherent to the words, it's just how British law decided to divide it. Since those countries with solicitor generals don't have this dichotomy, they generally don't have anything actually called a barrister, and there's no reason why the solicitor general couldn't be called that, since solicitor doesn't require that he not argue in court. |
Can a modifiable appendix be a valid and enforceable extension of a Last Will & Testament? I'm in NY state (US). I am writing a will and am at the article where I name gift designations for specific beneficiaries (son #1 gets my old slippers, son #2 gets my belly button lint, etc.). This list may very well change over time: I will almost certainly think of new things to add every one in a while. So I am thinking about wording the article to reference any beneficiary designations in an appendix. For instance, something like: "Appendix C shall list all of my gifts and their designated primary and secondary beneficiaries." Then in Appendix C: GIFT DATE ADDED PRIMARY BENEFICIARY ============================================================================== Old Slippers 09/19/2022 Son #1, 123 Testville Rd, Test City, NY 12345 Belly Button Lint 09/19/2022 Son #2, 234 Test Court, Testtown, NY 23456 Chickenwing Under Couch 11/05/2024 Son #1, 123 Testville Rd, Test City, NY 12345 I'm thinking this way I can add entries to the Appendix without rewriting the verbiage of the main Will. NYS has a requirement that the Will is signed by 2 Witnesses and (I believe -- keep me honest) notarized. So I'm hoping this is a way for me to add items to the Appendix without needing to re-sign, re-witness and re-notarize every time I think of something else. Is this strategy valid & enforceable? | This is allowed in Colorado. Colorado's version of the Uniform Probate Code authorizes such a document for tangible personal property which is usually called a "Personal Property Memorandum." This is authorized by Colorado Revised Statutes § 15-11-513. The section of Colorado's probate code states: Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing shall be either in the handwriting of the testator or be signed by the testator and shall describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will. New York State Law NYS has a requirement that the Will is signed by 2 Witnesses and (I believe -- keep me honest) notarized. So I'm hoping this is a way for me to add items to the Appendix without needing to re-sign, re-witness and re-notarize every time I think of something else. Is this strategy valid & enforceable? This is generally not permitted in New York State The legal formalities for the execution of wills and trusts in New York States are among the most strict in the United States (Florida and Maine have been more strict from time to time). This cannot be done in a way that is valid and enforceable in New York State. One can determine this from a review of the relevant New York State Statute which is called the Estate, Powers, and Trusts Law (EPTL), that does not contain a parallel provision to the Colorado statutory section. Therefore, in New York States, all dispositive provisions of a Will related to tangible personal property must be executed with the same formalities as any other Will or Codicil (i.e. it must be signed by the testator and two witnesses, a notarization is not required). Oral and unwitnessed handwritten wills are rarely allowed in New York State New York State does recognize oral wills (called nuncupative wills) and wills in the handwriting of the person making them (called holographic wills) as well, but only in very limited circumstances. The pertinent provision of the EPTL state: (a) For the purposes of this section, and as used elsewhere in this chapter: (1) A will is nuncupative when it is unwritten, and the making thereof by the testator and its provisions are clearly established by at least two witnesses. (2) A will is holographic when it is written entirely in the handwriting of the testator, and is not executed and attested in accordance with the formalities prescribed by 3-2.1. (b) A nuncupative or holographic will is valid only if made by: (1) A member of the armed forces of the United States while in actual military or naval service during a war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged. (2) A person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict. (3) A mariner while at sea. (c) A will authorized by this section becomes invalid: (1) If made by a member of the armed forces, upon the expiration of one year following his discharge from the armed forces. (2) If made by a person who serves with or accompanies an armed force engaged in actual military or naval service, upon the expiration of one year from the time he has ceased serving with or accompanying such armed force. (3) If made by a mariner while at sea, upon the expiration of three years from the time such will was made. Wills valid where executed will generally be honored If a Will accompanied by a Personal Property Memorandum were drafted and executed in Colorado while someone was domiciled there, and then was presented to a Surrogate's Court in New York State for probate, because the person who wrote it was domiciled in New York State when they died, however, the New York courts might honor the Personal Property Memorandum on the theory that the validity of the execution of a Will is usually governed by the law of the place where it is signed and not by the law of the place where it is probated. The alternative of a revocable trust in New York State A workaround somewhat similar to a personal property memorandum could be done with a revocable trust, but this has its own limitations. In New York State a trust or amendment to a trust not created by a last will and testament must be either (1) signed and notarized by the creator of the trust and also by the trustee if there is one separate from the creator of the trust, or (2) signed by the creator of the trust and witnessed by two witnesses in essentially the same way that a will would be witnessed. Unlike most U.S. states, New York State does not recognize trusts that are signed but are not notarized or witnessed, and unlike most U.S. States, New York State does not recognize orally created trusts. Trusts validly formed and amended outside of New York will generally be honored This is, of course, assuming in both cases that New York State law governs the formation of the trust. New York State choice of law rules, however, will generally recognize the validity of a trust formed with formalities that were valid in the place where it was executed if the person executing it was domiciled there. | In the event of a dispute, the person resolving the matter, probably an arbitrator in the case of a commission dispute between two realtors and either an arbitrator or a judge and jury depending upon what your listing agreement says about that issue, would hear the testimony from both parties and decide. The intent of the parties is supposed to govern in cases of clerical errors, but a signed document has a lot of weight, especially in such a prominent term. It is a little hard from the way the question is posed to determine who is willing to correct the typo and who insists on enforcing the contract containing the typo. | Was/is it permissible for judges in the US to talk ex-parte like that? No. Ex parte interactions of that sort are not allowed. See, for instance, Disciplinary Counsel v. Bachman, 2020-Ohio-732 (Dec. 18, 2020) and Maze v. Judicial Conduct Commission, 2019-SC-0691-RR (Dec. 17, 2020). An example of less recent decision but with a reporter citation number is Comm'n on Judicial Performance v. Bozeman, 302 So.3d 1217 (2020). For situations of imminent risk of irreparable harm, procedural law provides for ex parte motions and ex parte petitions, such as this granted petition for Personal Protection Order. See M[ichigan]CR 3.7003(G). But the scenarios you depict fall short of the necessity for which ex parte provisions are intended. do the above scenes in the movies essentially portray judicial misconduct? Yes. A judge's house is inappropriate for communicating, let alone ex parte, his ruling (I am not knowledgeable of the films but my understanding of your description is that that judge made the ruling on the application). As for The Untouchables, any evidence of jurors' & judges' conflict of interest and likely bias has to be filed in court and comply with procedural law so that all parties have an opportunity to litigate the matter. | It should be legal (though I can't find an analogous case where the court has ruled that it is). There is a regulation summarizing the government's position (thus, what will be enforced in 17 CFR 240.10b, which prohibits use of "manipulative or deceptive device or contrivance" in stock trading. Section 240.10b5-1 says: The “manipulative and deceptive devices” prohibited by Section 10(b) of the Act (15 U.S.C. 78j) and §240.10b-5 thereunder include, among other things, the purchase or sale of a security of any issuer, on the basis of material nonpublic information about that security or issuer, in breach of a duty of trust or confidence that is owed directly, indirectly, or derivatively, to the issuer of that security or the shareholders of that issuer, or to any other person who is the source of the material nonpublic information. The executives clearly have a direct duty of trust of confidence. Section 240.10b5-2 enumerates the following duties: (1) Whenever a person agrees to maintain information in confidence; (2) Whenever the person communicating the material nonpublic information and the person to whom it is communicated have a history, pattern, or practice of sharing confidences, such that the recipient of the information knows or reasonably should know that the person communicating the material nonpublic information expects that the recipient will maintain its confidentiality; or (3) Whenever a person receives or obtains material nonpublic information from his or her spouse, parent, child, or sibling; provided, however, that the person receiving or obtaining the information may demonstrate that no duty of trust or confidence existed with respect to the information, by establishing that he or she neither knew nor reasonably should have known that the person who was the source of the information expected that the person would keep the information confidential, because of the parties' history, pattern, or practice of sharing and maintaining confidences, and because there was no agreement or understanding to maintain the confidentiality of the information. In the hypothetical, (1) is plainly not applicable. (2) is predicated on having a relationship (which doesn't exist) and the information-having expecting you to keep the information secret (he doesn't know that you have overheard them). (3) is likewise not applicable. The basic rule is that you can't "misapproprate" information, but you can use information that falls into your lap (even from a person who has a duty to not disclose the information). This subsection starts saying "For purposes of this section, a “duty of trust or confidence” exists in the following circumstances, among others", which means they aren't necessarily giving you an exhaustive list. Still, there is currently no legal basis for prosecuting a person who overhears information from someone he has no relationship to, even if you are pretty confident that the information has not been made public. | The situation is that Executive Order 2020-33 is no more, and a new order, 2020-68 exists. The old orders to stay home are now copied under this order, but it may be necessary for her to re-issue (a subset of) the orders so that they are pursuant to #68 and not #33 (live by the technicality, die by the technicality). If she does not do that quickly, I expect there to be legal challenges. The law (30-403) doesn't say that orders issued pursuant to a declaration of a state of disaster expire when the authorizing declaration expires, but one can reasonably infer that that is what the legislature had in mind when this law was passed. But that is a matter for the courts to decide. Deference to the executive, which is the usual way that courts operate, would favor an interpretation where saying "All previous orders that rested on Executive Order 2020-33 now rest on this order" counts as re-issuing the same orders with a new number in the text. The law does not say that the circumstances authorizing an emergency order have to be completely different. Perhaps the legislature will revise the law in the future, but it is what it is right now. | I'll use Wisconsin as a jurisdiction. If you file a false death certificate, that's a felony. But you probably wouldn't go that far. It could be disorderly conduct. In Wisconsin disorderly conduct is described as follows: Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor. There's also a statute prohibiting "Disrupting a funeral or memorial service" but it won't apply in this case unless disorderly conduct applies. It would raise the penalty to a class A misdemeanor (or a class I felony if you somehow did it again after being convicted once.) On the civil side, there could be an action for intentional infliction of emotional distress, either for the false report of your death, or for a "corpse" suddenly coming to life. This kind of lawsuit requires "extreme and outrageous conduct", but if this isn't, I don't know what would be. | The law often provides a default which a contract can modify. For example, the law might provide that a lease can be terminated on 30 days notice, but the parties could agree on a different notice period, which would control. But a contract cannot be for an illegal result (or if it is, it will not be enforced by a court). Nor can a contract modify positive legal provisions which are specified as absolute. For example in some US states a consumer sale includes an implied warranted of merchantability, and this cannot be waived or modified by contract. Or the law in some cases gives a period, perhaps three days, within which a party has a right to cancel without penalty. This generally cannot be shortened by contract. There are various reasons why laws provide terms which a contract may not overrule. In many cases it is because one party is perceived as being in a stronger position and might be inclined to take unfair advantage. This is the case with much consumer protection legislation. In other cases it is to society's advantage if there are uniform terms and standards known to all, which cannot be varied by contract, so third parties do not need to check for contract terms. For example, US copyrights always expire on the last day of a year, and no contract can modify this. For another example banking law specifies the position and format of account numbers and routing numbers on a check, and a customer may not contract with a bank for a different format. I do not know if the EU refund law provides a default which can be modified, or an absolute rule which cannot. | Do I have any recourse for invalidating all or part of the contract? No. There is a presumption in contract law that when a contract is reduced to writing then what that writing says is what the parties agreed. Also, if you signed it, then you are legally stating: I read it, I understand it and I agree to it - don't sign things you don't understand. If your lawyer has produced something you don't understand then have them redraft it until you do. Would a successful suit against the lawyer for malpractice or negligence make any difference? No. A suit against you lawyer may get you damages from your lawyer but it will not affect the rights of third-parties. What is best practice for avoiding flawed contracts like this in the first place? Read and understand the contract. Educate yourself enough in the law so that you can do this. Your lawyer is there to give you professional advice; you are there to make your own decisions. |
Is it illegal to buy and/or sell "feet pics" or pictures of feet if the seller is a minor? Curious about this -- I'm not a buyer of such things. A growing trend online that has been booming is females selling pictures of their feet online, very often to male buyers. If the seller happens to be a minor, is this illegal? Feet can be sexualized but it is not a part of the body that is considered nudity -- you could also sell "hand pics," "ear pics," "stomach pics," etc. But given the popularity of foot fetishism as the #1 fetish there is, feet remain most popular. What's the deal here though? If someone over 18 purchased "feet pics" from someone under 18 who willingly sold them of their own free will, is this a crime? Minor is a term for anyone under 18 in the States you could argue, but what merit does that have for something of this nature? Just to note that this referring to the act of the purchase/sale of content, not of anything outside the nature of the transaction itself. Like for example it's obvious this does not imply a close relationship with a minor that is sexual just by means of buying said content any more than this would with an adult also if the only details surrounding such an act is of purchase and nothing further/personal. Some imply this is "foot porn" but images of feet pics alone are not illegal to view, possess or purchase in any common situation. | Yes, maybe australia In Australia, child abuse material is classified as the sexualised depiction of persons under 16 (or in some cases 18). This applies under both State and Commonwealth laws. Common charges in NSW will be possessing, disseminating or producing child abuse material under s 91(H) of the Crimes Act 1900 (NSW). Further Commonwealth offences can be found in circumstances where a communications carrier has been used for the purposes of delivering child abuse material. Within this field, there are subtle variations in circumstances. The court would need to decide if the pictures were a “sexualised depiction”. Context matters. I don’t know of any cases on point but convictions have been secured for sexualised cartoons of children and pictures of fully-clothed children in sexual poses. | No. These companies seem to be saying that they are entitled to sell music under some sort of mandatory licensing agreement authorized by the law of the Ukraine, or by a licensing agreement specific to the Ukraine. Even if this were true, it would only give them the right to distribute the files in the Ukraine. If an American, sitting in the U.S., makes a digital copy of a file on a Ukrainian server by copying it to his or her U.S. hard drive, they have to have a license to do so issued either by the U.S. copyright holder or authorized by U.S. law. A license to distribute in the Ukraine doesn't give the U.S. end user that license. A Ukrainian statute doesn't give the U.S. end user that license. If the end user doesn't have that license, he or she is violating the copyright holder's rights and may be civilly or criminally liable. There is no scienter requirement for copyright infringement. In fact, it's not at all clear that any Ukrainian site is operating even under this dubious legal cover. This report on Ukrainian licensing agencies by an industry group claims that many Ukrainian licensing authorities are actually scams that have no rights to distribute music under any license--one of the "rogue licensing agencies" discussed is Avtor, referenced in your first example. There is some legal confusion over what group does have permission to license music and collect royalties in the Ukraine, but it's clear that Avtor doesn't, and it certainly doesn't have permission to distribute them in the U.S. If a guy came up to you on the street and told you he had written permission from Disney to videotape their latest movies with a camcorder and sell them to you for a dollar, are you violating the law if you buy it? The answer is yes, and it's the same for these Ukrainian sites. | You tag the question with "criminal law", suggesting that by "illegal" you mean "is it a crime" -- that would depend on jurisdiction, but in the US or my state, it is not a crime. There are crimes that you could commit with such an account, but violating the TOS is not itself a crime. However, it is illegal, a breach of contract, as you can see from the TOS "You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission". | If you were an adult, the risk would be a lot higher. You can get away with things when you are 13. And since you are not an adult, the purchase contract is voidable so your parents can void your purchase. Don't do this ever again. It's not a "prank". You say you have no money and your parents have no money. The money on that card could be the last bit of money that the card owner had. Worst case someone has become homeless, had a bit of money in his card account, and you took the last of their savings. Does that make you feel bad? It should. | Will you be in legal trouble for child pornography? No. The legal definition of child pornography generally requires things such as "sexually explicit conduct" or "lewd and lascivious display". Mere nudity does not rise to this standard; photographic documentation of suspected physical abuse comes nowhere near it. Will you get in trouble for not reporting the suspected abuse? Almost certainly not. People with certain jobs are "mandatory reporters" of suspected abuse, but it's very hard to become a mandatory reporter without being aware of it (and even mandatory reporters generally aren't required to report members of their immediate family). I'm not surprised that Walmart reported the photos to the police. For various reasons, commercial photo processors are utterly paranoid about child pornography, and will report anything that might even remotely indicate the potential for such. (Strongly related: Is it legal to take naked non-abusive pictures of my child?) | united-states Totally legal, as long as whatever you're forbidding isn't a protected class (race, gender, etc.—the details vary by jurisdiction), or, to some degree, a pretense for one. A real-life example comes via a feud between two artists: Stuart Semple and Anish Kapoor. For reasons that are not particularly relevant to this explanation (other than perhaps that they are unrelated to Kapoor's membership in any protected class), Semple strongly dislikes Kapoor, and has made one of his products available to purchase...as long as the purchaser agrees that they are not Anish Kapoor, that they are not an associate of Anish Kapoor, and that they do not have any reason to believe that the product they are purchasing will make its way to Anish Kapoor. The product page contains the following terms to accomplish this: Note: By adding this product to your cart you confirm that you are not Anish Kapoor, you are in no way affiliated to Anish Kapoor, you are not purchasing this item on behalf of Anish Kapoor or an associate of Anish Kapoor. To the best of your knowledge, information and belief this paint will not make its way into the hands of Anish Kapoor. | It isn't necessarily "illegal" (in the sense you are committing a crime) but you may be in violation of a verbal contract (which would fall under tort law). Let's take this a bit further. Perhaps Joe Schmoe gave you his debit card information so that you could make deposits for him and he said you could take $5 out for yourself for the trouble. This is a contract between you and Joe for a service. You can't extend Joe's offer to Jane Doe by saying "here is some debit card information, take $2.50 out for yourself". You have no right to extend your contract with Joe to somebody else. Now specifically for passwords it basically boils down to the same thing. Unless Joe gives you explicit permission to give that to somebody else, you can't just decide to unilaterally give what Joe gave you to somebody else. This may be different if Joe said "here, I'm buying you a subscription to service XYZ because you are a nice guy", this may be construed as a gift which transfers ownership. At that point you have control over what is or isn't done with the account. As another example let's say Joe let you borrow his car. You can't turn around and say to Jane, "here's a car you can use", Joe did not extend the offer to Jane, nor did Joe give you the right to extend the offer to another person. It's a moot point though, in the original context of this question, Netflix does restrict you from sharing your passwords "outside your household". Almost every paid service has some restriction against sharing with others. In the end Netflix may shut off Joe's account and Joe may sue you for damages, but you aren't going to be thrown in jail for this. This would be a civil case (tort) which you may be liable for monetary damages. | 18 USC Ch. 17 contains the laws against doing things to US currency and coins, and sale of currency is not included. So it is legal to set currency for an amount above or below face value, the former being more common. There might be some illegal aspect to the particular offer (money laundering, fraud – implying that they are real money, counterfeiting) but no law regulates the "sale" of US currency. |
Advantages of a law license other than the ability to practice law The late Professor Charlotte Striebel was a lawyer if that term means one who is licensed to practice law, but not a lawyer if that term means one who does practice law. She worked for decades as a professor of mathematics at the University of Minnesota and had no interest in practicing law, but for some reason she kept her license current. That means attending annual continuing legal education events, and paying license fees. Are there some advantages to keeping such a license without having any interest in working as a lawyer? | If you stay licensed, you have the option to enter the practice of law in the future with no administrative hassles. In contrast, if you let your license lapse, you could have to study for and take the bar exam over again, go through an arduous background check known as a character and fitness review (reviewing your entire adult life), and face months of delay and significant expenditures of money to practice law again. The character and fitness review also isn't just a time and money saver. Once you are admitted, you can only have your licensed revoked or suspended for doing something that violates professional ethics after you are admitted to practice. When you apply to the practice of law initially, you can be denied the right to practice law for bad characters for all manner of things in the broad discretion of the licensing officials. There are many kinds of conduct that can't be considered after you are admitted that can be used to deny you a license to practice law in the first place. Effectively, you are doing the continuing education courses and paying the fees to keep the option of returning to the profession trouble free, open. For example, I continue to be admitted to the practice of law in New York State, even though I no longer take cases there on a regular basis, so that in the one or two cases every few years that I do have in that state, I do not need to get a pro hac vice admission for a single case in that state, and so that if I ever want to relocate to New York State to practice law actively there, I can without a minimum of bureaucratic hurdles to doing so. Continuing education courses are also tax deductible in most cases. Even if I was no longer actively practicing in either of the states where I am admitted to the practice of law, keeping the licenses in force would also allow me to apply for admission to the practice of law in many other states on a streamlined basis available for currently licensed lawyers who have been admitted to practice for at least five years. Some states also allow you to go on "inactive" status with reduced fees and continuing education requirements, and then return to active practice again, by paying the fees and starting to take regular continuing education classes again, which makes this affordable during a period when you are exploring another career, considering an early retirement, or taking time off to raise kids. In New York State, lawyers also have the ability to conduct certain kinds of real estate transactions for their clients without a real estate broker's license. Once you are admitted to practice you are also grandfathered in if the requirements to be admitted to the practice of law change in the future. For example, suppose New York State required a one year apprenticeship before you could practice independently starting in 2021. If you were admitted to practice in 2020, you would be exempt from that requirement. | You've tagged this as both united-states and european-union, so this answer is about the United States. Before you can "license" someone to do something, you must first have the legal right to prevent them from doing it. Otherwise, your purported "license" is just a worthless piece of paper (technically, you might be able to sell those pieces of paper notwithstanding their lack of validity, so I suppose they wouldn't be completely worthless). If we imagine that the subject of a biography or autobiography wants to control the publication of that biography, there are a number of legal grounds that might be cited, depending on the circumstances: Copyright: The person who actually wrote the biography (who may or may not be the subject!) can prevent others from making copies or derivative works of it, as well as several other rights enumerated in 17 USC 106. Most publication agreements involve signing an exclusive license with the publisher. If the author has not signed such a license, then the biography is not going to be published in the first place. Regardless, copyright only exists once the work is "fixed in a tangible medium" (e.g. saved to a hard drive, written down on a piece of paper, etc.). If it's still "in your head," then you don't own anything. If the subject and author are different people, then the subject does not have any rights here at all; copyright belongs exclusively to the author. Furthermore, copyright only protects the individual work. It does not prevent someone else from writing a different biography from scratch, so long as this second biography is original and does not reuse any content from the first biography. The underlying facts belong to no one. Privacy rights are generally handled as a tort under state law. If the subject is a public figure (i.e. the sort of person who's likely to have a biography written about them) then privacy rights tend to be rather limited. However, they are not nonexistent, and invasion-of-privacy claims are occasionally raised, usually in cases where highly personal, sensitive information is disclosed against the will of the subject. This may also become relevant if the author of the biography obtains information in an illegal fashion such as by hacking or physical trespass. However, in most cases, the content would need to be pretty far beyond the pale before this would have a realistic chance of succeeding. Personality rights are usually considered an extension or variety of privacy rights. In general, they allow the subject to prevent their name from being associated with a commercial endeavor without their permission. However, it is likely that the First Amendment would bar the application of personality rights to a biography, unless the publisher tried to misrepresent a ghostwritten work as an autobiography without the consent of the subject. Libel is a tort under state law. Libel laws in the US are extremely limited, and the subject would need to establish at least all of the following in order to succeed (or else the claim is barred by the First Amendment): The defendant published a statement. A reasonable person would interpret that statement as factual (and not an opinion, puffery, etc.). The statement is materially false (i.e. the "gist or sting" of the statement is false, regardless of whether it is technically 100% accurate). The statement harmed the reputation of the plaintiff. The defendant knew the statement was false, or made no serious effort to verify it ("actual malice"). Not required unless the plaintiff is a public figure, but the subject of a biography probably will be a public figure. There may be additional requirements depending on the state, and the defendant will probably try to file an anti-SLAPP motion if state law allows for it. Of these four rights, copyright is by far the most commonly "licensed," followed by personality rights. Nobody gives out licenses to commit libel or invade their privacy. That leaves us with two ways of licensing your (auto)biography: Actually write it yourself, and sell it to a publishing company. You will give them a copyright license as part of the process (in exchange for royalties and an advance). Convince a publishing company to hire a ghostwriter for you, and then license your likeness to them. The public will be told that you "wrote" the book, and you will promote it in exactly the same way as if you did write it. Neither of these options will prevent someone else from coming along and writing their own biography about you, of course. | If you received a copy of a copyrighted work under a particular license in the past, that work is licensed to you under the terms of that license. If the copyright holder stops offering the work under BSD terms, that does not lessen the fact that you already did receive the work under BSD terms. The copyright holder may choose to stop distributing new copies to other people under the old license, but the old license grant offered to you in the past will persist, unless either the license expires, or the licencor explicitly revokes your license grant. The BSD license (and any OSI-approved license) does not have an expiration date, so we do not need to worry about the first possibility. A license can be revoked only if either the terms of the license explicitly allow the licencor to do so, or the license was granted in such a way that the licencor received no economic consideration for the license grant. The BSD license is silent on revocability, so we must see whether there is economic consideration involved. According to Jacobsen v. Katzer, a public open-source license grant may have economic consideration, even absent any exchange of money: Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. For example, program creators may generate market share for their programs by providing certain components free of charge. Similarly, a programmer or company may increase its national or international reputation by incubating open source projects. Improvement to a product can come rapidly and free of charge from an expert not even known to the copyright holder. (See also Are licenses irrevocable by default? on OpenSource.SE.) Thus, there is a strong possibility that there is consideration involved in your case, and the licencor may not be able to revoke the license already granted to you. | Short Answer The entire license could be ruled invalid and therefore unenforceable. Explanation Two legal principles at play in jimsug's answer might be: Vagueness Doctrine Overbreadth Doctrine Either or both of which might be sufficient for a judge to waive enforcement of any provisions that relate to the terms "good" or "evil." An interesting side effect of this might be that unless the principle of severability were applied to the JSlint license, then the license could be considered completely invalid due solely to the addition of the words "good" and "evil." A judge would have to affirmatively impose severability because the license itself does not assert it. | how would this differ between say ArXiv which is open access, and a publication that is pay-only, like Elsevier or Nature? It wouldn't. But if the equation is the creation of the author of some publication, as in the author is expressing some unique mathematical expression, obviously the publication should be referenced. But is referencing enough? Are there additional rights one must obtain from the publication and/or author in order to show this content? Laws of nature, including purported laws of nature, are not protected by copyright. So, usually, key equations in an academic paper aren't protected by copyright law. Referencing the work is important as a matter of academic ethics, but is legally irrelevant. Copying of exposition by the author beyond laws of nature is permitted as fair use if it is limited to quotations necessary for academic discussion and criticism, but copying of an entire work would not be permissible fair use in most cases and would constitute copyright infringement. Of course, there is a large gray area between those extremes. | Both Bob and Charles are liable for infringement in the US. The fact that Charles had no idea that Bob was an infringer is not a defense, but it mitigates the statutory damages consequences for him. Either party can negotiate with Alice after the fact for a license, and Alice can grant either party but not the other permission to copy. The terms of the license that Alice gives Bob could either allow CCo reposting, or some more restrictive redistribution right. If the license requires a notice prohibiting further redistribution and Bob omits that notification, Bob will have breached the terms of the license in omitting the notification, so we're back to square 1. If Alice fails to specify a no-redistribution notification condition on Bob's reposting, Alice may have granted an implied license to the world, a matter which has to be determined by the courts. | Lawyers are useful in litigation the way engineers are useful construction or doctors are useful in surgery The know what they’re doing and have done it many times before: you haven’t. In your particular situation your lawyer can advise you if you actually have a case worth pursuing and the best way to do so. In most jurisdictions lawyers cannot represent you in small claims court but they can handle your application and coach you in advance. As to your final question: lawyers are professionals and it’s frankly insulting to suggest that a professional would deliberately mislead for personal gain - the overwhelming majority won’t and the tiny fraction that will are criminals. | In modern usage, it is far better to replace a will then to create a codicil primarily because there is only one document to verify the veracity of. As you say, it would be just as easy to print off a new will. However, the ease of printing off a new one is a relatively recent technological development. When wills were typed on a typewriter or, in even earlier times, handwritten, the advantages of a codicil are much more apparent; particularly when you pay your lawyer by the hour. |
Can you get into trouble for not answering questions when talking to the police? https://www.youtube.com/watch?v=YWUx3-b0F_Y Can you get into trouble for not answering questions when talking to the police? Or is this a legit "cheat code" that can get you out of trouble? Which one is it? More specifically, will responding to any and every inquiry from a police office in the US with "I don't answer questions" and nothing more cause legal trouble for the person responding in this way? Will limiting oneself to such response avoid potential legal trouble? What are the legal consequences of acting in this way? | There are certain situations where the law may require you to provide some information -- particularly when you've been pulled over for a traffic violation -- but it is typically limited to basic identifying information. Beyond that, it is legally advantageous to refuse to answer questions. If you are doing so, though, you should explicitly invoke your Fifth Amendment right against self-incrimination, and your Sixth Amendment right to counsel. Invoking the Fifth prevents the police from using your refusal to answer as evidence, and invoking the Sixth requires the police to stop asking you questions. It may, however, be practically disadvantageous to refuse to answer questions, as there are cops who are just looking for a reason to act like a psychopath. | Any society that makes rules will make rules that generally favor the people in power. Police are an essential component of a system that is built to maintain power for the people who are powerful, and there are few incentives for politicians, prosecutors or judges to punish them for maintaining order, even when they do so in ways that most people would think are not civil. Anyone involved in creating the law therefore builds systems to protect themselves -- and each other -- from accountability. The police fail to meaningfully investigate themselves, the legislature erects barriers to accountability (Sec. 614.022, for instance), and the courts routinely provide them immunity for their wrongdoing. So yes, there is a difference in how our legal system treats law enforcement and how it treats everyone else. I don't know anyone with any experience in the law who would even try to pretend otherwise. | First off, you cannot booby trap your property, period. It is both illegal and tortious. But, as you noted, there are already questions/answers that deal with this issue. Sure enough, if the police get a no-knock search warrant, that in and of itself is the Court order allowing entry by any means necessary. When the officers, there by right of law, breach the outer perimeter and stop at the warnings, they will not be seeking any other court orders to have you allow them "safe entry". Their warrant gives them all the right they need, as probable cause of crime and violent intent or intent to destroy evidence was already presented to a judge. If, in real life, you actually put up signage or state explicitly that they're being forewarned that you intend to harm, trap, maim, or otherwise make it unsafe to enter; or that doing so will result in an attempt to destroy evidence, that is something they have already assumed (hence the seeking and granting of the no-knock vs. a regular search warrant). However, the signs in and of themselves are not protected speech, but rather overt threats, and that would put you in a very precarious position indeed. If the police get a "no knock" warrant (the most invasive, difficult to get warrants, whereby there is a grave risk of destruction of evidence or injury to persons), the police will ensure they have safe passage – they've come prepared for dangerous entry long before your signs, but once they see them, you could rest assured they will take them as they are intended: as a direct threat to their safety, and they will deploy a SWAT or other heavily armed entry team (who is usually there anyway for these dangerous entries). You could expect things like smoke/out canister and teargas, flash bangs, and heavily armed and well armored officers attempting to force you from your dwelling. Presumably, if you need to disarm traps to escape the situation, they can enter. Assuming you're home when they invade with chemical weapons, whether you come out or not, they will force you to disarm whatever booby trapping you may have in place that may destroy evidence, likely walking you in as their human shield in the event you're lying about any dangerous ones. That is probably your best case scenario. They may just decide to throw you through the perimeter once they get their hands on you, just to see what happens! If you don't exit and are home or if you are lucky enough to be out, the bomb squad, ATF, and SWAT will converge on your property in less than typical means. Because from your warning they can assume some incendiary or explosive device exists, bringing it into the jurisdiction of other agencies. If they cannot disarm the trap, they would send a robot in first to set it off, or cut through your roof, or knock down a wall – whatever it takes to get in without using a typical means of ingress/egress, so as not to chance your trap. Regardless, you can rest assured that they will get in, and you will pay for the trap you set for law enforcement. Further, to whatever charges you'd have been faced with from evidence flowing from the original warrant will now be added additional charges like attempted murder of a peace officer; if you have any roommates or known associates: conspiracy to do those things; attempted destruction of evidence, criminal interference with a police investigation ... all at a minimum. If anyone is actually harmed, your signage offers you no shield from criminal or tort liability, and you will be lucky to live through the experience once they get their hands on you. Police tend to not like being the targets of intentional maiming, dismemberment or death. You have to understand that, according to this hypothetical, you are intentionally trying to harm law enforcement, or destroy evidence of your dangerous criminal activity. These are not invaders, or intruders according to the law; they are the people whose job it is to enforce the laws, collect the evidence (if you weren't getting arrested pursuant to the fruits of the warrant, you certainly would be at that point). The signs themselves would make excellent exhibits in the coming case of State v. you. BTW: The only reason they have left John Joe Gray alone is that he knows the Henderson County Sheriff Ronny Brownlow, who has been told that the ATF, FBI, and State SWAT, would all be happy to enter and get or kill Mr. Gray if need be. Since the Sheriff never filed any federal charges, and has determined that he doesn't want to breach (and it's in his jurisdiction to determine this), the Sheriff, aware that Gray's entire family is holed up in the "compound", decided it's not worth going in. It's as well known as it is anomalous. When the police want in, and have the right to get in, they will get in. That Sheriff just decided it's not worthwhile. | Not necessarily. Your own statements and the statements of the officer would be legally sufficient to convict you. Also, your statement that you don't believe you are at fault is strongly at odds with a widely held interpretation of the traffic laws (not stated in the formal language of these statutes). The prevailing interpretation of the traffic laws is that you are always at fault if you rear end someone because you failed to maintain a safe distance, pretty much as a matter of strict liability and regardless of the circumstances, because a safe distance is almost by definition a distance that it is possible for you to come to a full stop from if the care in front of you suddenly comes to a stop for any reason. The only situation I can imagine where there wouldn't be liability for rear ending someone would be if you were at rest behind them at a stop light and they actively backed up into you. In practice, almost any judge and almost any jury, would convict you of failure to maintain a safe distance if you rear ended someone absent the most extraordinary of circumstances. I honestly don't know any lawyer or likely potential juror who wouldn't convict you under these circumstances with only the testimony of the police officer and your own testimony (which you would have to offer to have any shot at avoiding a conviction) to establish that you did indeed rear end someone. Police are allowed to lie to suspects of crimes, and often simply do not have an accurate understanding of how the legal system works. So, you are not entitled to rely on a statement made by a police officer. Of course, it is also certainly possible that his statement is consistent with local practice in your neighborhood traffic court. So, showing up to contest the charge might still make sense, and it wouldn't be uncommon to receive a plea bargain with fewer points against your license, just for showing up to court. | It can go either way. If detectives have been working to build a big conspiracy case against you, they might get charges filed before they roll up to arrest you. If a cop catches you mugging someone, they'll arrest you on the spot and charge you later. | Assuming that privilege applies, no Not all communications with your lawyer trigger privilege and if it doesn’t then the lawyer is not your lawyer and is under the same obligation to report as any other member of the public. If privilege does apply then they must keep your secrets. If they are defending you and you confess to the crime then they can: represent you if you plead guilty withdraw unless that would prejudice your defence continue to act providing that they do not: suggest someone else committed the offence set up a defence inconsistent with the confession they can: argue the prosecution has not made their case, that you are not guilty of the offence charged by reason of law, or argue for any other (non prohibited) reason that you should not be convicted. | You will still have to pay A ticket can be ammended if the state so chooses (they can look up what color and model your car is). The car is probably on video. The officer can testify if they wrote your car info down somewhere else. And if they identified you inside the car as the violator, the car's color hardly matters. The idea that minor mistakes or omissions on tickets can get you off is a myth. From an actual lawyer | According to the ACLU, there are certain questions you have to answer when entering the US, and in some states you may have to identify yourself when stopped and told to identify yourself. Nonimmigrant non-citizen may be required to answer questions about immigrant status posed by an immigration officer. Otherwise, you are not required to answer questions by police. A judge can order you to answer questions, but the police cannot. Also, "obstruction of justice" covers things such as destroying evidence, assaulting a process server, communicating with a juror, and can cover investigative demands by prosecutors, but not being uncooperative with police. |
Probate vs Surrogate Courts: whats the difference? In the US, and specifically New York state, what is the difference between a probate court and a surrogate court? | A "probate court", generically, is a court that handles probate cases. In many jurisdictions, the official name of the court that has this role is simply "Probate Court". New York State apparently thought that naming scheme was too straightforward, so in that state, the court that handles probate cases (and also adoptions) has instead the unusual name of "Surrogate's Court". I don't know why this is, but it's probably historical. Also oddly, this court handles adoptions as well. New York does not have any court with the official name of "Probate Court". | Huge difference between a car and a house. For example, at least in Pennsylvania no warrant is required to search a vehicle on public roads. In other states there are so many easy pretexts that you practically have little protection from a full vehicle search (although the pretext will have to withstand strict scrutiny if evidence found in a search is used to charge you with a crime). Your house, on the other hand, still enjoys very strong fourth-amendment protections: One of my favorite U.S. Supreme Court cases on the subject is Florida v. Jardines, in which SCOTUS ruled that even approaching the front door with a drug-sniffing dog without a warrant constituted an illegal search. (The majority opinion is worth reading for its illumination of current law on this question.) | is there a chance that that any of that still exists somewhere - a transcript/notes/etc from the Orphan's Court hearings, the auditor's report, and/or the transcript/notes/etc from the PA Supreme Court - anything with more detail than is found in the reported brief There are probably even odds that the judgment of the Orphan's Court remains, mostly likely in microfiche form in a file cabinet somewhere if it exists at all. There is an outside chance the the court filings in the case are still archived somewhere. Most states have destroyed them, but a few states, mostly in the East, have retained very old records of courts of probate jurisdiction which have been used by economic history researchers to estimate the amount and distribution and character of wealth in the early U.S. The odds that the transcript, exhibits in the case, the full trial court record that was considered in the case on appeal, or the judge's notes still exists is very low. Where would such records be stored, if they exist, such that I could request copies? In roughly the order of likelihood: The archives of the clerk's office of the successor court to the Orphan's Court. The state archivist's records. The historical records department of the local library that included the location of the Orphan's Court. The records of the historical society closest to the location of the Orphan's Court. The notes of the judge, if the case was notable enough, might be in the personal papers of the judge, if the judge was notable enough to have deposited his records. This would be most likely with a college or university that the judge attended, or a college or university near where the judge died, or a local library or local historical society near where the judge died or near where the judge lived most of his professional life. The name of the judge should be present in the appellate decision. This said, the likelihood that there is anything about this case in category 5 is remote. I would suggest beginning with a Google search of "Pennsylvania Orphans Court records" including the name of the relevant county (Philadelphia, in this case). One particularly notable link to these records is this one. This states: Probate matters in Philadelphia County are handled by the Orphans' Court and start when the county was created. In addition to wills and administrations, the Orphans' Court also handles: audits of accounts of executors, administrators, trustees, and guardians; distribution of estates; appointments of guardians; adoptions; appeals from the Register of Wills; inheritance tax appeals, and various petitions and motions. Online Probate Indexes . . . . 1683-1994 Pennsylvania Probate Records 1683-1994 at FamilySearch | OK, I talked to a lawyer (in Massachusetts) and these are the answers I got. One can draft a confidential exclusion letter to state wishes regarding excluding certain people from being guardians. In the letter you can explain in detail why you think somebody is unfit to be a guardian. Execute this document as you do for your will and tell your family that it exists so that they can access it if you die (or give them a copy). The advantage of a stand-alone document is that it is not public, differently from the will which is public. The lawyer also suggested to also have a separate stand-alone guardianship document (and so to not include the guardian section in the will). The reason is that a will can be executed only if somebody is dead. But if somebody is e.g. in a coma (or missing), he won't be able to take care of his children and yet his will would not be able to executed. A separate guardianship document would instead apply also in these situations thereby minimizing the chances that somebody, whom you do not consider fit, becomes a guardian of your children. | The will further states property shall be sold and offspring are to split the proceeds. However, the will does not specifically designate who inherits the property/deed. This is an instruction regarding who inherits the property. It means that the executor of the probate estate (in an official capacity), who takes title by operation of law upon appointment, is directed to sell the property rather than to distributed it in kind. Will there be legal or financial problems with a foreign executor? Not necessarily. Generally, the main issue is that a foreign executor must sign a document expressly submitting to the jurisdiction of the probate court when appointed in addition to other documents that are signed by all executors. Pre-death, in the will, would it be better to designate the American resident offspring as executor? Not necessarily. Hands on administration of the estate and dealing face to face with a local probate lawyer is easier for a resident of the state where the assets are located and the decedent resides, but in these days of telecommunications this isn't a decisive factor. The relative competencies of the prospective executors is more important. If both offspring agreed, can the overseas offspring easily transfer executorship to the American offspring, or will there be legal or financial consequences? Assuming that they are the only interested parties in the estate, they can do so. You can't be compelled to serve as an executor just because you are nominated by a will to do so. If one person declines to serve, the person with next highest priority which would likely be the other sibling, may apply to the probate court to be appointed. The main financial consequence is that typically, whoever does the job is entitled to reasonable compensation from the estate for their services. Would there be legal or financial deed ownership issues, since neither offspring specifically inherited the property? No. Could a court order the property to be auctioned out from under the offspring? If all interested parties agree, they can defy the will. The normal process, however, is for the executor to follow the will and to sell the property in a commercially reasonable manner, typically by engaging a real estate agent to handle the sale. If the executor fails to take action, and an interested party objects, it would be more common for a probate court to remove the executor and appoint another one, than to order a sale at auction, which would typically be a course of last resort. This said, under appropriate circumstances, the court of probate jurisdiction would have authority to order an auction of the house. Most commonly, a court order to sell a decedent's house at auction would arise when the decedent (i.e. the dead guy) only owned an undivided partial interest in the house (called a tenancy in common interest) and the non-deceased third party co-owner of the house (perhaps a brother or ex-wife of the decedent) declined to cooperate in selling it. If a court determines the overseas executor offspring receives the property deed, the overseas executor wants to remain executor but give deed to American offspring for easier selling of the property, would the property have to go through titling and closing costs for the transfer, and then again for property sale to a third party? This question reflects a fundamental misunderstanding about how probate works. Title to the property vests in the estate by operation of law upon the death of the decedent. The executor has authority, once appointed, to take actions such as signing a deed to a third-party buyer, on behalf of the estate. There is no intermediate closing and transfer of title to vest title to the property of the decedent in the name of the estate before it goes from the estate to the third party. The net proceeds of the sale to the third party (after costs of sale and prorations of things like property taxes and prepaid insurance) are then placed in a bank account for the estate and paid to the heirs after expenses of administration are paid. There is nothing that makes it significantly harder for an overseas executor to close than a domestic one. The title company handling the sale emails the deed (and any other paperwork that needs to be signed) to the executor. The executor prints the documents to be signed, signs the non-notarized documents, and signs the deed in the presence of his friendly neighborhood notary in the foreign country where the executor lives, who notarizes the deed. The executed deed, together with a document called an apostille proving that the notary is really a notary, is sent back to the title company (probably with a scanned copy by email and a hard paper copy following by express delivery). Coordinating time zones may be a pain depending on the location of the particular foreign country in question (but the closing does not have to happen for all parties at exact the same time), and if the overseas executor is someplace primitive and remote with no internet access or computers or printers or faxes and no notaries, that could be a problem. But there are increasingly few places like that in the world. | You may want to select a state where you have some sort of presence. According to this article, personal jurisdiction can be waived, but subject matter jurisdiction can not, and "for pragmatic reasons some states deny subject-matter jurisdiction to specific claims, such as those arising in other states". In other words, if nothing about you, the other party, or the case has any relation to the state, the court doesn't necessarily have to listen to the case. And if that happens, the provision about them submitting to the jurisdiction is worthless. Beyond that, are you OK with going to court in the location you select? Do you know whether all your terms and conditions are valid in that location? Do you know whether one place or another has more favorable interpretations of the laws, or more favorable local rules, when it comes to the types of disputes you are likely to have? You probably want a lawyer to help you decide. | In my experience, varying jurisdictions can and do differ as to the myriad ways these disputes are resolved. Contract law is one area where the judge has a lot of discretion. This is definitely true in state courts, even from judge to judge, and can even be true in the federal level-The 9th Circuit has some wildly different appellate decisions when compared to the 1st Circuit, and so on. I say this not to be argumentative, but to highlight the importance of careful and concise drafting that fully explicates the bargained for exchange, as there can be a vast amount of judicial subjectivity that goes into determining which rules pertain to certain situations. "Conflicting or competing clause" cases are now some of the most commonly litigated contract disputes. This is largely because the last 20 years has seen a huge influx of people "drafting" (more like piecing together) contracts without benefit of qualified counsel. This is particularly true because lay people do not generally create a specific insturment like an attorney would - from scratch, with definitions and terms specific to the transaction. Rather, they go online and find "form" or model contracts that they feel are close enough (which are almost always missing key components), and then they type in their own terms, or even write them in. Because this is so common, most jurisdictions follow the rule that hand written terms supersede pre-printed terms; likewise, type written terms will take precedence over pre-printed terms. Specific terms also carry more weight than general terms. Specific terms will usually be given precedence over general terms, as these are seen as creating a specific exception to the general terms. For example, if Clause A in your scenario said: Written notice must be provided at least five days in advance of (any) change... (leaving out "to price"), then clause B would prevail because it would be more specific than the more general term (A), which in my scene would pertain to any change whatsoever (this is assuming the whole of the agreement did not shed light on the issues more fully). In your hypothetical, these are both specific terms. In that case, the court would first examine the entire contract and all addendum, specs, plans, etc. when interpreting competing or conflicting clauses applying the fundamental principal that a contract should always be interpreted as a whole - not clause-by-clause - and not section-by-section. Contracts will often have numerous parts with portions incorporated specifically by reference, or numerous documents that may be integral to the transaction, If the parties agree to what constitutes the various parts of the contract (even if not incorporated) the entirety of the transactional documents may be considered by the trier of fact (and law). Once examined, if a proposed interpretation makes other portions of the global agreement meaningless, illogical or unenforceable, and another party's interpretation is in keeping with the document as a whole, that is the interpretation that will typically be adopted. Assuming this analysis doesn't work to resolve the issue, then the court would look to see if there is an order-of-precedence clause, which is a clause that lays out what parts of the contract / types of clauses take precedence over others (ex. written requirements take precendee over performance requirements, addendum hold less import than the signed agreement, schematics hold less import than addendum, and so on). Assuming this there is no order of precedence, the court will look first to see if the contract was negotiated back and forth, with terms being modified with each draft. If Yes, then the court will except extrinsic evidence (parole evidence) that goes to the intent of the parties bargained for exchange. If not, the contract term(s) will be construed against the drafter and in favor of the one who signed the others' instrument. So, as you can see, there is no clear answer to what seems to be a simple issue. This just goes to show: Lawyers seem expensive when you decide to hire them - Lawyers are expensive when you have to hire them, because you decided not to in the first place! | The standard practice is to send the opposing party -- or better yet, its attorney -- a preservation letter, also known as a litigation hold. The letter notifies the receiving party that the sender is contemplating litigation, which triggers the recipient's duty to retain relevant records. Google for "sample presevation letter" or "sample litigation hold" and you'll find plenty of examples. |
Are tow truck drivers allowed to be armed while working? Florida Tow Truck Driver kills man while trying to repossess a car. Are tow truck drivers allowed to be armed while repossessing a car? Does any other state allow tow truck drivers to be armed? | Tow truck drivers in general might be allowed to carry firearms if they have a concealed weapons license, but the shooter in the case at hand wasn't merely a tow truck driver. He was actually repossessing a car, and therefore under Florida Statutes 493.6101(21) he was acting as a recovery agent. Under 493.6401 he was therefore required to hold a Class "R" recovery agent license. And under 493.6118(1)(x)(9), Class "R" license holders are prohibited from: Carrying any weapon or firearm when he or she is on private property and performing duties under his or her license whether or not he or she is licensed pursuant to s. 790.06. The story says that the car was in a driveway, so it sounds like he was on private property. This would be grounds for discipline under 493.6118(2), up to and including revocation of his license. It could be that criminal penalties also apply, but I have not found them so far. | In the US, it is illegal to sell screwdrivers to Gaza without a license, see 31 CFR 595.409. There are numerous rules pertaining to the Palestinian Authority staring here. Dept. of State has a partial list of countries and their associated restrictions, if you want "like Gaza", and note that they warn you that this is not a complete list. If you are specifically interested in weapons-related restrictions, the US Munitions List is here. There is no generic "anti-drone" system, so you would have to look at the specifics of a system to see if it is on the restricted list, or not. | Yes, barring any statutory prohibitions against such a rule. I would be very surprised if any existed. They don't exist in any jurisdiction I'm familiar with. Look up the local by-laws to be sure. | The statute in question is section 26708 (13)(B): A vehicle equipped with a video event recorder shall have a notice posted in a visible location which states that a passenger's conversation may be recorded. It doesn't require it be visible to all passengers and doesn't make any provision for visually impaired passengers. I am not licenced to practice in California but know of no cases clarifying how "visible" the notice needs to be. I wouldn't suggest trying to hide the notice, though. | No. Your evidence of registration of the car would suffice to show that you are not receiving stolen property, although you are correct that not informing the police that it has been recovered could get you pulled over if the car has been reported as stolen. Given the circumstances of the question, I don't address the means by which the car is repossessed. Not every use of force would be justified to secure the return of the stolen car. Reporting the theft and recover to the police would also make it easier for you to make an insurance claim. Repossession of a car stolen by fraud (tricking you into signing over the car title to them in exchange for Monopoly money in an envelope that you don't check until after they are gone, or for a forged check), which is then sold to a bona fide third party individual for value, however, might constitute car theft. | In most states you are required to pull over to the side of the road and come to a stop for any vehicle displaying flashing red and/or blue lights, whether oncoming or overtaking. If you don't you are guilty of a moving violation.1 If the vehicle with the lights then pulls in behind you the same law forbids you from moving your vehicle. So that's the law for being pulled over by an unmarked car. If you are concerned that you were stopped in this manner by someone not authorized to do so (police impersonators have been known to do this) you should call 911 and get the dispatcher to confirm whether the apparent emergency vehicle is legitimate. In general, if you fear for your safety, you can stay in your car and ask to be escorted to a known police station before exposing yourself. E.g., here's the advice of one Ohio State Highway Patrolman: If the area where you stop looks desolate, Miller said you don't have to stop there. In fact, he said, "Proceed to that well lit area or a public building, the fire department, hospital." [B]efore you even stop, if you don't feel safe, "Use your cell phone to dial 9-1-1 and talk to the dispatcher, let her know what's going on, give your location and have her guide you as to what she wants you to do." There are some jurisdictions that restrict the use of "unmarked" cars by police. | It would not work. There is apparently a common misconception in Georgia that this would be the case, based on Article IX, Section II, Paragraph III (b)(1) of the Georgia constitution, which says: No county may exercise any of the powers listed in subparagraph (a) of this Paragraph [including police protection] or provide any service listed therein inside the boundaries of any municipality or any other county except by contract with the municipality or county affected. What many people miss is the clause right before that: "Unless otherwise provided by law." Georgia courts have held that the law does provide otherwise when pursuing someone for a traffic offense: The plaintiff contends that when the collision occurred, the policeman-deputy sheriff had no authority to be pursuing the Mitchell car because he was outside the county in which he had a power of arrest. While ordinarily a peace officer has power of arrest only in the territory of the governmental unit by which he was appointed, there are two exceptions to the rule present in this case. Code Ann. s 92A-509, which deals with arrests for traffic offenses, provides by implication that certain officers (including deputy sheriffs) have arrest powers for these offenses outside their appointed territories. City of Winterville v. Strickland, 127 Ga. App. 716, 718, 194 S.E.2d 623, 625 (1972). What that case decided in 1972, the principle was in place well before the boys began their hijinks. I don't know of any state where the law is different, though the answer would be different if the boys crossed into another state. | Since there are cases where it is legal to break into a car, is it legal to publish a guide on how to break into a car online? It is legal to publish this guide. Indeed, it is legal to do so even if there are no cases where it is legal to do so. Does it need to have a disclaimer saying to comply with all applicable laws? No. Could the author be held responsible if someone uses the instructions to illegally break into a car? Generally not. I could imagine that there might be some very specific and exceptional fact pattern where it might, but that would be the rare exception. But see man sentenced to twenty-years in prison after pledging support to ISIS and uploading a bomb making video related to that pledge. |
Is it a crime to "steal" your own money from a bank? It is in the news that it has become a thing to stage a bank "robbery" to get access to ones own money in Lebanon. While these have involved things that are undoubtedly crimes (such as brandishing a toy gun, and pouring gasoline and threatened to set it on fire), if one had an opportunity to take your money without the banks permission but not committing any other crime (perhaps as a result of another incident, see picture), would that be illegal? Reason for heists Lebanon has been reeling from a worsening economic meltdown since 2019, plunging 80 percent of its population – about three million people – below the poverty line, according to the United Nations. Since 2019, Lebanese banks gradually imposed draconian controls on deposits, effectively locking millions of customers out of their foreign currency savings. “Every time you want to withdraw money, it would be at a rate much lower than the market value,” said Al Jazeera’s Zeina Khodr. “For example, if you want to withdraw $700, they gave you $200. So that’s a de facto haircut.” Any jurisdiction would be interesting, this is occurring in Lebanon but one could imagine it happening anywhere if a financial crisis occurs. | The physical cash in the bank is not your property, at least not in US law (according to Scalia). It becomes your property when the withdrawal is performed by some means specified in your contract. A deposit gives you a contractual right to demand money from the bank. Bank robbery is a crime. Having money deposited with the bank doesn't change that. The only possible chance a robber has at trial is jury nullification. I haven't found records for that in Lebanon, but it does have jury trials. Impartial review classifies Lebanon's justice system as somewhat corrupt, but generally compliant with the basic principles. So it might be possible to get away with it at trial, but a very long shot. | It's illegal under US law. 18 U.S. Code § 478 says: Whoever, within the United States, with intent to defraud, falsely makes, alters, forges, or counterfeits any bond, certificate, obligation, or other security of any foreign government, purporting to be or in imitation of any such security issued under the authority of such foreign government, or any treasury note, bill, or promise to pay, lawfully issued by such foreign government and intended to circulate as money, shall be fined under this title or imprisoned not more than 20 years, or both. There are several similar laws for similar crimes: § 479 - Uttering counterfeit foreign obligations or securities § 480 - Possessing counterfeit foreign obligations or securities § 481 - Plates, stones, or analog, digital, or electronic images for counterfeiting foreign obligations or securities § 482 - Foreign bank notes § 483 - Uttering counterfeit foreign bank notes § 488 - Making or possessing counterfeit dies for foreign coins § 502 - Postage and revenue stamps of foreign governments According to version of the South Sudan penal code I was able to find, counterfeiting is illegal. But if I understand section 7 correctly (which I might not), most counterfeiting is not prosecutable under South Sudan law if it is not done in South Sudan. Having a counterfeit revenue stamp, however, would be, as would fraudulently altering a coin. Given that there's not an extradition treaty and that it's already illegal under US law, this probably doesn't matter much, though | Yes, this can land you in jail, no matter what In France, per article 226-1 du code pénal recording without consent may be punished by one year in jail and 45000€ fine. Any recording without authorization of all parties involved (including the owners or administrators of buildings recorded either outside or inside due to copyright of the architectural image) can also land you in legal trouble either criminally or in civil court. The consent is implied if the parties involved knew about it and had means to deny authorization but didn't, but mind that any recording, secret or not, can be considered non consented, which probably discourage anyone from recording anything in France. However you can still show these images obtained illegally in a court and the judge has the right to declare such recording justified (no statute about this, it is totally up to the judge) and thus allow you to use it as evidence both in civil or penal matters. It does not, however, protects you from being sued latter for the exposure of the recorded party, but the acceptance as evidence by a judge may serve as defense. This means that many forms of recording in France, including tourists taking pictures of the Eiffel tower, obviously without authorization of the administrators of the tower or any potential passer-by, is in fact committing a crime, although obviously the law in simply not enforced for these cases. However, if a filmmaker records the Eiffel Tower and makes millions in box office, the tower administration will probably go to the trouble of collecting some money threatening to press charges if not paid. | This is a rather elaborate version of receiving stolen property. It is a crime because you know that the property is not yours and you know who it belongs to. The fact that funds were returned mitigates the punishment that might be imposed, but disgorgement of profits as well as principal would be a typical criminal restitution in such a case. A prosecutor could decline to press charges (and often would decline to do so), but would have the authority to do so. An analogous case that comes up more frequently is when an attorney takes client funds out of his trust account (either accidentally or intentionally) and then uses the funds in a way that produces a profit or avoids, for example, a late payment penalty, and then returns the funds improperly withdrawn from the trust account. This is still conduct for which attorneys are routinely disbarred and prosecuted criminally. Even if the person didn't know that the money belonged to someone else when it was used, the true owner of the money could sue for unjust enrichment for both the funds and the proceeds from the funds. For example, if funds were accidentally deposited in your bank account rather than the correct one due to a transposition of numbers in the account number, and you didn't notice this error, you would have liability to return not just the accidentally deposited funds, but also the profits from those funds, because both would be unjust enrichment. But, in an accidental case where there was no knowledge that the funds were wrongfully placed in your account, you could deduct from the amount to be returned any banking charges you incurred with respect to the transactions and it would not be a crime. | It is legal. 18 USC Chapter 17 contains laws regarding what you can/cannot do with US legal tender. It doesn't mention anything about buying, or selling US tender at or above the face value. And there are several businesses in the USA that do this (coin exchanges which purchase coins at less then face value and give you dollar bills in return, etc...). However I would be concerned that your action might look like money laundering to the customs official on your way back home. Or on the way going to the foreign country for that matter. Which could be very bad for you. I would talk to a lawyer about this. | Yes, and sometimes it even makes perfect sense that such an activity would be a crime. For many crimes, attempting the crime is a crime. The attempt may have no actual effect on any person or property, but is still illegal. According to 16 U.S. Code § 1538(a)(1)(C) it is illegal to kill an endangered species on the high seas. A whale in international waters cannot really be considered anyone's "property" (and since it's in international waters there can't even be some weird theory of it being the government's property) but it is still illegal. 18 U.S. Code § 700 purports to prohibit the desecration of a flag, although this was found unconstitutional. 18 U.S. Code § 708 makes it a crime to commercially use the coat of arms of the Swiss Confederation, for some reason. And 18 U.S. Code § 711a makes it a crime to use the slogan "Give a Hoot, Don’t Pollute" for profit, except as authorized. (But maybe that sort of thing counts as intellectual property.) 18 U.S. Code § 342 makes it a crime to operate a passenger train under the influence of alcohol or drugs. This really only affects people and property if the train is driven improperly as a result; if you make it safely, you'd probably never even know. But the driver would still be facing up to 15 years in prison if he was caught doing that. And finally, according to A Crime a Day on Twitter: 33 USC §1232(b), 33 CFR §401.101 & §401.94(a) make it a federal crime to violate the St. Lawrence Seaway regulations by not having a copy of the St. Lawrence Seaway regulations while you pass through the St. Lawrence Seaway. | As far as I can tell, that would be a criminal act. Georgia law § 16-8-2 - Theft by taking says: A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated. Georgia law § 16-7-21. Criminal trespass says: A person commits the offense of criminal trespass when he or she intentionally damages any property of another without consent of that other person and the damage thereto is $500.00 or less or knowingly and maliciously interferes with the possession or use of the property of another person without consent of that person. If you know the store is refusing to sell you a product, and you eat that product anyway, that is theft. If you don't eat the food but just open it, that's still criminal trespass. Even if you're leaving them money, you're still taking and/or damaging their property without their consent. Additionally, if they told you to leave, and you refused and instead started opening food items, you might be guilty of trespassing in the more traditional sense: A person commits the offense of criminal trespass when he or she knowingly and without authority... Remains upon the land or premises of another person... after receiving notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant to depart. As to whether it was legal to give the candy to your daughter before the disagreement and refusal of service, that may depend on what the standard practice is. It seems to me that in most clothing stores you're supposed to pay before consuming the product - this isn't a sit-down restaurant. But if there's nothing else going on, I think the average store would refrain from calling the police if the person did not try to hide the evidence (for example, by stuffing the empty box on a shelf) and if the merchandise was paid for before the person attempted to leave the store, regardless of whether it's technically illegal. | Yes Yes, telling lies is generally not unlawful, much less criminal, as long as you did not intend to profit by them, and there is no specific law violated (for example it is a crime to lie to a law enforcement officer about matters materiel to an ongoing investigation). Attempting to get the scammer to send you money on false pretenses, however morally justified some would consider it, is likely to constitute fraud. |
Is it required to provide one's name and date of birth when reporting a crime to the police? Naturally when the police speak with one they like to ask for one's name and date of birth. And one would probably expect the police reporting procedures as a matter of course to require date of birth and name as a prerequisite of accepting the crime report for example the metropolitan polices online crime reporting portal may well be programmed like this. But what is the legal situation? Are they required to accept and look into a crime complaint/report made by a member of the public who declines to identify themselves? | Police are not required to “look into” any report What the police choose to investigate is solely at their discretion irrespective of the number or quality of reports on the matter. You do not have to give your name You can report anonymously if you like. It does make investigation more difficult because the police cannot follow up for further information and may influence their decision on whether to investigate. | In the U.S. there is no law that requires you to ever say a word to a law enforcement officer, and lawyers generally encourage you to minimize what you communicate to them anyway. I can't think of any situation where a request for information could not be demanded in writing. As a practical matter, in some situations you will probably be subject to some extra scrutiny and inconvenience: E.g., in a stop-and-identify situation, you could hand the officer a note saying, "Please make any requests for information from me in writing." The officer may infer that you have some disability, but if he does not (or discovers you don't) he may get irritated enough to subject you to harassment for "contempt of cop". Of course, if you can understand him, you are still required to obey an officer's lawful orders no matter how they are communicated. But "speak" is not a lawful order. | Yes, a person can be charged with the murder of person or persons unknown The reason that police are really keen to identify the victim include (in no particular order): It will probably clear up a missing persons case; So they can inform the next-of-kin; Being able to place a named person who loved and was loved before a jury rather than nameless corpse increases the chance of conviction - all else being equal. | According to the ACLU, there are certain questions you have to answer when entering the US, and in some states you may have to identify yourself when stopped and told to identify yourself. Nonimmigrant non-citizen may be required to answer questions about immigrant status posed by an immigration officer. Otherwise, you are not required to answer questions by police. A judge can order you to answer questions, but the police cannot. Also, "obstruction of justice" covers things such as destroying evidence, assaulting a process server, communicating with a juror, and can cover investigative demands by prosecutors, but not being uncooperative with police. | If you state, to a third person, that Joe has performed a criminal act then that is defamation and you can be sued. Unless it is true. However, if you are relying on the truth as a defence you will need to provide evidence that it is. At the moment you lack: a criminal conviction of Joe any physical evidence against Joe any personal knowledge that Joe has committed these acts. All you have, is second hand rumours that this has happened to 5 women, some of whom have reported it to you in person. This is called hearsay and it is not evidence. It may be true, it probably is true - you can't prove it's true and in court, that's all that matters. If you were sued your only possible defence is to call these women to give the evidence they are unwilling to give - are you willing to betray their confidence to that extent? | No That is nothing but fiction. Assuming that this is in the US, the police would (probably, there are some exceptions) have had to deliver the well-known "Miranda" warnings, that the suspect has the right to silence, the right to consult a lawyer, and the right to have a free lawyer if unable to afford one, and that statements may be used against the subject. If, after those warnings, the suspect chooses to confess, or to make a statement, that confession or statement would be fully admissible, even if the suspect did not have a lawyer present, unless there was some other reason for the statement to be excluded. No such reason is mentioned in the question. It is simply not the case in the US that a confession is excluded just because no lawyer was present, nor is that the law anywhere that I know of. If the police failed to give the warnings when they were required, then any statements or confessions would be excluded. The decision in Miranda v. Arizona, 384 U.S. 436 (1966) says: law enforcement officials took the defendant into custody and interrogated him in a police station for the purpose of obtaining a confession. The police did not effectively advise him of his right to remain silent or of his right to consult with his attorney. Rather, they confronted him with an alleged accomplice who accused him of having perpetrated a murder. When the defendant denied the accusation and said "I didn't shoot Manuel, you did it," they handcuffed him and took him to an interrogation room. There, while handcuffed and standing, he was questioned for four hours until he confessed. During this interrogation, the police denied his request to speak to his attorney, and they prevented his retained attorney, who had come to the police station, from consulting with him. At his trial, the State, over his objection, introduced the confession against him. We held that the statements thus made were constitutionally inadmissible. ... the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [Footnote 4] As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. That tells you exactly what the police are forbidden to do. Nowhere does it say that a lawyer must be present. Indeed it says the opposite: The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. That means that s/he can confess after being warned, and such confession would be admissible, provided that s/he knew and understood those rights. | There is no requirement about "data" in the GDPR, so provided this is just "data", no. An empty form with fields for personal data contains no personal data. On the other hand, if the form is filled in by the user with personal data (as defined in GDPR article 4), and you receive a copy of the filled in form and process these personal data (as defined in GDPR article 4) - then the answer is: Yes. However, if you do not process the personal data (i.e. the form is just printed out on paper and filled in with a pen, and nobody except the data subject has access to the piece of paper with the filled in form - then the answer again is "no"). | Not disclosing transgender identity is not a crime of any kind, not rape, not fraud, not anything else. There is really no qualification to this statement. There is pretty much no plausible scenario in which concealing a transgender identity leads to liability for fraud of any kind and this never constitutes rape by deception. What is a crime and is regularly prosecuted, is retaliating against the person or property of someone who they discover is transgender while having sex. Incidents like these happen with some frequency and they alway create criminal liability for the person retaliating and never for the transgender individual in the cases where the transgender individual isn't killed (dozens of time each year in the U.S. the transgender individual is killed in a situation like this one). |
Principles to resolve ambiguity in a contract The problem of ambiguities in a contract is so old that there must be general principles to resolve them. What are the main such principles, and how are they named (in Latin, English, or French)? I vaguely remember that who wrote the contract bears the consequences of an ambiguity, to some degree. But I lack a name for that. Also is there some rule that early clauses beat later ones, unless the later explicitly is an exception to the former? I'm a party in a French contract, with disputes to be brought to a designated "Tribunal de Commerce", so it matters if the principle is recognized there. If I can be that specific: the conflict is between a first clause defining how electricity pricing evolves until some specifically laid out condition is met (which is not met), and a later clause allowing change of pricing method by the supplier with a one month notice. Also, clauses governing the termination of contract are asymmetrical, with the supplier explicitly having limited termination rights (basically, fault of the customer), which in my opinion makes unlimited change of pricing method too easy an escape for the supplier. I could link to the contract (which is public), but it's in French, and I fear this is way off-topic. | Here is a substantial collection of interpretive canons; this article discusses rules vs. canons. This article discusses contract interpretation from both the perspectives of drafting and litigating. These are all from the perspective of common law systems. This article (in English) and this chapter (English, paywall) reminds us that French contract law is different, to which I would add this which focuses on the French subjective theory of contracts – starkly distinct from the common law theory. This page (en français) will probably be of most interest to you. The 2016 modification to the civil code added art. 1190 (and other articles) which says Dans le doute, le contrat de gré à gré s'interprète contre le créancier et en faveur du débiteur, et le contrat d'adhésion contre celui qui l'a proposé which is contra proferentem. The Latin name is not officially assigned to this law, and being a new addition to French law, it's too early to tell if it will be so named in French legal practice. | No Contracts are not bound by due process. Due process is a rule of how a lawsuit has to be handled, not how a contract is to be handled. All the Due Process clauses in the US constitution simply don't apply. The only things that apply are the contract language, and the underlying/overwriting laws. If your contract stipulates that it is terminated by winning a coin flip against the other party, that's fine. If it stipulates, that you have to find 15 people supporting you in terminating the contract, that's fine. If it states that the other party can terminate for any and all reasons, including no reason, that's what the contract says, and fine. The contract would have to establish that you actually have a process, and how it is handled. My hypothesis is that these common practices combined with the plain language of the TOS of these social media platforms that grant complete autonomous impunity to the platform[...] This part is correct. They have the complete impunity because of how the contract is written. However, that does not make the contract illusory: you can decide not to agree to it and not go to the place, so it is mutual acceptance. Both sides are bound to perform something until the contract is terminated. An illusory contract would be that Alice gets 2000 USD for nothing (only one side performs). But both sides perform. The contract is to follow the TOS in exchange for site access. Both sides offer something: access in exchange for adherence to rules. The claim of non-mutuality is frivolous: If you claim "I don't agree to the TOS and contract", you can't at the same time get the benefits of the contract either: you signed the contract to follow the TOS in exchange to access the site, and if you don't want to follow the TOS, you have to terminate the contract and can't access the site. You can't eat your cake and have it too. Also, there is a severability clause, which is valid: even if a clause would be illegal, it would be replaced by the closest legal clause, overwritten by the legal minimum, or removed, whichever is the least impact. The rest of the TOS is untouched and fully valid. Your conclusion is wrong and meritless. | You're thinking of "unconscionability." In the United States, the general rule is that a contract provision will not be deemed unenforceable for unconscionability unless it is both procedurally and substantively unfair. A provision is considered procedurally unfair if it results from some sort of unfair asymmetry in bargaining positions. This could include situations where a party was acting under duress, had a diminished mental capacity, or unequal experience in the . A provision may be considered substantively unfair if it imposes disproportinately unfavorable terms on one party, perhaps by imposing costs far out of line with market prices, or by allocating all risk to that party. If the agreement is not both procedurally and substantively unconscionable, it won't be voided. So the Google TOS may be procedurally unfair because Google's market position gives it disproportionate bargaining power, but because they don't really impose any serious costs on you, they aren't unconscionable. Similarly, a contract provision requiring you to give me your house if you ever forget to turn off the porch lights at night wouldn't be unconscionable if it was agreed to after lengthy negotiations between our lawyers. | You cannot In a conflict between written and oral terms of a contract, the written terms prevail. In any event, by you utterance you have not accepted the contract; you have made a counter-offer which the other party has not accepted and have then gone on to accept their original offer. You would need the written agreement of the other party that they accept your terms and that they understand that clicking the “I accept” is not an acceptance of their terms but merely a means of completing the technical procedure. | This is actually pretty standard. You have a contract with a business to provide some service, and you get a bargain on the price of the service as long as you stay with them for some period, such as 2 years. You could get the 'pay as you go' option which doesn't have a termination fee, but that costs more if you are sure you can commit to what you signed up for, for that period. So it's not that you can't terminate the contract, it's that you can't just walk away from your obligation (what they call a "minimum term agreement"), cost-free. The early-termination fee is part of the cost of moving. You have to look in the Legal Agreements & Contract part of Account Details on your account to get the specific agreement that you are bound by. Generally, you are subject to that fee, unless the subscriber dies, or is in the military and is shipped out. You can also transfer your service from area to area – I assume you either are moving to an area without Xfinity service, or you elected to not use Xfinity in that location. It is legal for a business to put their business interest above that of a customer, even in the case of regulated "utilities". | But even then, to my understanding, a contract can't prohibit a party from seeking legal remedies. You are mistaken. A contract settling a bona fide dispute regarding people's legal rights can mutually (or unilaterally for that matter) release or waive their legal rights. In fact, a waiver or release of rights is routinely a part of a settlement agreement. Hundreds of thousands, if not millions, of such agreements are entered into every year and they are almost always enforced. Sometimes, but not always, a settlement agreement will also call for a dismissal of a case with prejudice, which (roughly) means a dismissal that prohibits refiling a case involving the same subject matter. | I don't know of a specific legal term but such clauses are quite common in contracts which consist of more than one document. The English words "priority", "prevail" and "precedence" have the meaning you want, however, "precedence" runs the risk of being confused with "precedent" which does have a very specific legal meaning. A clause similar to: If there is any inconsistency or ambiguity between the English and Japanese language versions of the contract, the English version shall prevail. You need to make very sure that this clause can be translated unambiguously into Japanese! | No: "meeting of the minds" (also known as consensus ad idem) is not about what the parties actually subjectively understood or wanted. For contract formation, consensus ad idem only requires that it appears to an objective reasonable person that the two parties were assenting to the terms of the agreement. See generally, Westlaw Canada, "Contract: I.2: Consensus Ad Idem"; see also Cornell Law School, Legal Information Institute, "Meeting of the Minds." "[I]n contractual interpretation, the goal of the exercise is to ascertain the objective intent of the parties (Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at para. 49). "Evidence of one party’s subjective intention has no independent place in this determination" (Eli Lilly & Co. v. Novopharm Ltd., [1998] 2 S.C.R. 129 at para. 54). It is important to note that consensus ad idem is an objective, not a subjective test. As noted by the Alberta Court of Appeal in Ron Ghitter Property Consultants Ltd. v. Beaver Lumber Company Limited, 2003 ABCA 221, at para. 9, the test is whether “it is clear to the objective reasonable bystander, in light of all the material facts, that the parties intended to contract and the essential terms of that contract can be determined with a reasonable degree of certainty.” (Silver Eagle Management Inc. v. Onoway (Town), 2011 ABQB 139 at para. 60). Though the courts now have clearly adopted an objective approach to the analysis of contract, they occasionally use language that suggests that what is subjectively in the minds of the parties is important. It is sometimes said that there has to be a consensus ad idem (in Latin, literally “agreement to the same thing”) or that the parties “minds have to be at one”. Statements like this are misleading. No legal system can require that there be an actual “meeting of the minds”, for that would provide too much of an incentive to those who would like to contract with their “fingers crossed”. The requirement that a subjective agreement exist would permit one party to stay with a contract only so long as it suited its convenience; when it did not, the party could claim that it had never really agreed to the other’s terms. (MacNeil v. Dana Canada Corporation, 2008 CanLII 35689 (ON SC), at para 13, quoting Swan, Reiter & Bala, Contracts: Cases, Notes & Materials). |
What is - and isn't - "harassment" "alarm" and "distress"? Certain controversial and seemingly ill defined and subjective provisions like s4a or S5 public order offences, or anti social Behaviour legislation rely on terms like harassment alarm and distress. These terms seem to inherently lend themselves to being innocently or willfully misunderstood by police in the field and gives them wide latitude to police people's behaviour and expressions in public. Surely these fuzzily defined terms must have come under scrutiny and challenge in the courts somewhere and courts must have clarified them to limit their scope of restriction upon people's freedom. What exists in the way of narrowing down the definitions of these controversial terms? Must the distress be severe over a certain threshold criteria to qualify? Must alarm encompass a realistic fear of actual injury? Must harassment specifically be a series of multiple acts over a certain period of time? And what of the question of reasonableness? My grandma might be shocked and morally disgusted at me not wearing a shirt, but most people of my generation wouldn't be. Whose sensibilities then are reasonable? In summary it seems that anything could be deemed by someone to be antisocial behaviour or to be "reasonably causing" "harassment alarm or distress" to another person/group/household. What limits are there to curtail this potentially boundless and abuse-prone breadth of reach? | Harassment, alarm and distress are for the trier of fact to define That is, whether particular behaviour in a particular case amounts to harassment, alarm or distress is a question of fact, not law. That is, it is for the trier of fact (jury or judge as applicable) to consider the evidence and decide if the prosecution has proved beyond reasonable doubt (another term they must define for themselves) the actions of the defendant amounted to harassment, alarm or distress within the context of the crime charged. The Crown Prosecution Service has this guide to help decide if charges should be brought. With reference to s5 of the Public Order Act (s4A is a more severe version of this crime): Disorderly behaviour does not require any element of violence, actual or threatened; and it includes conduct that is not necessarily threatening or abusive. It is not necessary to prove any feeling of insecurity, in an apprehensive sense, on the part of a member of the public (Chambers and Edwards v DPP [1995] Crim LR 896). There is a defence of reasonableness to these crimes and that, too, is for the trier of fact to determine using the legally objective test: Hammond v DPP [2004] EWHC 69 (Admin): It was open to justices to find that signs referring to homosexuality and lesbianism as immoral were “insulting” and, having taken into account the defendant’s rights under Articles 9 and 10, to find that his behaviour in displaying them was not reasonable Gough v DPP [2013] EWHC 3267 (The naked rambler case) The District Judge had been entitled to find that the defendant’s conduct in walking through a crowded street was “disorderly” and that prosecution was a proportionate response which did not violate his rights under Article 10. NB both the above cases were decided before the amendment to the Act which removed the “insulting” limb under section 5. | In the third of your sources (Harassment act, section 5), near the end, it says: If the defendant breaches an order under section 5 or 5A of the PHA 1997 without reasonable excuse, she/he will be guilty of a criminal offence (section 5(5) PHA 1997). The penalty that may be imposed upon breach of the new section 5A restraining order is identical to that which can be imposed under section 5. (Emphasis added) In Item 2 of the first source (darlingtons.com) it says: If a person disobeys the terms of an Order of Court which carries a penal notice, he will have breached the Injunction. As to whether such a breach constitutes contempt, will be considered on a case-by case approach according to the particular facts of the given case. The seriousness of the breach, and the question as to whether such action undermined or ‘laughed in the face of the Court Order’ so as to be contemptuous, will be determined by the Court. In item three of this same source it says: If the Court considers that the breach was intended to impede or prejudice the administration of justice, the Court has power to commit a person to prison, and/or impose a fine. In short it appears that the court is expected to use judgement on a case-by-case basis. Violation of a restraining order because the person subject to the order had to provide emergency medical or fire or rescue services, or otherwise provide needed assistance in an emergency, with no improper motive, would, I should think, not lead to any penalty for contempt. US practice also expects a court to exercise judgement when sentencing for contempt. | england-and-wales Initially, one should comply with the officer's instructions as he has the power under statutory Stop & Search powers to detain someone for the purpose of the search (discussed here). Failure to do so may be an offence. If, subsequently, one considers the search and detention was unlawful, the first port of call is to lodge a complaint with the relevant police force who - depending on the circumstances - may escalate the complaint to the Independent Office for Police Conduct IOPC. You can complain directly to the police/other organisation (see ‘Who can I complain about?’ below for a list of the other organisations) or via the IOPC. If you complain via the IOPC, your complaint will be sent direct to the organisation involved. They will assess your complaint and contact you about how it will be handled. The IOPC will not be involved with this initial assessment of your complaint. If the complaint is found to be valid, then any offence committed by not complying with the office would (in all probability) be overturned on appeal. As well as any compensation awarded by the court, the Chief Constable may consider making an ex gratia payment (mentioned here). Note that there is no obligation to do anything if the interaction falls within the Stop & Account provisions. | If you wrote for example "I had thoughts about taking the axe from my garage and decapitating my neighbour", and your neighbour read that, he would reasonably be worried and contact the police. I would take that as a death threat, and the death threat is by itself illegal. There would be some range where I could claim that you were making a death threat and making excuses to avoid legal responsibility. You can have all the thoughs you like, you can write them into your private diary where nobody can read them, but as soon as you publish it, it becomes "speech" and some speech is illegal. | In general, you do not have civil recourse against the government for (lawful) legal process that you are the victim of. "Counterclaim" would only be applicable when A sues B, and B makes a counterclaim against A – the police don't sue you, they arrest you, and the prosecutor prosecutes you (or decides not to). If the police beat you up, you could sue them for violating your rights, under what is known as Section 1983. Given the scenario you describe, this comes closest to involving false arrest, meaning that there was no probable cause for arrest. Otherwise, the police have immunity for their actions. But if there is a legal arrest warrant, there is probable cause (existence of probable cause is the standard for issuing an arrest warrant), so no claim against the police will succeed. I am leaving out the anomalous concept of an unlawful arrest warrant, where a judge issued an arrest warrant but there is in fact no probable cause. Such a case would be covered by Section 1983, where either the judge or the swearing officer (or both) violated your rights. | No Section 18-1-704.5. (1) says that : The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes. (*emphasis added) Subsections (2), (3), and (4) all refer to "any occupant of a dwelling" as the class authorized to use force by this section. An offie is not a dwelling. Section 18-1-901. Definitions says: (g) "Dwelling" means a building which is used, intended to be used, or usually used by a person for habitation. Section Section 18-1-704 provides that: (1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose. (2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and: (a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or (b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204; or (c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203.of person's authored by this law to use force Under that provision, the use of deadly force does not seem clearly justified. It is highly questionable that "a lesser degree of force is inadequate". Any conclusion that the intruder represents an "imminent use of unlawful physical force" seems dubious, but I can't say what a court might find. This law is fairly recent, there may be no published case law for it. | The legal hook is reported to be §129 of the Code of Criminal Procedure, which authorizes use of force to disperse an illegal assembly, which this sort of is. No statute that I can find states that police can smack lawbreakers who are forced to disperse, but as is common in common law countries, the laws of India are not fully explicit on that which is allowed or forbidden for police to do. As this article indicates, systematic limits on police use of force remain to be developed. | "Checking someone's digital footprint" could be stalking, depending on the circumstances. The better question to ask is about the legality of a certain action, and not the specific name used in a jurisdiction (although indeed in Washington there is a defined crime of "stalking"). I don't know what you mean by "checking someone's digital footprint", and it is not defined by law. Looking at RCW 9a.46.110, we can first discern that it does not matter for the definition of the crime where these people live or where the robbery took place. If two people from Alberta travel to Alaska and harass or murder a person from Texas, Washington law does not enter into the equation. The crime that you're asking about is the snooping, so for Washington to have jurisdiction, the snooping has to be "in" Washington. That does not mean that both parties have to be in Washington – there can be complex jurisdictional laws if the accused is in another state or country. The accused can easily be prosecuted in his own state, he can also be prosecuted in a foreign country, if he is caught there or if he is extradited to that country. For the act to be stalking, the first element is that "He or she intentionally and repeatedly harasses or repeatedly follows another person; and...". Harassment is defined in that section as a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose. The course of conduct shall be such as would cause a reasonable person to suffer substantial emotional distress, and shall actually cause substantial emotional distress to the petitioner, or when the course of conduct would cause a reasonable parent to fear for the well-being of his or her child. Since there was no communication between the parties, there is no harassment in the legal sense. There is no "following" either, therefore the act fails to constitute stalking w.r.t the first elements. Since the crime is defined by a conjunction of elements and your scenario fails on the first conjunct, it is not "stalking" (it is also not "harassment" as defined in RCW 9A.46.020, 9A.46.060. |
Can someone legally require me to return a gift they gave me? So a "friend" in Canada sent me a tablet ( I think it was worth $400 U.S. currency) to replace the one I had that I could barely do anything on. I never asked for one, and I remember repeatedly that I told him not to get it for me, but he did. Now that I'm no longer in his life, he wants me to send back everything he sent me, and he says he will report the tablet as stolen if I don't return it. I know about conditional gifts, but I never made any promises tied to the tablet, so I'm not sure if it counts as a conditional gift. | If someone gave a gift than requested it back is it legal? The request itself is legal, but that does not mean that you have to comply with it. I never promised anything that tied to the tablet. So I'm not sure if it counts as a conditional gift. It does not. An unconditional gift (which initially you did not even want) fails to meet the elements of a cognizable doctrine such as contract, promissory estoppel, fraud, or unjust enrichment. he says he will report the tablet as stolen if I don't return it He might get in trouble if he does that, since he knows or should know that the tablet was never stolen. He gave it away despite your initial refusal(s). As such, he might incur false reporting of a crime. | In general, you cannot contract to do anything illegal. However, ... An argument could be made that permission has been granted to, for example, enter property and remove the item. If permission has been granted, entering property and taking an item is not a crime. | If two parties have a contract, where one party is required to do X in exchange for the other party doing Y, then the terms specified in that contract would determine what happens. You would have to see exactly what it says, especially if the other party has the option to not give you money. A contract might say "A shall at his option give B $5,000 by date X; if A elects not to make payment, notice must be given 60 days before X". Failing to give timely notice is thus breech of contract. However if the clause only says "A shall at his option give B $5,000 by date X", then there is no requirement for advance notice. And this assumes that there is a contract whereby both parties have some obligation to the other. A gift, on the other hand, carries no obligations on the giving party. There may be some social code to the effect that they should have told you by now, but failing to give advance notice is at most rude and certainly not legally actionable. | The party that made the overpayment would have the right to sue you for "unjust enrichment" or "breach of contract" (since the terms of service no doubt provide or strongly imply that you are entitled to only one payment per sale), if you didn't voluntarily return the overpayment following a demand to do so, even though you received it through no fault of your own. Most of the core cases involve clerical errors in the bank account number used for a bank deposit. In general, there is a right to recover an accidental transfer of property to another, even in the absence of a clearly applicable contractual arrangement. As another example, if you were accidentally given a valuable coat at a coat check by accident and didn't notice it until later, the true owner would have a right to have it returned. The FTC regulation applies (as demonstrated by the link cited in the question) to intentional unsolicited deliveries of merchandise (which would always be tangible personal property by definition) to you through the mail. It does not apply to transfers of money, or to the accidental mis-delivery of property to the wrong person or the wrong address. The law in question is as follows: 39 U.S. Code § 3009 - Mailing of unordered merchandise (a) Except for (1) free samples clearly and conspicuously marked as such, and (2) merchandise mailed by a charitable organization soliciting contributions, the mailing of unordered merchandise or of communications prohibited by subsection (c) of this section constitutes an unfair method of competition and an unfair trade practice in violation of section 45(a)(1) of title 15. (b) Any merchandise mailed in violation of subsection (a) of this section, or within the exceptions contained therein, may be treated as a gift by the recipient, who shall have the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender. All such merchandise shall have attached to it a clear and conspicuous statement informing the recipient that he may treat the merchandise as a gift to him and has the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender. (c) No mailer of any merchandise mailed in violation of subsection (a) of this section, or within the exceptions contained therein, shall mail to any recipient of such merchandise a bill for such merchandise or any dunning communications. (d) For the purposes of this section, “unordered merchandise” means merchandise mailed without the prior expressed request or consent of the recipient. | There is something wrong-sounding about that claim. Owning a thing (such as a book) means that you can dispose of it however you want. If it is a physical book, then unless this is a book of top secret classified information, the US government has no control over the item, nor does the copyright holder have any right to prevent you from giving away your copy. Electronic books, however, are another matter, since often you don't buy such books, you buy a license to use the book (like a software license). The license terms of an electronic book could be subject to various controls, and the license might be non-transferable. The underlying logic of this is that under the doctrine of first sale, you are allowed to do whatever you want with intellectual property that you buy, and therefore to restrict re-distribution of electronic IP, software especially is typically not itself sold, and just the permission to use it is. If this is an electronic book, the copyright holder would be able (though not necessarily willing) to permit you to transfer your copy to someone else. Of course you can't give a copy to two people unless you have two licenses. | No, the only purpose of a money order is that it's effectively a form of guaranteed cash that only one person can access. There are no additional protections offered by it. However, given that you are amenable to paying a little extra to facilitate your payments, you may want to consider using a credit card in the future. Provided it's not an all the time thing, credit cards will withhold payments on your behalf if a vendor fails to fulfill their obligations. This means that you're not liable for the cost of the merchant sending you the wrong thing or ignoring your order requests. I've personally done this for several things: Hotel reservation that was borderline unsuitable for human habitation. When a vendor failed to send something I'd purchased. When proceeding with this, bear in mind that the credit card company will want you to make such a claim as soon as possible and to provide as much information as possible to support your claim. If you've e-mail chains, save them. If you've been communicating by phone, write down and provide a summary of your communications. If you have an issue, don't wait a month to raise the concern, do it within a week. Probably about once a year I need to do something like this. Generally what this does is it starts a dispute process whereby the credit company will contact the vendor to get their side of the story (usually they don't respond to them either). After 60 days, the charge is dropped from your bill and presumably the credit card company refuses to pay for the disputed item. Ultimately, this gets you the best possible result. You get your money back and you didn't have to go to court to do it. | There is no law against a person creating and distributing such a poster, to the best of my knowledge. However such a poster pretty clearly implies that the person shown is guilty of a crime, or at least strongly suspected. If the store somehow made an error, pulling the image of a person who did not use the stolen card or there is some other error, the person pictured might well suffer a significant loss of reputation, and might sue for defamation. Damages could possibly be significant. Such suits have, I believe, happened when surveillance photos were posted but there later proved to have been an error. Mary might wish to double check how sure the store is that the photos are of the person who actually used the stolen card. | Am I as the user of this site in any way liable if the music turns out to violate copyright? Yes. In a similar way to if I give you “permission” to take my neighbour’s car. Only worse. Because stealing requires intent - you have to mean to do it - while copyright violation is strict liability - if you do it, you’re guilty. If the user that uploaded the item did not have the authority to give the site permission then the site does not have permission and neither do you. If you take reasonable precautions such as performing a reverse image source and verifying that the item appears to be owned by the same person everywhere and, perhaps, reaching out to them then your violation will be an “innocent” infringement which mitigates but does not eliminate damages. The only way to be sure with copyright is to know the provenance of the copyright/licences back to the original creator. |
Does fair use supersede the permission of copyright holders? Fair use seems inherently contradictory. I need help understanding the exact context. According to copyright, you need permission to use intellectual property but fair use says you don't need permission as long as you use the work under specific circumstances. Hypothetically, if a copyright terms explicitly stated it cannot be used by others and at the same time someone used this specific copyrighted content without permission in a context that matches the criteria of fair use, would the doctrine of fair use supersede the copyright? | Almost all works recorded in some fixed way that are not a couple of hundred years old or created by a government agency are protected by copyright. In the absence of an exception to the general rule, copying a work that is protected by copyright is copyright infringement, which can be a basis for the copyright owner to sue the infringer. This can also be a basis for criminal liability is certain additional elements are proved and a prosecutor proves a case of copyright infringement in a criminal case. But, there are some important exceptions to this general rule of what constitutes legally sanctionable copyright infringement. The most important exceptions to the general rule have the character of affirmative defenses. In order words, if someone sued for copyright infringement and the person sued admits that they copied the copyright protected work, they can use these exceptions to avoid having legal liability. One of the exceptions is the permission from the copyright owner to use the copyright work. This can be either in the form of affirmatively given permission to use the copyrighted work in a particular way (called an "express license" to use the copyrighted work), or in the form of permission to use the copyrighted work that can be inferred from context (called an "implied license" to use the copyrighted work). Another of the main exceptions is "fair use". If the way a copy of a copyrighted work is used constitutes fair use, the person using the copyrighted work without an express or implied license to do so it not liable for copyright infringement. Of course, while you don't need more than one exception to the general rule to avoid liability for copyright infringement, you can have more than one. For example, you can use copyrighted work in a way that would constitute "fair use" and not give rise to liability for that reason if you were sued, even if you can't be sued anyway because you already have been given permission by the owner of the copyright to use the copyright in the way that you did. It isn't a case of a contradiction. It is a case of a general rule that has exceptions. | Yes. For example, corporations can own copyright. They may own copyright after assignment (this is true across much of the commonwealth and in the U.S.). In some jurisdictions, when a work is made for hire, the employer may be deemed the author and initial owner (e.g. U.S.) or just the initial owner (e.g. Canada). | No, one cannot safely assume that because some people have done a thing without being sued, that it is OK to do a similar thing and no suit is possible. It is possible that people who upload a video, or a section of it, have permission. It is perhaps more likely that the copyright owner does not choose to sue, for whatever reason. But a different owner of a different video might make a different choice. Uploading a video, or even a section of a video, without permission, will be copyright infringement, unless an exception to copyright such as fair use or fair dealing applies. Such an infringement gives the copyright owner valid grounds to bring a suit. But the owner can choose whether or not to sue. An owner can sue in one case of infringement but not in another, for any reason or none. If the expected damages are small, it many not be worth the time, trouble, and costs to sue. In the US, one must register a copyright before bringing suit for infringement of that copyright, and there is a fee for registration. Some owners feel strongly about the use of their work, and will sue on any pretext. Some may prefer to tacitly support uses that they approve of by not bringing suit. One cannot tell the attitude of a particular owner unless that owner has stated what his or her view is. Short films are just as protected as full-length feature films, and suit can be filed for infringing the copyright on a short film. But the more expensive a film was to make, and the more money the owner expects it to earn, the more likely it is that the owner will choose to sue. Many people infringe by uploading short films or videos, gambling that the copyright owners will never learn of this, or will not trouble to sue. Sometimes such infringers are correct, and sometimes they get sued. I do not understand what the OP means by the part of the question that reads "There should be more detail and complex lines over here" What additional detail is wanted? Who does the OP expect to provide it? What sort of "lines" does this refer to? | You are in effect asking if this is a case of Fair use, an important US-specific legal concept in copyright law. Please review this question for an overview of fair use. See also This statement from the US copyright office Deciding whether a use is a fair use is always a fact-driven, case-by-case, process. No one ever knows for sure if a use is a fair use unless that specific use is challenged in court as infringement, and the fair use defense is raised and sustained or not. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission. ("More Information on Fair Use" -US Copyright office) Factors Let's look at the fair-use factors in the case of this photo: Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: The use is apparently for clearly commercial purpose. This tends to weigh against fair use, but does not rule it out. Then the is the question of whether the use is transformative. The background image apparently serves its original decorative purpose. Whether making it part of an ad is transformative might be debated. Nature of the copyrighted work: The graffiti is an artistic and creative work, not a work of non-fiction or news reporting or factual information. This also tends to weigh against fair use. Amount and substantiality of the portion used in relation to the copyrighted work as a whole: It seems that almost all of the work of graffiti, or at least a significant part of it, is being used. This tends to weigh against fair use to some degree. moreover, the work of graffiti is quite prominent in the background of the work, which ,means it makes a significant contribution to the final work, which also weighs against fair use. Effect of the use upon the potential market for or value of the copyrighted work: If the work of graffiti is currently being marketed, the question does not say so, and i would suppose that it isn't. There could be a potential market: the artist could make photos or prints of the work and market them, for example. Even so, this image probably wouldn't affect such a market much. This factor probably inclines towards fair use, but it is hard to say just how a court would asses it. Case law In Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997) A poster of a “church quilt” was used in the background of a television series for 27 seconds. This was held not to be fair use. The court was influenced by the prominence of the poster, its thematic importance for the set decoration of a church, and the fact that it was a conventional practice to license such works for use in television programs. This case seems particularly close to the one in the question. In Bill Graham Archives v. Dorling Kindersley Ltd. 448 F.3d 605 (2d Cir. 2006) posters of Grateful Dead concerts were reproduced in a book. This was held to be fair use. The reduced size of the images, and their appearance in the context of a timeline were considered significant. In Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (7th Cir. 2014) A modified photo of a Wisconsin mayor was reproduced on a Tshirt and used to raise money for an event. the photo was posterized, background removed, text added, and a lime green outline featuring the mayor’s smile remained. The resulting image of the mayor, the court stated, “can’t be copyrighted.” Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains. Defendants started with a low-resolution version posted on the City’s website, so much of the original’s detail never had a chance to reach the copy; the original’s background is gone; its colors and shading are gone; the expression in Soglin’s eyes can no longer be read; after the posterization (and reproduction by silk-screening), the effect of the lighting in the original is almost extinguished. What is left, besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted. (I take this to mean that the elements actually copied do not have enough original content to be a copyrightable wqrk.) In Kelly v. Arriba-Soft, 336 F.3d. 811 (9th Cir. 2003) use of thumbnail images in search engine results was held to be fair use. The reduced size and image quality were significant to the court. So was the transformative use of the images to help identify and index the pages. Conclusion This is not a clear-cut case, in my view, but the case for fair use does not seem strong to me. Copyright protection of Unauthorized Graffiti A number of comments and some other answers have raised the question of whether graffiti made without the permission of the owner or tenant of the location, and therefore illegally, are entitled to copyright protection. The first thing to say is that there is nothing in 17 USC (the US copyright law) that conditions copyright protection on the legality of the work, or of its publication. Case law on this precise issue is not easy to find, nor does there seem to be much of it. IPWatchDog's "Preventing a Graffiti Copyright Infringement Lawsuit" (2018) says: Several high-profile companies, American Apparel, Coach, American Eagle Outfitters and H&M who shot advertisements in public spaces, have found themselves inadvertently in the midst of such legal disputes with street artists. Even though an advertiser may have had permission from the property owners, even though the “artwork” was unsanctioned and unsigned or “tagged,” the graffiti artists have come forward after the ads were already in circulation, identified themselves and sought compensation and damages. It goes on to say that: These cases tend to be settled out of court, because regardless of the merit of an infringement claim, they are costly to defend and the unwarranted negative publicity can injure a company’s reputation. ... Also, from a legal standpoint, the question of whether the copyrights of illegally created street art are valid has not yet been determined – so there would be some element of doubt as to how a litigation would be decided. *The Atlantic's article "Can Graffiti Be Copyrighted?" about the case of graffiti artist David Anasagasti's case against American Eagle Outfitters for use of his work (and several other similar suits) quotes Philippa Loengard, assistant director of Columbia Law School’s Kernochan Center for Law, Media, and the Arts as saying: Given what I know of the case, this is one of the most blatant examples of copyright infringement None of the suits mentioned in the story seem to have resulted in a court decision as yet. In Falkner v. General Motors Company, the trial judge held that the art was not "part of" the building and thus the exemption for photos of architectural works under 17 USC 120 does not apply. However it denied plaintiff’s DMCA claim and his claim for punitive damages. The court held that: because the facts in the record tend to establish—if anything—the lack of a relevant connection between the mural and the parking garage, the Court cannot hold as a matter of law that the mural is part of an architectural work under Section 102(a)(8). Thus, it cannot reach the issue of whether Section 120(a) applies to the mural to permit photographs of the mural. In an article in the N.Y.U. Journal of IP & Entertainment Law "Protecting Artistic Vandalism" author Celia Lerman argues that copyright should protect unauthorized, illegal graffiti art. This article notes that: Graffiti pieces increasingly attract the attention of numerous collectors, gallery owners, publishers, filmmakers, and journalists. Pieces from famous graffiti artists have sold for hundreds of thousands of dollars in the art market. Graffiti pieces have even been given as diplomatic gifts. Galleries are seeing record attendance at exhibitions of graffiti works, and publishers have generated a boom of photographic books on graffiti and street art. (citations omitted) The article notes that Tattooed Walls a book by Peter Rosenstein about NYC Graffiti, reproduced images of many works of graffiti without permisison, the author believed that these were fair use because they were posted in public places. Several artist sued, a settlement was agreed to, and the book was withdrawn from publication. The article mentions a suit against Tony Hawk’s Pro Skater 2 Official Strategy Guide, by the author of a work of graffiti which was reproduced. The suit was initially dismissed for lack of copyright registration, but the court said that it “assumed, without deciding, that the work is copyrightable.” When the suit was refiled after registration, a motion to dismiss was denied, and the parties then settled, so there was no court decision on the merits. Other simialtr cases are mentioned. The article goes on to analyze the law and the purposes that copyright law serves, and give reasons why such works should be protected. But none of this cites an actual case where an illegal graffito has been held protected. The Falkner case will not produce such a ruling, because the art in that case was authorized, indeed invited, by the building owner. | In principle, every single copyright license allows someone to do something that plain copyright law wouldn't allow them to do. Very often there are conditions: They are allowed to do X, which plain copyright law wouldn't allow them to do, but only if they fulfil some condition Y. The consequence is that if they do X without fulfilling the condition Y, then they are committing copyright infringement. Details are different from country to country. In the USA, you cannot force someone to do what the license asks the, to do, but if they don't, it's copyright infringement, and you can sue them and ask for damages. Other countries see it as a contract, where by doing X they agree to do Y as well, and not doing it would be breach of contract. Often with the interesting effect that you as the copyright holder cannot prove that they accepted the license, so in court they can tell the judge whether they were committing copyright infringement or whether they are in breach of contract. You can of course use your own license - however, one of the standard licenses mean the license was likely checked by a better lawyer than you would want to pay, and is much more likely to achieve what you want to achieve. If there were any problems say with the Creative Commons license, people would have found those problems and fixed them a long time ago. | If you used some creative work of mine without my permission (I'm the copyright holder, and you have no license giving you permission) then I can sue you to make you stop using my work, to get payment for damages, and to get payment for statutory damages. If you used my work because someone else told you wrongly that you had a license, that's very unfortunate for you, but is no reason why I wouldn't or shouldn't sue you. Obviously in this situation that third party did something badly wrong. I can sue both of you together to make sure that I get payment from whoever has deeper pockets. You can also sue that third party if you think that their lying, or being mistaken, about a non-existing license caused you damages, or if there is a contract or something that makes them responsible. | Permission is not a physical thing that disappears when a piece of paper evidencing that permission is lost or handed to another party. When someone gives you permission as part of an agreement having the necessary characteristics of a contract, then the revocation of that permission is governed by the terms of the contract itself and your jurisdiction's contract-law. You may not need any permission to use the photos you paid to have taken. (For example, in the U.S. if they were taken in a public place and you are not displaying them for profit.) Or, you might need permission due to various rules or laws protecting minors – only an IP lawyer familiar with your jurisdiction can confirm this is the case – and, unless it was drafted by a competent lawyer, it is quite possible that your "permission statement" was legally insufficient or defective. Or, you might have legally secured necessary permission and still have that permission even though you handed the "permission statement" back to the parents of the subject. In practice: Only a lawyer in your jurisdiction can offer an opinion on which of these scenarios is in fact the case. And only via litigation can you establish further confidence that legal opinion is correct. | An affirmative defense In the US, fair use (17 USC §107) "is an affirmative defense" (Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994)). It need not be raised unless the plaintiff establishes that the defendant's activity would otherwise be infringing. When fair use is raised as a defense, the burden is on the defendant to prove the elements of fair use. A four-factor balancing test Here is the text of 17 USC 107: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. "Congress meant §107 to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way and intended that courts continue the common-law tradition of fair use adjudication." (Campbell, quoting from H. R. Rep. No. 94-1476). Factor 1: Purpose and character of use The statute explicitly lists several purposes which would weigh in favor of a finding of fair use: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. However, that list is only illustrative, not exhaustive. Commercial use weighs against fair use. Nonprofit use weighs in favor of fair use. Parody is another purpose which greatly affects the analysis, especially as it interacts with factor 4. Factor 2: The nature of the copyrighted work "[T]he scope of fair use is generally broader when the source of borrowed expression is a factual or historical work" (Campbell). "[I]nformational works, such as news reports, that readily lend themselves to productive use by others, are less protected than creative works of entertainment." (Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984)) Factor 3: Amount and substantiality of the portion used in relation to the copyrighted work as a whole "The extent of permissible copying varies with the purpose and character of the use." (Campbell) For example, full reproduction of an entire work was allowed in Sony. However, in Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), taking just 300 words from a 7,500 word excerpt of President Ford's memoirs was not found to be fair use because it took the "heart of the book". The amount and substantiality of the taking is judged with respect to the original work. How much of the original was taken? "A taking may not be excused merely because it is insubstantial with respect to the infringing work. As Judge Learned Hand cogently remarked, 'no plagiarist can excuse the wrong by showing how much of his work he did not pirate.'" (Harper & Row) Factor 4: Effect of the use upon the potential market for or value of the copyrighted work If the use new work takes the place of the original, thereby decreasing its market or value, that weighs against a finding of fair use. However, parody or criticism, simply by decreasing the value of the work it is critical of, does not suffer the same fate. "The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop. [...] [T]he law recognizes no derivative market for critical works." (Campbell) Parody and criticism might decrease the value of the original, not by taking its place, but rather, by saying something negative about it. Protection of that type of speech is one of the goals of the fair use defense. Transformativeness The four factors are not to be "treated in isolation, one from another." "All are to be explored, and the results weighed together, in light of the purposes of copyright." (Campbell) However, the court recognizes that "[t]he central purpose of this investigation is to see, in Justice Story's words, whether the new work merely supersedes the objects of the original creation", "to what extent the new work is transformative". "[T]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." (Campbell) Case-by-case analysis "The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis." (Campbell) In general, it is not possible know ahead of time whether a fair use defense would be successful in a particular case. Example cases Perhaps the best way to learn how the courts apply these four factors is to look at example cases. The US Copyright Office hosts a Fair Use Case Index that lets you browse by subject matter and jurisdiction. Stanford hosts a smaller collection of examples. |
USA Supreme Court vs. State Costitutions and State Supreme Courts In the USA, could a clause (article, proposition) of a State Constitution be held unconstitutional, with respect to the USA Constitution, by the Supreme Court? If it could, has it ever happened? Also, could a decision by a State Supreme Court be reversed by the USA Supreme Court? | In the USA, could a clause (article, proposition) of a State Constitution be held unconstitutional, with respect to the USA Constitution, by the Supreme Court? Yes. The supremacy clause in the US Constitution means that State law is supervened by Federal law. This includes State constitutions. If it could, has it ever happened? Yes. Here is a list of all SCOTUS cases that have overturned state law. For state constitutional provisions see nos 37, 49, 50, 51, 54, 74, 75, 139, 140, 151, 182, 188, 202, 207, 224, etc. (there’s nearly 1,000 in the list, you can go through them yourself). Also, could a decision by a State Supreme Court be reversed by the USA Supreme Court? Most of those cases will have gone through the State Supreme Court first. Except where SCOTUS has original jurisdiction (those involving disputes between the states or disputes arising among ambassadors and other high-ranking ministers) the state courts must have ruled to enliven its appellate jurisdiction. | The last part, about equal suffrage in the Senate, does not expire. The question is whether it can be itself amended out of existence. There has been no test of that possibility. This article argues that this may not be subject to amendment. There is only one way to find out for sure. The idea is that the original intent was that this is supposed to be an absolute clause, but of course that only speaks to original intention (and the original intention is not clear, as the article discusses). | If an appellate court interprets a constitutional clause, that interpretation only has precedential weight as long as the clause (and other clauses it interacts with) go unchanged. Some aspects of the original interpretation might have some persuasive weight on the way the new clause is interpreted (for example, if the new clause uses language that the court previously used or interpreted). But other than taking potentially persuasive guidance from that kind of interaction, a new constitutional clause is interpreted de novo (anew, without deference to previous interpretations). An example of this can be found in State Board of Equalization v. Young's Market Co. 299 U.S. 59 (1936). The Supreme Court had to interpret the newly ratified 21st Amendment which ended prohibition. Prior to the Twenty-First Amendment, it would obviously have been unconstitutional to have imposed any fee for [the privilege of moving beer across a state border]. But, the 21st Amendment changed that (cleaned up): The amendment which prohibited the transportation or importation of intoxicating liquors into any state in violation of the laws thereof abrogated the right to import free, so far as concerns intoxicating liquors. The words used are apt to confer upon the state the power to forbid all importations which do not comply with the conditions which it prescribes. | Ultimately the answer (in the US) is the US Constitution. The courts pretty much have the unlimited power to interpret the law, and the limits on power mainly pertain to what the state can do. The length of the leash on the government depends on what kind of rights are at stake. The weakest and default limit is known as "rational basis", and comes down to asking whether a government action is rationally related to a legitimate government interest (such as stopping terrorist attacks) plus whether there was due process and equal protection. There are more rigorous standards (intermediate scrutiny, strict scrutiny) in case a law involves a "suspect classification", or in case a fundamental constitutional right is infringed. In the case of strict scrutiny, the government would have to show that it had a compelling interest in the action, the law would have to be "narrowly tailored" (i.e. does that thing and only that thing), and should be the least restrictive way to achieve that result. Roe v. Wade is probably the best-know example of that kind of review, which held that abortion laws "violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy". A court would not order a party to do an impossible act. A court could order a party to do something which the party had argued was impossible, but you can interpret a court's decision to indicate that it rejected the argument. The defendant would not shoulder the burden of proving that the action was impossible, though they would have to counter the government's argument that the act could be performed if they believe it is not possible. (In the Apple case, the argument would probably be some Apple-internal document that says "Yeah, we can do it, but do we want to?"). There is probably an expense-related limit in that the courts would not order Apple to liquidate all of their assets to comply. But: if a case were to end up at the Supreme Court, the court is stricken with mass insanity and arbitrarily orders a defendant to do the impossible, there is only the option of impeachment and Senate trial to remove the offending justices, and that is just not going to happen. There is no higher authority that overturns SCOTUS. | The 14th amendment guarantees equal protection under the law for all citizens of the US. It's my understanding that this means from the Federal Government, and doesn't exactly apply when it's a "states' rights" kind of issue. Your understanding is incorrect. The primary original purpose of the 14th amendment was to prevent states from passing laws that treated former slaves differently from other citizens, and indeed to clearly declare that they were in fact citizens, thus reversing the decision in Dred Scot v Sandford 60 U.S. (19 How.) 393 (1857). That decision held that black people could not be US citizens and had no rights granted to citizens under the US Federal Constitution. Of course the amendment is applied in a much wider scope than merely granting citizenship to the former slaves freed by the 13th amendment. The Equal Protection Clause** generally requires that laws not make arbitrary and unjustified distinctions between people, nor treat different people in the same legal situation differently. The clause does not, however, prevent laws from treating who are in some significant legal sense in different positions differently. What is and is not a violation of the clause has been the subject of many legal cases and much debate. The clause requires "state action" to be invoked. and is generally only applies to state and local governments, and those in their employ or acting on their behalf. However, the US Supreme Court held in Bolling v. Sharpe, 347 U.S. 497 (1954) that the 5th amendment imposes a similar requirement of equal protection on the Federal government. The amendment, and the equal protection clause, do not guarantee any particular outcome in judicial cases. It is not clear from the question what equal protection issue, if any, might be at issue in the particular matter described. If the issue is one of treatment under the laws of a country other than the US, even though the people involved are US citizens, the US constitution, including the amendment will not apply. | Assuming, for purposes of argument, that such a change could be made by executive order, or indeed by legislation, rather than by amendment, yes, the change could and would have to have an effective date, and apply only to persons born after that date. Indeed that would still be true if such a change were made by constitutional amendment. Consider, people whose parents (or one of whose parents) are US citizens, but who are born outside of the US, are or may become citizens (by statute), but only if the citizen parent complies with certain rules specifying a minimum period of residence in the US, and other conditions. Those periods and conditions have changed over the years, and each such change had an effective date. If such a change could be made but could not be made with an effective date, then it would apply retroactively, and deprive people who are already citizens of their citizenship. There is no valid equal protection claim, because the same rules apply to both individuals, they merely give different results for the different birth dates. (See my answer to this question for why I do not think such a change would be valid except by Constitutional Amendment.) EDIT: I suppose such a changed interpretation, if made at all, might take the position that such births never did validly convey citizen ship, and all people whose parents were not validly in the country had never been citizens. That strikes me as even less likely to pass judicial review, but one cannot know what the Supreme Court will do when faced with a truly novel situation. | Constitution of the USA, Article IV, Section 1: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. and the Commerce Clause (Article I, Section 8, clause 3): [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; SCOTUS has found the former to mean that states that do not allow same-sex marriages in their laws must recognize same-sex marriages registered by other states - Obergefell v. Hodges. Maybe one could argue that driver licenses are not equivalent among states, but I would expect judges (SCOTUS) to require a very well reasoned explanation. For example, maybe Alaska could refuse to recognize licenses from Florida because Florida drivers do not know how to cope with snowed roads. But even in that case Alaska probably would need to produce data showing that these measures aim to serve the public interest (avoid accidents) and that there are no other ways of getting the same result. OTOH the Commerce Clause has been successfully used to avoid states mandating racial segregation of travellers, so it is quite reasonable to see it being used to prevent a state from trying to limit the mobility of citizens from other states (again, in the supposition that the state restricting it cannot show a compelling reason to do so). AFAIK, only the Federal Government could invoke the Commerce Clause; I would expect a lot more people (in your example, the PA government or maybe even any PA driver) would have standing. | Let’s look at the full paragraph Neither the President nor Congress nor the Judiciary can disturb any one of the safeguards of civil liberty incorporated into the Constitution except so far as the right is given to suspend in certain cases the privilege of the writ of habeas corpus. So what it actually says is: you can’t unless you can. The Constitution says this to say about habeas corpus: The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. The case decided that military commissions (and the denial of habeas corpus) were constitutional where there was no civilian court available. Because Indiana had never been in rebellion and civil courts continued to function there, military tribunals could not be used. However, they could be uses in states that had been in rebellion. You can’t unless you can. This is specifically about rights guaranteed in the Constitution In this particular case, the right of habeas corpus. There is no equivalent right applicable to face masks so a law mandating them in certain circumstances does no more infringe a Constitutional right than mandating the wearing of clothes in public. You can’t unless you can. Breaking the law doesn’t cause you to lose your job The second quote, the origin of which is unknown and definitely not in the case, is total fantasy. Even if a law against face masks was unconstitutional, the authors of that law have overreached and the remedy is to go to a court to have it declared unconstitutional. They don’t lose their jobs as a result. Even if they wrote the law with criminal intent, they must be removed from office in accordance with the normal procedures such as impeachment for the President, by a two-thirds majority vote of their house for a Congressperson etc. |
Is antisocial behaviour a "crime"? It seems almost to be its own entity, almost like contempt of court in being neither criminal nor civil, as well as analogous to the process of being bound over for a breach of the peace. For example it seems that one only has to give one's name and details if one is either reasonably suspected of an "offence," or of engaging in or having engaged in antisocial behaviour. | Not exactly, some actions that fall under "antisocial behaviour" are crimes in of themselves and they can be prosecuted in the normal manner (Of course where someone is prosecuted for those they're prosecuted for the specific crime not "antisocial behaviour") This doesn't mean however that doing anything that's not explicitly illegal leaves the Police powerless. In the Anti-social Behaviour, Crime and Policing Act 2014 there's a pretty broad definition of the term "antisocial behaviour": (a)conduct that has caused, or is likely to cause, harassment, alarm or distress to any person, (b)conduct capable of causing nuisance or annoyance to a person in relation to that person's occupation of residential premises, or (c)conduct capable of causing housing-related nuisance or annoyance to any person. A constable can issue a Community Protection Notice (CPN) or the Police and select other organisations the option to apply for a civil injunction aimed at preventing the perpetrator(s) from continuing, the injunctions are ordered by Magistrates sitting in a civil capacity and the standard of proof is the civil one - i.e. "balance of probabilities" not "reasonable doubt". Violating a CPN can lead to a fine of between £100 and £2500 while violating such an injunction is considered Contempt of Court and while that still isn't a criminal offence can still see the guilty party land in jail for up to 2 years. | They can’t But they aren’t This is the law (as amended). Section 9 contains the penalties. In any event the police don’t fine people they issue an infringement notice which is an allegation of an offense - police can issue these even if they reasonably believe they took place - they are entitled to be wrong. The person given the notice can admit the offense by paying the fine or contest the allegation by going to court. | I have not read the news report so cannot comment on the alleged offences and police conduct, but what I can say is that the information to given on arrest may be found at section 28 Police and Criminal Evidence Act 1984 (PACE): (1) Subject to subsection (5) below, where a person is arrested, otherwise than by being informed that he is under arrest, the arrest is not lawful unless the person arrested is informed that he is under arrest as soon as is practicable after his arrest. (2) Where a person is arrested by a constable, subsection (1) above applies regardless of whether the fact of the arrest is obvious. (3) Subject to subsection (5) below, no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest. (4) Where a person is arrested by a constable, subsection (3) above applies regardless of whether the ground for the arrest is obvious. (5) Nothing in this section is to be taken to require a person to be informed— (a) that he is under arrest; or (b) of the ground for the arrest,if it was not reasonably practicable for him to be so informed by reason of his having escaped from arrest before the information could be given. Note the provisions at subsection (3) do not require anyone else to be told the grounds (reasons) at the time of arrest - including members of the public, protesters, bloggers or the press. Kerb-side debates can seriously or significantly distract the officer from ensuring e.g. public safety or preventing e.g. an escape from custody. Also, depending on what else is going on e.g. say in a dynamic and volatile crowd control or public order situation, the person under arrest does not need to told immediately if it would be impractical to do so. The operative phrase being as soon as is practicable, which is not defined by statute as each case needs to be considered individually according to its own set of circumstances. The relevant case law is DPP v Hawkins [1988] 1 WLR 1166, but the only detailed commentary I can find online is behind the PNLD paywall1. Succinctly, the magistrates initially dismissed the case against Hawkins for assaulting four police officers who kept him under arrest without giving the grounds as required by s.28(3) PACE. The DPP appealed, and the Court of Appeal sent the case back to the magistrates saying, inter alia, although there is an obligation under s.28(3) to tell a prisoner of the reason for his arrest as soon as possible (sic) after his arrest, a constable was also under an obligation to maintain that arrest until it was practicable to do so. 1Or free to law enforcement officers | He was jailed for breaching an injunction imposed on the Shard in 2018 which was intended to prevent anyone from climbing it, according to a news report from the Guardian at the time. The actual offence he committed was contempt of court which is a criminal offence. Double jeopardy does not apply here because the crime he was cautioned for was not the same crime he was prosecuted for. It appears there was no precedent set, prior to this private prosecution, about whether or not someone could be jailed for breaching an injunction in this manner, as opposed to merely being fined, etc. Obviously, since he has been jailed, people in the future will be reluctant to copy his behaviour and a deterrent has been set. | Calling someone an "asshole" is, at least in the US, an expression of opinion and so is not defamation. Saying that someone has committed a crime may be defamation, but not if that person has in fact already been convicted of that crime. In general if a statement is provably true, it is not defamation. If all that this hypothetical firm does is to post facts as found in court decisions, along with their unfavorable opinions of losing parties who they did not represent, it is hard to see any defamation case being valid. And I don't see any other obvious legal problem with doing this. It would probably anger other lawyers, and might make it harder to negotiate settlements or do other deals. If this firm announce that they refuse to accept as clients "cheats, crooks and similar people" and then make it public that they refused to represent some specific person, A, then A might claim that this portrayed him or her as a "cheat or crook" and was defamatory. The exact wording of their publicly announced policy, and of any announcements that they decline to represent A, would matter a good deal, as would the jurisdiction's exact law of defamation. In some places, codes of ethics promulgated by a Bar Association might be violated by such a policy, but such codes are usually not enforceable in the general case. I don't see any obvious grounds for disbarment proceedings. | It is the use of a "menace" which creates the crime, not the nature or validity of the demand. That's not correct. You've inadvertently missed the other element of the offence: that it's an "unwarranted demand". A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief— (a) that he has reasonable grounds for making the demand; and (b) that the use of the menaces is a proper means of reinforcing the demand. https://www.legislation.gov.uk/ukpga/1968/60/section/21 For example, I may have reasonable grounds under the Consumer Rights Act to demand a refund for a faulty good. It might be sensible to moderate one's language, e.g. "If I do not receive a satisfactory response from you within 30 days of the date of this letter, I intend to issue proceedings against you in the county court without further notice. This may increase your liability for costs." vs. "If I do not receive the money from you within 30 days of the date of this letter I'll take you to the f***ing cleaners, sunshine." But the language doesn't make the demand unwarranted. | No. Police are not permitted to impose any punishment whatsoever. Their role in the American justice system is to prevent and investigate criminal offenses. What you're describing is a punishment for a criminal offense, even though it is imposed outside the criminal justice system. The same principles that prevent an officer from punching a suspect in the face or demanding a cash payment to not write a ticket prohibit a police officer from imposing a punishment of his own design, with or without your consent. | Are there actual laws written, or de facto situations (e.g. let's say another law specifies that a child can't be physically forced to go anywhere without causing abuse) where the child can refuse to attend? Are there "tiers" to the age; Is it true that a temper tantrum of a 5 year old would be seen as such, but the refusal of a 17 year would be legally accepted? This is a hard question to answer that doesn't have a neat resolution. Very little pertaining to the authority of a parent over a child is codified in statutory law and there is not a clear cut age at which a child has "freedom of conscience" vis-a-vis a parent. Most of the law related to children concerns allocation of parenting time and parental decision making between divorced, separated or unmarried parents; abuse and neglect; and juvenile delinquency. There is also usually a snippet of criminal law stating that certain kinds of uses of force to discipline children do not constitute crimes. But, part of why it doesn't come up very much is that older children are usually socialized in a manner that causes them to show a certain amount of respect for the wishes of their parents. It also doesn't come up much for children who aren't in their late teens, because the complete economic dependence of children on their parents or guardians gives the parents considerable power of their children that doesn't require the exercise of physical force. Also, it is quite dependent upon how the issue presents itself. No law enforcement agency is going to aid a parent in forcibly dragging a kid to church against their will. But, no social services agency is going to remove a kid from a home because his birthday party will be cancelled if he doesn't go to the church of his parents' choice the Sunday before his birthday. There are also some subtle but important distinctions between states on the issue of emancipation. In Colorado, emancipation is a statement about the empirical reality. If a child is self-supporting and lives apart from parents or guardians then the child is an emancipated minor. It is not a status granted by a court, it is a status acknowledged by courts when evaluating other issues. In California, a child is not emancipated unless a court grants a child that status and a child who is de facto emancipated without the leave of a court is guilty of a "status offense" (the New York State term for someone in this state is PINS for "person in need of supervision"). Basically, if a parent can force a child to go to church by means that don't constitute abuse or neglect and don't exceed the level of force authorize for child discipline in the criminal code, then they can do it, and if they can't manage that, then they can't do it. Many states have a "status offense" that allows government intervention with the cooperation of a parent or guardian in cases where an "uncontrollable" child is defiant and simply will not give any heed to the parent or guardian's instructions. In practice, the older a child is, the less likely someone viewing a parent's conduct forcing a child to do something is to be viewed as acceptable or legally justified. The legal rights of children in a school setting are also age dependent under the case law, although not always in a really well defined way. Controls on student expression that would be uncontroversial for elementary school students may be looked upon by the law with disfavor for high school students and clearly prohibited for adults. Perhaps one useful way to conceptualize it is that trying to make a child attend a particular kind of religious service is not considered an improper purposes for a parent of any minor to utilize the resources available to the parent to do so, but the range of resources available to a parent with regard to an adult child is much narrower. |
Do occasional guests forfeit one's single person discount? Alice lets Bob crash on her sofa 1 or 2 days per week. Is she still entitled to a single person discount for council tax? | Council tax arises from Part 1 of the Local Government Finance Act 1992. This provides that liability for the tax is to be calculated on a daily basis. If there are two residents on some days and one resident on other days, then the single person discount applies only on the days when there is one resident. Crucially for this question, however, In this Part, unless the context otherwise requires ... “resident”, in relation to any dwelling, means an individual who has attained the age of 18 years and has his sole or main residence in the dwelling. The answer to the question, therefore, depends on an analysis of Bob's residence. The single person discount should remain in place for any day when Bob's sole or main residence is somewhere else, and it should be forfeit on any day when Bob's sole or main residence is Alice's place. Where Bob sleeps will be one element considered in determining his sole or main residence, but it should not be the only one. | I'm based in England, but I'm sure the principle is similar in Canada. The night club or concert venue is private property. When someone owns or rents private property one of the main things they are buying is the right to control who is present on that property, and generally they can use reasonable force to remove people who are not authorised. Security guards generally act as agents for a property owner, tenant or similar. | While I am a U.S. attorney, the U.K. and U.S. are essentially the same on these issue in practice: "reasonable wear and tear" is a classic issue of fact to be decided by the judge (unlike the U.S. there are never juries in U.K. landlord-tenant disputes) based upon the evidence presented to him and his or her good judgment if the case goes to court. There won't be a lot of case law that is specific enough to provide guidance in your particular case (if any) because cases like these aren't worth appealing and creating case law on and because the law intentionally vests judges with great discretion on these issues and only intervenes in appellate decisions when a judge is deeply out of line. The legal definition of "reasonable wear and tear" is basically vacuous and don't provide much meaningful guidance. I know you are joking, but no, do not set it on fire. You will find yourself incarcerated for arson, with a felony criminal record and a restitution judgment in the amount of the damages and a fine and court costs as well, and your credit record will be screwed and no one will rent to you ever again if they find out by doing a cursory background check. Your mum probably won't even invite you to Christmas dinner this year. If they charge your security deposit and you don't think you owe it, you would have to sue them for a return of the part of your security deposit you don't owe, knowing that you face a risk of paying their legal fees if you lose, but will get your fees if you hire a lawyer and win (caveat: there are more nuances to fee shifting in the U.K. courts than I spell out here which are rather technical). If they say you owe more than your security deposit and you don't pay, they can sue you for the balance, knowing that they face a risk of paying your legal fees if they lose, but will get their fees if they win. In practice, it doesn't really make economic sense for either party to hire an attorney because the amount of the fees is so high relative to the amount of money at stake. The security deposit is 2-4 hours of legal time, and the amount claimed is maybe 7-14 hours of legal time, neither of which is sufficient to address the respective issues economically in a fully litigated hearing. Short of going to court, you can provide them documentation and your video to show that you are right and to discourage them from docking your security deposit (in full, anyway) or suing you, ideally A.S.A.P. before they are too committed to taking legal action. You could also propose a compromise and see if you can get them to agree to it with neither party facing the risk of going to court. | I think you vastly exaggerate the difficulty. Basically: when a user registers, ask for their address, including country, as well as a phone number (including country code, which you may validate via SMS for instance). This should give you the 2 pieces of information that help you determine the country In the case of the UK, HMRC says: Support for MOSS registered micro-businesses UK micro-businesses, that are below the current UK VAT registration threshold and are registered for the VAT Mini One Stop Shop (VAT MOSS), may use best judgment and base their ‘customer location’ VAT taxation and accounting decisions on a single piece of information, such as the billing address provided by the customer or information provided to them by their payment service provider. based on the country, use the standard VAT rate for that country. The difficulty here is to track when those rates change, but your accountant should be able to keep up with that. There is very little chance any special reduced rate would apply to such services, and in any case, no tax authority will complain if you apply the standard rate instead of the reduced one! then declare everything online to your local MOSS (you don't need to register with each tax authority! You can, but you don't need to). In the case of a micro-business, this should be more than enough to comply with the rules. | While I don't like agreeing with a landlord, you are in the right here. Your tenants do not have the right to access the property now they have moved out. If they were still living there things would be different and it would be reasonable for them to fix minor damage (to preserve their deposit). They did not do so. Get the damage fixed professionally, keep all reciepts, and take it out of the deposit. | The customers are able to leave, so there's no reason it could be a crime. Even if they weren't able to operate the lock themselves, they are presumably able to leave by asking a staff member. There is no way this could be remotely considered false imprisonment. Depending on the layout and size of the store and presence/lack of other fire exits, this might violate fire safety regulations. | It is a false statement to claim to live in one county when you actually live in a different one. It becomes perjury (a crime) when you falsely swear to that statement on your status report, and you are required to report changes in "household situation" within 10 days. There isn't an exception allowing you to give a false address "in case it costs more to report truthfully". The only legal solutions are to report truthfully and pay more, or move again, report truthfully, and not pay more. | In the small claims court cases I've been involved in the judge has dismissed all aspects of the claim related to time wasted, transportation costs, and attending court in the judgement amount itself. However the court costs one incurs should be a part of the amount that is judged in one's favour. Also the costs of enforcing any judgement (court bailiff fees) are usually considered recoverable. My thoughts are that if one is keen to ensure that the other party pays the full costs of time, collation of evidence, photocopying, phone calls, and anything else one believes they are responsible for, one will have much more luck if one is not self-representing. The predominant reason for self-representing is to keep costs, and thus one's financial risk from pursuing the case, minimal. disclaimer: this is only opinion, and not legal advice |
Can you safely do anything without infringing patents? It seems like anything non-obvious can be patented, and even private use of patented processes is illegal. Can you do anything with assurance that you aren't infringing a patent? You could read through all current patents, but (a) that would take way to long and (b) what if there's a patent for a method of searching patents to endure an activity is not infringing, which describes the search method you were using? Could someone walk up to me while I'm typing this and sue me for infringing their patent on a method for accelerated typing on a smartphone? (No they couldn't, because I'm at home and they would be trespassing, but assume I'm in a public place.) | Negligent patent infringement is — obviously — not a criminal matter, and will only become one of civil nature if a proper patent infringement notice, pursuant to 35 U.S. Code § 287(b)(2), et seq., is duly served on the infringer, and the infringement continues thereafter. (Although even in the absence of it is not legal, but no action is enforceable without) Therefore, as a practical matter, they couldn't — unless one continues with infringing conduct duly served proper notice on unless the infringement is done knowingly and willfully. Additionally, "non-obvious" is a term of art; its case-law description gives broad discretion to patent examiners, supervisory patent examiners, the PTAB as well as the Federal Circuit and the U.S. Supreme Court — as the case stands — to decide what is "obvious" and what isn't. For example, there is no case law defined upper limit of how many piece of prior art may be considered together when arguing they, combined, would make a system, method or computer program product obvious. The limitations on this generally require, for e.g, that the combination have an objective; in the absence thereof, an applicant may argue that it would not have been obvious. Lastly, it is not everywhere where there is no exception for private use; the U.S. has no such exception though. | This supposes that the patentable concept can’t be learned form the operation of the whole program and hiding the invention while making use of the invention in public is not a disclosure. However, in the US there is a famous case In re Blaisdell, 242 F.2d 779, 783, 113 USPQ 289, 292 (CCPA 1957); Hall v. Macneale, 107 U.S. 90, 96-97 (1882); Ex parte Kuklo, 25 USPQ2d 1387, 1390 (Bd. Pat. App. & Inter. 1992) that concluded a public demonstration that didn’t expose the inner workings did start the clock on a bar to patentability. See previous question https://patents.stackexchange.com/questions/20886/would-the-demonstration-of-an-invention-be-considered-public-disclosure The answer (from me) has the caveat that this is a pre-AIA case and courts might come to a different answer under that current law. The U.S. has viewed public use, especially commercial public use, as disqualifying (after a grace period) but the rest of the world puts its emphasis on actual disclosure of the inventive concept so this result might be different elsewhere. One thought experiment would be to analogize with an article in a widely available journal with the words Don’t read the article that starts on page 19 on the cover. From a disclosure point of view I do not think that is different from it being possible, but illegal, to read. | For the first question - No, patents are territorial. A US patent is not "working" anywhere else. Of course one can apply in multiple countries if the proper time frames and procedures are followed. There is a mechanism (PCT Treaty) that allows a straightforward way to apply in over a 140 countries simultaneously. Although it is frequently used, it is expensive to continue to prosecute the application in each place and even in high-value inventions only a handful of places are eventually chosen to actually pursue patents. Each country's/region's laws and processes are different and success in patenting can vary. Normally two countries would not have the same thing patented by different inventors. The patenting or publication of the first one would make it prior art to the second filed one. This should be found by the second examiner and stop a duplicate patent by a second inventor. However there can be subtle differences between similar inventions and mistakes do happen. In the case of true simultaneous invention this can happen. To get a patent, the invention must be novel - that means no one has published or patented it anywhere in the world at any time in any language. Before the AIA law in the U.S. the law said "or known in this country". It could have made a loophole where something was known publicly elsewhere but did not constitute prior art in the U.S. That is now changed to be world-wide. Even if the examiner does a world wide search they might miss something and a patent might get issued even though the invention was not novel and a patent elsewhere is granted. To invalidate it the original patent owner would need to look into available procedures in country A. It might be court or it might be administrative. In most places an annual “renewal” fee must be paid to keep a patent in-force. In the U.S. a “maintenance” fee must be paid at the 3.5 year, 7.5 year and 7.5 year points in order to stay in-force. A patent who’s renewal or maintenance fee hasn’t been paid is expired for fee reasons. That can imply that it can be revived by the patent owner by paying the fees and usually a penalty. There may be a time limit or a small set of allowable circumstances to revive. A patent labeled expired for fee reasons might now be past its normal lifespan and therefore not revivable. In general patents are given to inventors and those an inventor assigns their rights to. Someone else can’t come along and revive a patent they had nothing to do with originally. There is no “re-patenting”. | Do you have permission of the person? In general, product names fall under trademark law, not copyright. And while it's possible to use the name of a non-employee as a trademark, doing so without the permission of that person is rather dangerous. That person may sue you for a number of different reasons, with different demands - chiefly financial compensation or a rename of your product. | Without a patent, your inventions are not protected (except as trade secrets). If you publish your findings, anyone can use them. It is possible to patent the specific design of your chassis. Design patents, which cover the specific aesthetic design of something, can be less expensive than utility patents, which cover functional aspects. Although your chassis is designed with functionality in mind, it will also embody an aesthetic design. That said, enforcement of patent rights (or any other rights you might hope protect your chassis) is orders of magnitude more expensive (typically millions of dollars) than merely obtaining a patent. Thus, even if you do obtain protection for the chassis design or the method of designing it, your budget may make it impractical to effectively take advantage of those protections, unless a law firm is willing to take the case on contingency. | It's not fair use. Fair use is when you do something that normally only the copyright holder can do. Playing a video game is the ordinary, intended use of the work. In the United States, ordinary use is not protected by copyright. 17 USC 106 sets out the rights protected by copyright. The include copying the work, producing derivative works, distributing the work, and so on. None of these are ordinary use. Someone could perhaps argue that you are creating a derivative work. I doubt that argument would work because you are not taking any protectable elements from the work. But if anyone did argue that, it would make sense to also argue that if that's so, your use would still be covered under fair use because it's transformative, does not substitute for the original work in any way, and takes very little of the work. | Many patent applications do not publish until 18 months after they are filed, but can be used as prior art as of their filing date. Therefore, it's not possible to find all the potential prior art that could be used against an application (assuming it hasn't been filed yet, or was filed in the last 18 months). Further, even if all the potential prior art were already public, it isn't especially practical to go through all of it. It sounds as if you've put in a good effort looking for prior art already. At this point, it may be best to file the application and see what the Examiner finds. Also, remember that if you do turn up any prior art that's material to your patent application, you are obligated to disclose it to the USPTO. | Negotiate a licence Of course, your chance of doing so are not good - computer game companies routinely pay millions to use trademarks like this (and they usually get exclusive rights) and that’s probably out of your price range. Stopping you doing what you want to do without paying for the privilege is effectively what trademarks exist to do. If the usage was incidental and clearly used Star Trek IP to identify Star Trek products, like the usage in The Big Bang Theory TV show, then that’s OK. However, your usage is using Star Trek as the core of the product and that’s not OK. Others have suggested that the trademark owner may not pursue you - that’s unlikely. Unlike copyright, trademarks that are not defended can be lost - this trademark is worth billions, they will happily spend tens of thousands to grind you into the dust. |
How to find a lawyer to hire The site linked here gives far to little information to choose. How should one deal with such a situation? Why does such a site give so little information? | The best method of finding a lawyer varies by practice area and type of matter and type of client. What makes sense for a DUI case to find a lawyer may not make sense if you are looking for a general counsel for a medium sized company. Word of mouth referrals are a good place to start if you can use them. Many good lawyers don't advertise very heavily because they can get all the work they need from word of mouth referrals, and this also screens out obviously bad lawyers. Many state bar associations provide lists of attorneys who practice in particular areas. See, e.g. the Colorado Bar Association Find-a-lawyer page. Even if they don't you can look at members of relevant bar committees in the area you need work done. Sometimes courts also provide lists of lawyers that practice in their court regularly. For example, the Denver Probate Court's in person clerk's office desk has a list of lawyers who work in the probate area. Looking at lawyers who represented someone similar to you in a court document from a similar case can also be fruitful if you can locate any such documents. In federal courts, if you know of a case, you can user the PACER system to locate court documents listing the lawyers in the case. Some state and local courts make documents filed in those cases available online. Look at websites offering continuing legal education courses for lawyers and contact lawyers teaching classes in practice areas where you need assistance. Looking for state bar journal articles on practice areas you need and contacting the authors of those journals can also be fruitful. Another strategy is to call lots of lawyers and ask for referrals from firms that can't take your case because they don't practice in the area where you need assistance. I get multiple cold calls every week in areas where I don't practice and I am routinely asked for referrals and make a good faith effort to provide them when I can. Another plus of this method is that even if you don't get useful legal advice or referrals from a cold call to a law firm, you may get clarification from the person you call about what kind of law or practice area is implicated in your case. For example, many people who really need probate work self-identify as needing real estate work because they want to clear up title to real estate owned by a dead person. And, a cold call might help focus your search on the right kind of lawyer. Similarly, you might call ordinary criminal lawyers for your case and find out that you really need a specialist white collar crime lawyer. In the U.K., hiring a barrister has historically often been intermediated by an individual known as a barrister's clerk, often working with a solicitor for a client to find a barrister for the client. Why does such a site give so little information? Historically, lawyer advertising and marketing was heavily regulated. Vestiges of those regulations remain common practice and still are part of the law in some jurisdictions. In particular, claims of having specializations, special expertise, and high success rates have been closely regulated. | In theory, a store can ban you or anyone else for any reason except those protected by law against discrimination. As a practical matter, you potentially have various forms of recourse. The first thing to do is to write the the CEO of the chain, with a long detailed letter describing the incidents, and naming names. Most CEO's don't want to deal with this kind of bad publicity, and will at least order an investigation, and make amends, if the internal investigation is in your favor. This would apply even to the late Sam Walton, if the chain is WalMart, or whoever the current CEO is. If you are a member of a protected minority, or even have dark skin, you can sue the chain on those grounds. There will be a presumption that they barred you on grounds of race or color. Then the burden of proof will be on them to show that they didn't bar you for those causes. As a form of "entrapment," you should take a witness, basically the most influential person you can get hold of that's not a family member, to the store with you to ask them why you were barred. The mayor of your town would be ideal, more llkely it would be a boss, teacher, or clergyman, but in any event, someone who knows you well. If you can get them to accuse you of stealing in front of this third party, you have the makings of a defamation case. And even if you aren't a minority, you can sue them anyway. You can demand "discovery" of all internal documents, videos, etc. relating to your case. Your lawyer will also the right to "depose" (cross examine) all offending managers.There's a good chance that something embarrassing will turn up in the process. (Many defendants settle in connection with discovery.) You might want to hire a second (libel) lawyer to teach you how to publicize the case without running into libel laws. If all this fails, the store can probably bar you, but you want to make it prohibitively expensive for them to do so, meaning that most rational people wouldn't bar you after the above. If they do, they're not rational and you're better off not using the store. | Your kid is not in trouble; he's a minor. You're in trouble. A criminal case for the charges a prosecutor would bring, i.e. destruction of property (the data) or for a relevant cyber or computer crime (malware, etc.), and/or a civil case for damages due to the destruction of the data would both hinge on one point: the concept of intent. See intent - Wex Legal Information Institute and Civil Law vs. Criminal Law: The Differences | Rasmussen College. Did you knowingly intend to cause damage or data loss with the structure of the name? It's pretty clear you did. The structure of a name that can invoke an SQL command is not in any sense a standard name in spelling or format or punctuation. So how would you convince the jury or judge that you had no intent when you named your kid? The possible poor design of a data system that didn't sanitize inputs is no defense. Saying the door was unlocked so I assume the homeowners didn't care if I trashed their house will get you laughed into jail or on the hook for a stiff civil judgement. | I checked actual cost. It is just under $400 per month for one license. Here is a cost breakdown if you want some things a la cart and others blanket license. They are a LOT of money and are cost prohibitive unless they are used as a part of your legal practice. That said, everything available on Lexis or Westlaw are available at other, free sites. If you are looking for state and federal statutes, as well as precedent setting cases, those can be found on Findlaw (and other similar sites). Each state also publishes all of their statutes online, as well as law court decisions. The same is true of statutes and legislation. Legislative history can be obtained at any law library. These places also have free access to West and Lexis on their public computers. So they charge a premium for the convenience of having everything in one spot, as well as a variety obtain of other services that wouldn't be relevant to lay persons (like Accurint). I should amend to say Lexis/West does have things that you cannot just get online such as treatises practice guy, forms, etc. What I meant when I said that you can get pretty much everything for free online was statutes, case law, regs, etc. | Small claims court was created for such matters. There is the possibility of a fee waiver, and if you prevail, you could get some of your costs covered (though there are other hoops to jump through if you need enforcement). A formal letter (written by you) stating that you intend to seek a legal judgment against him/her in the amount owed might be sufficient motivation for the person to pay what is owed. | Yes, the correct forum is the Local Court in the relevant state (in some states these are called Magistrate's Courts). The amount is too large ($10,000) to qualify as a small claim . If you want to do it yourself the court websites are very informative and in NSW, at least, the process can be initiated online including your paying for the Sheriff to serve the summons (they will not find the person, you have to give them an address). After being served they have 28 days to file a defence or you can get a default judgement and begin recovery. If they do file a defence then things will get more expensive. Of course, you may want to hire a local lawyer. | First I should point out that the Google question is about a different situation, the "snippet" issue where a tiny part of a web page is redistributed, where the issue of resolved in the US by appeal to the "fair use" defense. The proposed scenario as written here is broader since it would go beyond a couple of lines, and goes up to the limit of copy an entire web page. That is copyright infringement, with or without an associated link. Copyright protection is not just about attribution, it is about control. If you can limit your copying appropriately, you may survive under a fair use analysis; but you need to hire a lawyer with experience in copyright litigation to vet your notions of what is "a small amount" etc. | Is there a law requiring a landlord to respond to rental agencies request for information in regards to previous tenants? No. There is no such law. |
Could a juror research legal or scientific information online to assist him in rendering his verdict? Before anyone asks I am not a juror, I'm not researching things during a case, I promise I'm not being contemptuous inside or out of a court :) There are a number of strict rules about what a juror can do during a trial. He can't talk to others about the case itself, look up more details about what happened in the case, or try to investigate the case itself. There are good reasons for all of this. I'm wondering though if there is any room for any kind of research within those rules in his attempt to be the best juror he can be? So lets look at the 'most forgivable' attempt a juror could attempt to try to help him make a decision. If A juror, in the evenings between trial dates, were to research legal theory and presidents relevant to the trial he is a juror on, but nothing about the specific case, would this be permissible for him to do? For example say our juror felt the (often deliberately obfuscated by one of the lawyers as I understand) instruction given to the jury prior to the start of the case was so confusing he didn't know what his responsibilities were, so he tried to look up what the jury legal expectations online. Or as another example maybe he vaguely recalled something about jury nullification being possible and wanted to argue for it in this case, but first researched the particulars about when and how a jury was allowed to nullify a case. Would this potentially be considered permissible? Moving on to an even 'greyer' level, what if the Juror were to read about a scientific principle that could be relevant to how he would vote online, without asking about any of the specifics of his case? lets say a mother is on trial for causing her babies death and one expert says they are 100% certain the death was caused SIDs or some other disorder and there is no way the mother was responsible and the other expert says there is no way that SIDs could be responsible and the evidence is clear that the mother killed the child. If our Juror felt like he didn't know enough about SIDs to have any idea which expert he should believe and decided to hope on the Wikipedia page on SIDs and read about it in more detail in hopes of being better able to judge which expert's testimony felt more logical afterwards is there any chance this could be permissible? And to throw out an almost certainly not allowed example, if the Juror looked up the two experts and saw that one was highly respected and the other has been accused of accepting high fee's to provide expert testimony that happens to fit whatever the lawyer wants to prove, causing our Juror to rule for the side with the more respected expert, I'm guessing he would get removed? | The most innocent of your scenarios is "against the rules", so less innocent acts fair worse. The idea behind researching legal theory and precedent (presumably not presidents) is that surely it is good for a juror to know what the law is. But that thinking is wrong. The judge will instruct you as to what the law is, and will also instruct you that "the law" is limited to what he says it is. I will draw on the instructions for an antitrust case, Best Buy v. Toshiba, HannStar. The core instruction is: It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. The preliminary instructions (the pattern instructions for California civil trials) say the same basic thing: At the end of the trial, I will explain the law that you must follow to reach your verdict. You must follow the law as I explain it to you, even if you do not agree with the law. The judge instructs the jury that: When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true. Your research might find alternative statements of the law out there, which seem entirely plausible. That doesn't matter: you have to set aside whatever ideas (about the law) that you've gotten from anybody besides the judge. In fact, if the judge makes a (serious) mistake and rules against a party in a manner that is contrary to established law, and you know this (it doesn't matter how), you are supposed to apply the law (including rulings during trial as to admissibility) as given to you by the judge. As for a case of a juror knowing that the judge was mistaken (specifically, knowing based on his pre-existing knowledge of statutes and case law – not based on forbidden research during a trial), we can get the "should" from the absolute instruction to follow the judges instructions. Additionally, if you read transcripts of voir dire (not a trivial task), you can observe judges probing attorneys who happen to be in the prospective pool, asking questions to determine whether that person can just do as they are told. But it would be difficult to establish a "hard rule". There never will be an instruction that says "You must follow my orders even if you know for a fact that my orders are wrong" – jury instructions never admit the possibility of judicial error. | It is not as simple as the witness just making the assertion that they are the killer. They will be subject to grueling cross examination to break their story. If the victim was killed at a specific time, perhaps the prosecution can prove the witness was somewhere else at that time, and therefore lying. (No Opportunity) If the victim was killed with a specific weapon, perhaps the prosecution can prove that only the accused had the weapon, and the witness had no access to it, and therefore lying. (No Means) If the victim was killed in a specific way, perhaps the witness doesn't know any of the details of how the crime happened, and therefore is not credible. (No Knowledge) If the accused's DNA is found at the scene, and their shirt is covered in blood, and the witness has no corroborating evidence against them, then the witness is likely lying. (No Evidence) If the witness claims he is the murderer, the prosecution can inquire as to why he killed the victim. The real murderer had a reason: Perhaps money, power, hatred, passion, etc, that the witness may not be able to provide. (No Motive) Planting doubt in the mind of a jury is an effective defense. But lying about who did what, when, how, and why it is not as easy as you suggest. | Yes, there is a good chance. Ordinarily, the law as written is what is enforced. On occasion, the wording of the law is actually ambiguous, or vague, which means that the jury will need an instruction as to how to interpret the law. In fact, juries are not literally read the statute, they are given a set of decision-making instructions so that they can decide "If we find X, we must acquit; if we find Y we may convict". Your attorney will, if he is diligent, note the problem and strive for an instruction that favors the client. (The prosecution will of course object). Eventually, on appeal, a court will decide what the law "really means", and that decision might be strictly based on the letter of the law, or it might be based on a supposed spirit of the law, i.e. what the legislature "originally intended". That outcome is determined in part by the jurisprudential ideology of the prevailing justices of the appeals court. Usually, letter of the law prevails until a higher court rules that a particular "spirit" is what was originally intended. | The legal question is whether you can be convicted of a crime under the laws of some jurisdiction on earth. I'll start by assuming that you are in a jurisdiction where you can legally possess firearms and carry them in public. Since you added "and commits suicide", I assume you're not asking if it is a crime to drop a firearm, the question is just criminal culpability for this consequence. Now we will zoom into the laws of a specific jurisdiction, Washington state. RCW 9A.36.060 says A person is guilty of promoting a suicide attempt when he or she knowingly causes or aids another person to attempt suicide. The question then is whether your act "knowingly causes or aids" an attempted suicide. You turn to the jury instructions to see what that means: A person knows or acts knowingly or with knowledge with respect to a [fact] [circumstance] [or] [result] when he or she is aware of that [fact] [circumstance] [or] [result]. [It is not necessary that the person know that the [fact] [circumstance] [or] [result] is defined by law as being unlawful or an element of a crime.] If a person has information that would lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted but not required to find that he or she acted with knowledge of that fact. [When acting knowingly [as to a particular fact] is required to establish an element of a crime, the element is also established if a person acts intentionally [as to that fact].] The outcome depends on specific circumstances. For example, "accidentally and unknowingly drop and leave" will not sustain a conviction. "Intentionally drop and leave" could, but you would also have to other information connecting the suicide to the availability of a weapon. If you intentionally drop and leave a firearm at a shooting range, a reasonable person would not think "OMG someone might see this weapon and kill themselves with it! Hahaha!". You can spin a yarn where you know that Smith is suicidal and will kill himself if he has a weapon, so that dropping the gun off constitutes "knowingly aiding". | There are circumstances in which medical ethics historically authorized treating physicians to defer sharing information with patients or even to mislead them in their best interests medically, although the scope of what is considered ethical in that regard is narrowing. But in the fact pattern described in the quoted material there is no plausible way that this withholding of information could be justified. If it was intentional (or for that matter, even if it was negligent) there could be grounds for tort liability for harm caused as a result (although causation and damages are hard to prove). On the other hand, just because it could give rise to tort liability, doesn't imply that the action is necessarily a crime, at least without some kind of motive other than random spite to intentionally provide a false result. However, it is quite difficult to come up with a believable reason that this would happen to someone at random. If the person taking the test bribed someone to provide a false result, which is plausible, that is one thing, but just doing it randomly really doesn't make any sense. The fact pattern provided sounds like it doesn't include the "full story." Why keep records of the actual test results (or for that matter why do the actual tests at all) if you are merely going to intentionally provide a false negative? | This is, in effect a defense of mistaken identity, and an assertion that the person on trial is not in fact the person who committed the crime. It is not legally significantly different from a case where the defendant claims that a witness has identified the wrong person. Exactly how the defense would be conducted would depend on what evidence establishes that "Herschel Greenbaum" committed the crime, and what evidence establishes (or disproves) that the defendant on trial is that same Herschel Greenbaum. The purpose of a trial is to establish or fail to establish the guilt of the person actually on trial, normally the person present in the courtroom. (trials do not establish innocence in the US). "The defendant" is the person actually on trial, even if an incorrect name has been used in bringing the charge. In such a case people would need to be careful about evidence that applies to a person named "Herschel Greenbaum" but might not apply to the defendant actually on trial. | This seems to be a mix of question about law and a meta-question about this site, but I'll treat it as an on-topic question about law. The author of a question, or answer, owns the copyright to their contributions, and they can re-publish to their heart's content. Any user who posts here grants a license to SE and other users to use content posted here, so I don't have to ask you permission to quote you. As part of the permission granted by SE to use this website, you have agreed to "follow the rules" set by SE. There are many rules, some spelled out more clearly that others. For example, if you post a question, you indirectly agreed that your content can be upvoted or down-voted. Certain content can be "closed" and deleted, when the content is deemed to violate the rules in particular ways (is spam, porn, abuse, or judged to be poor-quality). Judgment (on different matters) can be rendered by community managers, moderators, or other users. The agreement is here, see especially here. If we take the post that you linked to, it is quite possible that it was deleted because it is not a general legal question, in violation of the acceptable use policy. If you want a historical analysis of your particular case, it should be asked on Law Meta. | Yes. This is legal. See, e.g. SPARF v.U.S. 156 U.S. 51 (1895); U.S. vs Moylan, 417 F 2d 1002, 1006 (4th Cir. 1969); U.S. v. Krzyske, 836 F.2d 1013 (6th Cir. 1988) ("the jury asked the judge about jury nullification. The judge responded, "There is no such thing as valid jury nullification." The jury convicted the defendant. On appeal, the majority and the dissent agreed that the trial judge's instruction was untrue, but the majority held that this false representation was not a reversible error."). Indeed, procedurally, the system is specifically designed to prevent courts from even considering such a question. See also, e.g. People v. Iannicelli, 2019 CO 80, § 2 (Colo. 2019) (holding no crime was committed) ("Defendants Mark Iannicelli and Eric Brandt stood in the plaza square adjacent to the Lindsey-Flanigan Courthouse in Denver and asked people entering the courthouse whether they were reporting for jury duty. If any of these people answered affirmatively, then Iannicelli and Brandt would hand them one or more brochures discussing the concept of jury nullification, which the brochures defined as the process by which a jury in a criminal case acquits the defendant regardless of whether he or she has broken the law in question. As a result of this conduct, the People charged Iannicelli and Brandt with multiple counts of jury tampering") This is deeply entwined with the U.S. law interpretation of the Fifth Amendment Double Jeopardy Clause's protections, which prohibit a retrial or appeal following a judgment of acquittal, which have been incorporated by the U.S. Supreme Court as applicable in state courts as well. |
Could a British monarch refuse royal assent if an act of Parliament was very unpopular? If I understand correctly, Royal Assent is still required for all Acts of Parliament, but is now just a formality and has not been refused for hundreds of years. What if Parliament passed a law that was very unpopular with the people? Would having the support of a large majority of the people affect whether or not the monarch could refuse royal assent? | This would surely be a constitutional crisis in a country where the constitutional order is spread over many separate laws and traditions. The UK is generally accepted as a genuine democracy which has a monarch for reasons of tradition, and which lets the monarch sign some things as head of state which are decided by elected officials. The parliament dominates the crown-in-parliament, for all the ceremonial importance of the monarch. So by this reasoning, the elected officials should win the power struggle. Yet it also retains vestiges of the old order e.g. in the House of Lords. It would come down if the popularity of the monarch's action outweighs the genuine pride of the Brits in their democratic traditions. | In simple terms it was part of a wider effort to consolidate and simplify criminal law referred to as the Criminal Law Consolidation Acts 1861 (which were themselves revisions of the Peel Acts) Basically the sheer number of acts was causing administrative headaches - the courts and parliament were losing track of what was and wasn't in force. Since at least nominally ordinary English folk were supposed to know the law it was getting a bit ridiculous that the people whose literal job it was to make and adjudicate these laws weren't able to! In the words of James Bigg Esq: It would be superfluous to attempt to enumerate the causes which have led to the passing of these statutes : the circumstances which led to their occupying the prominent attention they have received were twofold: ist. The Court of Queen's Bench, a few years since, spent some time in solemnly considering the effect of an act which was afterwards found to have been repealed some years previously, but of which repeal both judges, counsel, solicitors, and all the parties concerned were, at the time, profoundly ignorant, and 2nd, Very nearly at the same period an act was formally passed by Parliament to repeal several acts which had been actually repealed about 20 years previously. As it is a legal axiom that every Englishman is presumed to know the laws of his country, and as the preposterous proceedings just mentioned cast a grave suspicion before the eyes of the public upon the accuracy and extent of the knowledge even of judges and legislators, it was felt that some means ought to be adopted to determine with clearness and precision what laws were really in force and what were abrogated : hence arose the question of “Statute Law Reform,” which for many years has received the intermittent attention of the legislature, and been handled by commissions of inquiry almost innumerable and uniformly expensive. PS: If you're interested in the general topic of how these acts came to be and the legal environment at the time it's well worth reading the whole "Preface" section of the book I linked to above. | It seems to me that some commentators/articles have inadvertently conflated different legislation and a recent event involving the seizure of equipment from protester Steve Bray in Parliament Square. Some articles about Steve Bray have named or otherwise referred to the Police, Crime, Sentencing and Courts Act 2022 without an explanation of any link between that person and this law - to me there is no link in the context of Bray's equipment seizure (the police may have mentioned other newer powers to Bray). Among other things, section 143 of the Police Reform and Social Responsibility Act 2011 (as amended) explicitly prohibits the unauthorised use of "amplified noise equipment" (including but not limited to loudspeakers and loudhailers) within Parliament Square and (the amendment) "the Palace of Westminster controlled area". Westminster Council provides a map in pdf format of the respective areas: Appendix to Protocol for enforcement of provisions in relation to noise nuisance in the vicinity of Parliament. Before the PRSRA 2011, sections 137 and 138 of the Serious Organised Crime and Police Act 2005 gave the Home Secretary the power to prohibit the unauthorised use of "loudspeakers" in "designated areas" no more than one kilometre around Parliament Square. Part 3 of the Police, Crime, Sentencing and Courts Act 2022 amends the Public Order Act 1986 in relation to "public processions and public assemblies", including clauses related to "noise". Section 78 of the Police, Crime, Sentencing and Courts Act 2022 abolished the common law offence of public nuisance and created the statutory offence of "intentionally or recklessly causing public nuisance". This more recent legislation has been criticised in relation to protests generally (not solely those that involve megaphones), e.g. by the Joint Committee on Human Rights its witnesses in their scrutiny of the-then Bill. Quote: The Bill introduces a new statutory offence of “intentionally or recklessly causing public nuisance” which was previously an offence at common law. There is a wide range of non-violent conduct that may be caught by the statutory offence, which potentially criminalises some forms of peaceful protest. The offence carries a maximum sentence of 12 months if tried summarily and 10 years if tried on indictment. A person can also be issued with a fine.77 A number of our witnesses raised concerns about the impact of these changes and its compatibility with Articles 10 and 11 of the ECHR. We share some of those concerns. In summary the explicit prohibition of "amplified noise equipment" is limited to Parliament Square and "the Palace of Westminster controlled area" but one can easily imagine the police claiming that a protester's use of a megaphone is a public nuisance. | There's no law as such; it's just an age-old mark of respect that a visiting Royal not sit on your throne. The Queen has encountered other royal families so it makes sense that she'd know this tradition, and was likely just being humorous on the Game of Thrones set. That or she decided the Iron Throne didn't look very comfy! | This is known as a retroactive or ex post facto law. Such laws are explicitly forbidden by the US Constitution (Wikipedia reference), and are generally frowned on in jurisdictions where the rule of law applies, partly because it is difficult to prove criminal intent when your action was not at the time criminal. | You have to distinguish between the Tory party and the UK parliament. The UK parliament just had a vote of no confidence against Theresa May and lost. Had they won, parliament would have had to come up with a different government (for example the same government except for a different PM, or a government formed by the current opposition) that would have a majority to rule, or there would be new elections. The Tory party could legally do lots of things, but they are bound by their party rules. They had a vote of no confidence against Theresa May maybe a month or so ago, and she won. According to the Tory party rules, there cannot be another such vote for one year, so right now and for the next eleven months, they can't replace her. If that vote a month ago had not happened, they could. But that is all not because of some law, but because of the rules this party set for itself. | No Always assuming that the government has operated within the limits of its powers or, at least, that if they have exceeded those powers the excess was in good faith. First, there is the issue of sovereign immunity. Basically, a government can be held liable only when it consents to be held liable. Most governments never waive this with respect to their lawmaking powers because they have to be able to make laws in what they see as the public interest without fear of litigation. See, for example, cases on plain paper packaging of cigarettes. Second, most governments have the power to regulate commerce and to deal with public emergencies. There is an issue which comes up in Federations about which government has the power but even if a law is invalid, it does not follow that compensation is payable. It certainly isn’t if the law is valid. | The change in the royal title came about following the Imperial Conference of 1926, when the various governments of the Empire agreed that "the group of self-governing communities composed of Great Britain and the Dominions" were "autonomous Communities ... equal in status". The Conference declined to pursue developing any kind of Imperial Constitution, preferring instead to draw out a few specific consequences of that agreement. In the Balfour Declaration, section IV(a) asks for legislation to change the King's title. There is also a longer discussion in V(a) about treaties, which affects the examples that you give in the question. Both of your 1930 examples follow the recommendations in this Declaration. The convention on conflict of nationality laws is entered into by the King, with the governments of his realms separately represented and enumerated. It lists two plenipotentiaries "For Great Britain and Northern Ireland". The omission of "the United Kingdom of" is not material, much like talking about "the Kingdom of Sweden" versus just "Sweden". The agreement on Bulgarian financial obligations is between the Government of the United Kingdom of Great Britain and Northern Ireland, and various other governments. They both refer to Northern Ireland rather than Ireland but differ in form because they use the different structures of a treaty between sovereigns and an agreement between governments. As noted in the Declaration, prior usage was not always obvious to interpret, because of confusion about whether (say) Canada was meant to be bound by a treaty entered into in the name of the King of Great Britain. Likewise, R v. Jameson [1896] 2 QB 425 is an important case on extent of legislation to British possessions - in the past, it was not always explicit whether an Act was for the UK only, and this had to be deduced from context. In debate on the 1927 Act in the Commons, the Home Secretary Sir William Joynson-Hicks (as he then was) said: It is clear that it is a misnomer to continue to talk of "The United Kingdom of Great Britain and Ireland." Quite obviously, since Southern Ireland has been granted Dominion Home Rule, there is no such thing as "The United Kingdom of Great Britain and Ireland," but there is still "The United Kingdom of Great Britain and Northern Ireland." Consequently, after full consultation and interviews with the representatives of Northern Ireland, with the Government of Northern Ireland, it has been decided to ask the House to alter the title of Parliament- and to make it "The Parliament of the United Kingdom of Great Britain and Northern Ireland." and: Certain portions of Ireland have, as it were, slipped out of the United Kingdom, and we now call it the United Kingdom of Great Britain and Northern Ireland, but it is still the United Kingdom, and this is still the Thirty-fourth Parliament of the United Kingdom. It is clear that he - on behalf of the government - saw the Act as sufficient to change anything already defined in statute which needed to be changed. (It was also debated whether the Great Seal needed to be renamed as well, etc.) The change to the name of the country did not need statutory authorization in contexts where the old name was not required by statute. Diplomatic formulae are not statutory and so aren't mentioned here; the royal prerogative is already enough for the treaty language to be as envisaged going forward. British passports also changed in 1927 to using "United Kingdom of Great Britain and Northern Ireland" in place of "and Ireland". At the time, passport issuing was entirely on the basis of the royal prerogative, without any legislative regime. Various other official publications, like statistical reports, used the new name going forward. Some other provisions in the Declaration were given effect in the Statute of Westminster 1931. This should be seen as part of a continuing effort to let the legal situation follow the policy (Commonwealth nations are equal autonomous peers) which itself followed the facts on the ground (the UK government could no longer expect to rule them directly). So there was not precisely a "flag day" when the UK's name changed, but there was a process of recognizing that the name ought to change, some wrangling over how, and the fairly rapid implementation of the change in 1927, at least on the part of the UK government itself. |
Is taking screenshots and printing pages out considered fair use, in most cases? Making a copy of anything could be considered copyright infringement, but what if it is for personal use rather than for distribution? Suppose I print out or take a screenshot of a webpage or a lecture presentation or an eBook and store it somewhere? Would this be likely to be fair use? I would guess the answer is no in some cases (you cannot copy an entire eBook intended for temporary use), but yes in most cases, such as if I print out or download a page on a publicly accessible webpage for personal use. | It is not possible to say that this is generally fair use, although sometimes it would be. A copy for personal use is still a copyright right violation on its face, and fair use does not categorically exclude non-commercial or personal use of copyrighted works. It is a highly fact specific inquiry. The likelihood of anyone discovering that you have done so and deciding to sue over it is slight, but that doesn't mean that there isn't potential copyright infringement liability. Compare this to speeding. People do it all the time, and even driving one mile per hour above the speed limit is still a traffic violation. But it is rare for less serious violations to be ticketed. | From the perspective of US law: Scenario 1: Removing the watermark is perfectly legal, obviously. You own the copyright. Scenario 2: Abandonware is not really a thing in the US when it comes to copyright (and the Wikipedia article you linked says this.) Even if the company went out of business, the copyright almost certainly went to somebody - the former owners, the creditors, etc. As far as the Internet Archive goes, they are taking advantage of an exemption in the DMCA's anti-circumvention provisions, along with the copyright exemption found in 17 USC § 108. But both of these exemptions require you to be a "library or archive" to take advantage of them, and you are not a library or archive, so you cannot take advantage of either. As a practical matter, if the software is really abandoned it's unlikely that anyone will actually come after you for infringement, but that's not quite the same as it being legal - you could be on the hook for up to $150,000 in statutory damages per work infringed, if the owner does sue you. You could attempt to claim fair use, of course. If the image is abandoned you might get a favorable result on factor 4 of the fair use test (the effect on the market for the original) since there's no market if nobody can find the owner. But it would depend on the other factors; that alone wouldn't get you fair use. Scenario 3: I'm not sure where you get the idea that downloading a copyrighted image to your desktop is somehow protected. It isn't automatically legal to save a copy of something just because it's on the Internet. And the existence of a watermark may indicate that someone wanted to prevent the file from being copied. The website containing the image will likely have terms of use, which may indicate whether or not you're allowed to make a copy. For example, Stack Exchange's TOS says in part: Subscriber may download or copy the Content, and other items displayed on the Network for download, for personal use, provided that Subscriber maintains all copyright and other notices contained in such Content. | Your title and your question are totally different. If someone pirates a book, makes printed copies, and sells them for profit, that's the point where it switches from plain copyright infringement to being criminal copyright infringement. Which means jail instead of paying damages is possible. If you buy one of these printed copies, not knowing that they have been created illegally, and not being willfully ignorant that the printed copies were created illegal, then you didn't commit copyright infringement yourself. Since you are asking the question, it's obvious that you now know that there was copyright infringement, and buying any more copies would be encouraging copyright infringement with no excuses for you. You can be sued for damages. It is unlikely to happen since suing takes likely more effort than getting any damages from you is worth. The correct thing to do is ask the seller for your money back and destroy the copies. If they don't refund your money you can inform the copyright holder. | You automatically have a copyright in any copyritable things you create. So you own copyright over the pictures you sent him (as long as you created them) | No These are derivative works and making them is copyright breach. Doing this as a hobby or even for the entertainment of friends in private is likely fair use. Distribution or performance in public (monitored or not) is likely not fair use and you would need a licence. Here is a summary of the relevant law in australia. | Copyright Prominent at the bottom of the page is: © RealClearPolitics 2015 This is nice because it tells you who you have to approach for a licence. If it wasn't there the material would still be copyright you just wouldn't know who owned the copyright. Questions So: If I'm looking to build an app or write a book and I wish to use statistics, am I allowed to basically use their numbers as long as I cite where it is coming from? No, unless what you do constitutes fair use and I don't think it does. If I do make a profit from it, do I owe any royalties to the original scientists/surveyers? No, but you would owe whatever licence fee you negotiated with the copyright holder, ostensibly RealClearPolitics. Must I ask them for permission? Yes, unless you are OK with running the risk of being sued. Commentary I see books reference hundreds of studies all the time This is because they are generally protected by Academic Fair Use public polls should be open information to everyone The only public poll that I know of is an election and that information is available. What you are looking at is a private poll commissioned by and paid for by RealClearPolitics and it is their intellectual property; why should that "be open information to everyone"? commercial interests may be legally entangling Always | In Australia at least I am not sure that the usage you describe has ever been legal. The University of Melbourne Copyright Office sets out when you may copy a television program for personal use and fair dealing for research and study. In short for personal use, you may: use any format you like - if you can find a working VCR; go for it. Not lend or sell the material; it must be for your own private use. This means you must be there when it is displayed and it must be in a private place. For example, you can invite friends to your place or go to a friends place and watch it together. The thing you are copying must be legal - you must have bought the original, have a current pay TV subscription (at time of recording) or it must be a free-to-air broadcast. | It turns out that there is no difference between the ethical answer and the legal answer, in this case. The law recognizes the property right which a person has when they create a thing, such as a font, and that right is encoded in the law of copyright. The relevant US federal code is contained in Title 17, which you can read (essentially identical laws exist in virtually or perhaps actually all countries). The important thing to understand is that there is not a distinction between "privately" trespassing on a person's property and "publicly" trespassing on a person's property. The violation of the owner's property rights comes from taking the material without consent. There is a legally-recognized exception to the owner's rights, in the form of "fair use", which is widely misunderstood to mean "if it's not for profit, the property owner has no legal protection". Simply taking and using someone else's IP non-commercially is not "fair use". |
I have the keys to a friends house for when he's out of town So a friend goes out of town on a usual basis and has handed me his keys in case I need to manage incoming and outgoing packages when he's away. He has also said that I can crash when he's away. I am happy to help him! But I am worried of the legality of being in possession of his keys. What if something happens, am I liable because I have a set of keys. Thanks | You aren't liable unless you do something stupid with them. Possessing keys doesn't make you the owner, it makes you someone with keys. That said, we could probably come up with negligent things you could do that would be a problem. Like have a huge heroin party (let's assume this is a thing) filled with minors in the back yard. The family of an overdosed kid would have a good action against you personally for being so negligent, and also probably against the homeowner and their insurance as the property owner. If the party turned wild and the house burned down, the owner would likely have good action against you as well. I doubt this is really a problem for you, so there's no need to worry. | Once your rental contract starts, your landlord must give you access to the rented flat. If he doesn't do so he is in breach of contract. You could sue him, but that would be a bad start for a longer term contractual agreement. It might be less time and effort to look for a new flat. And do you really want to be in a long term contract with someone who breaches contract right from the start based on arbitrary reasons? In any case, you can and you should cut the rent proportionally for every day without access to the flat. Your landlord has by no means a right to check your luggage. Even if there would be such a regulation in the contract, it would be void, because of invasion of privacy. It looks to me that you are in for some bad times with such a landlord. I can assure you that most landlords are not like this. Another reason to probably look for a new flat. Legally you are right, but what does that help you if your landlord is trouble? | Residents agree that the receipt of mail by any individual not listed as a Resident or Occupant in this Agreement at the Leased Premises shall be proof of occupancy of that individual and a violation of this Agreement. I assume that the lease states that only the listed individuals can reside in the unit. Maybe they think that this says that receipt of mail by an unlisted person is a further violation of the lease, I don't think that is clearly enough stated that the courts would agree that receiving mail is itself a violation of the lease. Instead, it seems to be intended to say something about an existing clause – you can't have other people living there. The courts would look at the requirements of the lease, and ask "did you comply"? The question of whether you did a certain thing is a question of fact that has to be resolved in court. However, the revised lease language does not state that all mail must be addressed to Johnny Johnson – it only addresses receipt by a person not on the lease. You are (apparently) on the lease, so you may receive mail there. Nothing in the lease controls how such mail can be addressed. If you receive mail addressed to Tommy Thompson, your defense is that you received the mail, and you are on the lease, so you will not have violated the new clause. | Nothing in the description strikes me as illegal or unlawful, so I am unsure of the grounds your friend would have for legal action. The questions a lawyer would ask (in addition to that) would be likely to include : How does your friend quantify the damage? The law is great for pursuing financial compensation, but does not handle abstract concepts. Has your friend used psychological counselling services, and what was the cost? What additional financial costs has your friend borne? If your friend has written to the University and has expected a response, what is the evidence of diminished trust? (The letter suggests otherwise.) Would a reasonable person (the proverbial "man in the street") be psychologically damaged by the events experienced by your friend? Is there evidence of a pre-existing condition? You've also mentioned yourself as a witness. Did you witness the eviction, or would you be attesting to your friend's state of mind? If the latter, what are your psychological qualifications? In the main Western jurisdictions, the answer to the question "can my friend sue?" is usually "yes", but whether they stood a chance of winning the suit would probably be a better question to ask. Your friend would only be likely to win a case against the University or the Security company if they could demonstrate unlawful or counter-contractual activity by staff, and were able to demonstrate financial damages that had been caused by that activity. | In the US it is generally illegal for you to open somebody else's mailbox. Your best course of action is to contact your neighbor and let them retrieve the package for you. In practice it might depend on your relationship with your neighbor. If you are good friends, they are unlikely to object or report you to the authorities as they'll be willing to trust that you were just retrieving your mis-delivered package. If you don't know your neighbor, or if you are on poor terms with them, they have no reason to trust your motives and they could reasonably think you were stealing from them or invading their privacy. As a tangential footnote: yes, people really can face federal charges for tampering with mailboxes. Recently a former city prosecutor and a former police chief for Honolulu were convicted of attempting to frame a relative on federal charges for stealing a mail box. A mistrial was declared on the mailbox theft charges, and in the process, an extensive web of corruption was revealed involving the former prosecutor and former police chief. | The agent/landlord responsibility is to ensure that the residents have "quiet enjoyment" of the property during the period it is let. As long as your friend has access to the flat he has that. He can ask, but the agent/landlord have no obligation to provide it. Could your friend appoint someone else to go and get their property? There is no reason why he has to do it in person. He should provide this person with a signed letter of authority (just "I, Joseph Bloggs, hereby authorise John Doe to collect my belongings from 123 Cherry Tree Crescent on my behalf", signed and dated) and also send a copy to the agent. Your friend must have a contract with somebody. If he paid a deposit then it should have been kept in a proper deposit protection scheme, and he should have paperwork to that effect. If that wasn't done, then he can sue the person he has the contract with for (in effect) punitive damages in addition to getting his deposit back. You say your friend was "not the lead tenant", so it sounds like one of the tenants was sub-letting, but its not clear; it may be that this "lead tenant" was just acting as a point of contact for stuff like rent collection. Your friend should have some kind of written tenancy agreement; he can sue the person or company named named on that. If the tenancy was a verbal contract then he can sue the person he handed the deposit to. | it would violate law? It would be very dependent of what your jurisdiction is and what the software does. I would expect most software that would be lawful to install at your home would be lawful to install at your company, but there may be exceptions. To put an hyperbolic example, if you work at the CIA and you install some remote access software that allows you to access your workstation from a non-secure PC through non-secure methods, I am pretty sure that would be illegal, even if you had the best of intentions. A recent scenario taken from real life involves some members an organization who are required to use official e-mail servers for FOIA purposes setting up their own private mail servers. Of course, YMMV. can I purchase it for myself, and then use at workplace Even if the software is legal it does not mean that it is ok to use it at the workplace. Most business have rules about what software may be installed in the PCs, who may install it and how to manage it. Your software could introduce security vulnerabilities that your IT team may need to be aware of, or incompatibilities with other software. It may introduce legal liabilities (you install a "home edition" licence in a corporate environment where that licence is invalid). Your company may discipline you if you breaking those guidelines and install software without authorization, even if there is no harm for them for this action. On top of that, if your actions cause some damage to the company, it can sue you to get you to pay for those damages. Before taking any action you should inquiry about your company's IT policy and, if your company does not have one or if the policy is not clear about allowing you to install the software, ask the people in charge (preferably in writting). | It is almost certainly legal for the sitter to keep the money. She was ready to provide the service, and it is not her fault she couldn't (and she may have turned down other opportunities because she had this one). I think your fiance's claim would be against the firm providing the security service (they are the ones that frustrated the contract). I foresee the following problems: What are her losses? She was prepared to pay $315 (which she has paid), and the dog has been looked after. Where is the loss? (She may be able to argue that it was worth $315 to her, not to have to owe her mother a favour. I don't know if that will fly.) The contract with the security firm almost certainly waives liability for this sort of thing. She would have to convince the court that the contract terms were unreasonable/unconscionable (or whatever the term is in the local jurisdiction). There are two obvious options here: a) see if there is legal cover on her household insurance (or her pet insurance); b) forget it (it's only $175 all told). |
Can the police make it a crime to put your hands in your pockets? It is in the news that the police handcuffed a woman claiming she "reached" towards her pockets after being told not to. Looking at the government and Metropolitan Police web pages there is no mention of any requirement to not reach towards ones pockets. If one is stopped and searched is one required to follow orders, such as not "reaching towards" ones pockets? Is there any specific legislation that gives the police the right to use force in such a situation? Report of what happened from the media: Rocha, who was a friend of Dom Phillips, the British journalist murdered in the Amazon in June with Indigenous expert Bruno Pereira, said she was approached by police shortly after reaching the street on which Bolsonaro was staying. “They came straight at me … [One male officer] grabbed me by the arm and just started taking me to this corner and while he was talking to me he was holding both my wrists really strong. He was hurting my wrists. I was asking him: ‘Why are you holding me? Let me go.’” “He kept saying: ‘We’ve received some intel that someone in a red T-shirt was going to commit criminal damage … so I’m going to search you and you are detained,” added Rocha, who was wearing a red T-shirt at the time. Soon after the officer “got the handcuffs out and turned me around and handcuffed me with my hands behind my back”. “I was in a state of shock … we knew the police were on high alert because of the funeral and all the state leaders that were here but we never expected anything like that.” Footage of the incident seen by the Guardian shows a male officer searching Rocha’s pockets before handcuffing her and saying: “I told you, ‘Don’t go reaching towards your pockets again – and you reached’ … It’s not my fault you chose not to listen.” | Only Parliament has the power to define crimes in law (well, also in the UK there are common law crimes, where ages ago the courts defined punishable wrongs). The police have the power to enforce existing law, but not the power to create new crimes. Part of police power is the power to use force to enforce laws. If a person is trying to kill another (which is a crime), the police can use force to stop the person from committing this crime. Police power can be statutorily encoded (Parliament passes a law saying what police can and cannot do), or it could be part of common law. As for laws regulating a suspect, there may be a specific statutory prohibition – "you may not reach into your pocket" – or there is a common law inference to be made, that if the police have the power to order you to not reach into your pocket you may be forced to comply. The subtle distinction here is that if it is a crime to reach into your pocket when told not to, you can be prosecuted and imprisoned. If there is no such crime, you just have the consequence that you can be roughed up to some extent for disobeying the police order. One act of Parliament is the Offences against the Person Act 1861 §38 which says Whosoever . . . shall assault any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, NB "assault" does not require physical contact: creating apprehension suffices. Another law is the Police Act 1996 §89 which says Any person who resists or wilfully obstructs a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale, or to both These laws do not exhaustively list all of the things that are forbidden (e.g. they do not say "may not bite. nor scratch, nor kick..."), instead, the prohibitions fall under the general rubric of assault and resisting. Under the circumstances, it is possible that the person could be criminally prosecuted, but even in lieu of a prosecution, it is strongly probable that the police use of force in this instance was lawful. One would have to await the outcome of investigations and litigation to know for sure. | The general rule is that force may be legally used in defense of self. I will draw on RCW 9A.16.020, other jurisdictions say essentially the same thing. The relevant parts are: (3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary Curated internet videos don't tell the whole story, but for the sake of argument I will assume that Mr X chucked a bottle at Tyson, and Tyson proceeded to punish him with his fists. Both parties thus committed a crime. The new report indicates that there will be no prosecutions "based on 'the circumstances surrounding the confrontation'", which I take to include all of the available evidence. Prosecution for a crime is discretionary. There is no requirement at a prosecutor file charges in every instance where (in the prosecutor's professional opinion) a conviction can be secured. The abstract law is clear: both parties committed a crime. The abstract law is also clear that a prosecutor has discretion to decide whether to prosecute. | First off, you cannot booby trap your property, period. It is both illegal and tortious. But, as you noted, there are already questions/answers that deal with this issue. Sure enough, if the police get a no-knock search warrant, that in and of itself is the Court order allowing entry by any means necessary. When the officers, there by right of law, breach the outer perimeter and stop at the warnings, they will not be seeking any other court orders to have you allow them "safe entry". Their warrant gives them all the right they need, as probable cause of crime and violent intent or intent to destroy evidence was already presented to a judge. If, in real life, you actually put up signage or state explicitly that they're being forewarned that you intend to harm, trap, maim, or otherwise make it unsafe to enter; or that doing so will result in an attempt to destroy evidence, that is something they have already assumed (hence the seeking and granting of the no-knock vs. a regular search warrant). However, the signs in and of themselves are not protected speech, but rather overt threats, and that would put you in a very precarious position indeed. If the police get a "no knock" warrant (the most invasive, difficult to get warrants, whereby there is a grave risk of destruction of evidence or injury to persons), the police will ensure they have safe passage – they've come prepared for dangerous entry long before your signs, but once they see them, you could rest assured they will take them as they are intended: as a direct threat to their safety, and they will deploy a SWAT or other heavily armed entry team (who is usually there anyway for these dangerous entries). You could expect things like smoke/out canister and teargas, flash bangs, and heavily armed and well armored officers attempting to force you from your dwelling. Presumably, if you need to disarm traps to escape the situation, they can enter. Assuming you're home when they invade with chemical weapons, whether you come out or not, they will force you to disarm whatever booby trapping you may have in place that may destroy evidence, likely walking you in as their human shield in the event you're lying about any dangerous ones. That is probably your best case scenario. They may just decide to throw you through the perimeter once they get their hands on you, just to see what happens! If you don't exit and are home or if you are lucky enough to be out, the bomb squad, ATF, and SWAT will converge on your property in less than typical means. Because from your warning they can assume some incendiary or explosive device exists, bringing it into the jurisdiction of other agencies. If they cannot disarm the trap, they would send a robot in first to set it off, or cut through your roof, or knock down a wall – whatever it takes to get in without using a typical means of ingress/egress, so as not to chance your trap. Regardless, you can rest assured that they will get in, and you will pay for the trap you set for law enforcement. Further, to whatever charges you'd have been faced with from evidence flowing from the original warrant will now be added additional charges like attempted murder of a peace officer; if you have any roommates or known associates: conspiracy to do those things; attempted destruction of evidence, criminal interference with a police investigation ... all at a minimum. If anyone is actually harmed, your signage offers you no shield from criminal or tort liability, and you will be lucky to live through the experience once they get their hands on you. Police tend to not like being the targets of intentional maiming, dismemberment or death. You have to understand that, according to this hypothetical, you are intentionally trying to harm law enforcement, or destroy evidence of your dangerous criminal activity. These are not invaders, or intruders according to the law; they are the people whose job it is to enforce the laws, collect the evidence (if you weren't getting arrested pursuant to the fruits of the warrant, you certainly would be at that point). The signs themselves would make excellent exhibits in the coming case of State v. you. BTW: The only reason they have left John Joe Gray alone is that he knows the Henderson County Sheriff Ronny Brownlow, who has been told that the ATF, FBI, and State SWAT, would all be happy to enter and get or kill Mr. Gray if need be. Since the Sheriff never filed any federal charges, and has determined that he doesn't want to breach (and it's in his jurisdiction to determine this), the Sheriff, aware that Gray's entire family is holed up in the "compound", decided it's not worth going in. It's as well known as it is anomalous. When the police want in, and have the right to get in, they will get in. That Sheriff just decided it's not worthwhile. | It's really the other way around: film crews can legally travel with the police. This is very similar or identical to what you saw on YouTube. From http://blogs.findlaw.com/celebrity_justice/2014/04/cops-and-suspects-rights-whatcha-gonna-do-when-they-record-you.html (dated 4/18/2014) "Cops" will soon begin a 10-week filming stretch in San Jose, California, for the first time in the show's 26-year history, reports the San Jose Mercury News. The "Cops" crew will hit the streets alongside San Jose's finest to provide a window into what these men and women do in America's 10th largest city. More from that link: When the officers on "Cops" arrest most of their suspects, the circumstances leading up to the arrest are out in public. However, in order to avoid unlawfully appropriating the images of those caught on "Cops'" cameras, the crew asks the arrestees to sign a release form. The "news crew" are producers who have permission from the police to follow along. As above, they ask each suspect to sign a release after the arrest. These arrests take place in public, on public streets and right-aways, where filming of the public is legal. If the arrestee does not sign the release, their face is blurred in the resulting footage that is made public. This does not mean the producers or videographers are automatically allowed into a private residence. They need a release to go onto private property (unlike the police involved in an investigation) and as such, the resident can actually forbid the cameramen from entering the house even while the police have entered. The footage from the body cams of the police are a different story; they are public employees of the local government and are bound by the laws of the locality. A search of Google News shows that in San Fransisco, the issues of the use of body cams by police and public access to that video is an ongoing issue; some laws have been finalized, others are bound to change. Around the US, some localities at this point in time allow public access to the footage from police cams; others only after department or local governmental review; still others only on in as need basis for prosecutions. ...the cop is the only one in this situation who can command the filmers to stop. Even if the "news crew" is not a news crew and just someone from the general public, it is generally legal for the public to film the police, as long as they are not causing issues with the police and stay out of the way (re: all of the recent news regarding police shootings and the footage available on YouTube and in news sources). There is case law pertaining to that, but IANAL, so I'll let someone else outline that. But https://photographyisnotacrime.com/ is a good resource. In the US, you pretty much have no expectation of privacy while in public. | The circuits all over the place on this one but in short, no, police are not obliged to apprehend a suspect at the earliest opportunity. It is within the discretion of the police to decide whether delaying the arrest of the suspect will help ensnare co-conspirators, as exemplified by this case, will give the police greater understanding of the nature of the criminal enterprise, or merely will allow the suspect enough "rope to hang himself." U.S. V. Garcia 79 F.3d 74 (7th Cir. 1996) See also Hoffa v. United States 385 U.S. 293 (1966) A suspect has no constitutional right to be arrested when the police have probable cause. The police are not required to guess, at their peril, the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction. | In general, you do not have civil recourse against the government for (lawful) legal process that you are the victim of. "Counterclaim" would only be applicable when A sues B, and B makes a counterclaim against A – the police don't sue you, they arrest you, and the prosecutor prosecutes you (or decides not to). If the police beat you up, you could sue them for violating your rights, under what is known as Section 1983. Given the scenario you describe, this comes closest to involving false arrest, meaning that there was no probable cause for arrest. Otherwise, the police have immunity for their actions. But if there is a legal arrest warrant, there is probable cause (existence of probable cause is the standard for issuing an arrest warrant), so no claim against the police will succeed. I am leaving out the anomalous concept of an unlawful arrest warrant, where a judge issued an arrest warrant but there is in fact no probable cause. Such a case would be covered by Section 1983, where either the judge or the swearing officer (or both) violated your rights. | If I were a DA (District Attorney) looking out "stamp out" statutory rape, I would make the rounds of the hospitals, identify women who gave birth, or were impregnated when underaged, and go from there. But few, if any DAs, do this. No, you wouldn't. First, you have neither the time nor the budget to do this. Second hospitals are not public property, you would need a warrant which the court won't give you because you don't have probable cause to believe a crime has or is being committed. As a DA, I would of course, follow up on any complaints lodged by the victim, or even by her/his parents. And maybe I would prosecute a case where people were "caught in the act, or there were nude pictures, etc. May even an especially egregious PDA (public display of affection). No, you wouldn't. You would follow up on complaints to the extent that you have the time, budget and manpower to do so and you would prosecute cases where you believe that you have a reasonable prospect of getting a conviction and where prosecution is, in your opinion, in the public interest. In the real world, that means where the police hand you a brief of evidence that is a lay-down misere and (for statutory rape) where there is a real power imbalance between the perpetrator and the victim - giving 2 willing 15 year old kids the label of 'sex offender' for life is probably not in the public interest. But suppose there were no complaints or smoking guns. Could someone investigate based on something like a teenager "holding hands" with someone much older? To make the question objective, what has historically caused DAs to prosecute people outside of the above parameters? With some exceptions, it is not the role of the DA to initiate or conduct investigations of criminal actions - that is the role of law enforcement officers, usually for this particular crime, police officers. Notwithstanding, the general rule in western, liberal democracies (which the United States, with a certain generosity of spirit, can still be considered) is that citizens are allowed to get on with their lives without day-to-day interference from the state. That is, law enforcement officers do not 'go fishing' for crimes, they investigate crimes that they have a probable cause to believe have actually happened, either because they themselves saw it happen or someone has reported it to them as having happened. The term for having a law enforcement officer following you around waiting for you to break the law is 'harassment' and may itself be illegal. A law enforcement officer can initiate an investigation based on anything but as no law enforcement agency has unlimited resources, they tend to follow only those investigations that might lead somewhere. For example, it has been known for parents to hold the hands of their children and even to publicly display affection towards them and parents are often "much older" then their children - this would not generally be grounds for initiating a statutory rape investigation. | No, but... It is not an offense to photograph people, especially if they are just caught at the edge or out of the center of the photography. However you do not have a right to photograph people either. In fact, under German law, you have to gain the consent of people that are the centerpiece of a photo for publication, or make the photo for a number of enumerated reasons. Among such is news reporting or documenting an ongoing crime - such material is made in the public interest. If you make a photo without consent or qualified reason, possession of the photo in general is no problem but you have no right to publish the photo. To prevent such publication, the photographed person may demand deletion or destruction of the photo - however, following the demand is not explicitly required. Such a demand however is equivalent to an explicit demand to not publish the picture. As such, it gets really tricky for the photographer. Publication without a release (or a no-release statement) or one of the few excusing reasons is a punishable offense, which can land you in prison for up to one year. This stems from Art. 2 GG, §22, §23 and §33 Kunsturhebergesetz. Hindering rescue services with your camera and creating photos of injured and vulnerable people is illegal under the same reasoning. Getting into the way of the police can constitute obstruction of emergency helpers atop of that. More on that specific part of German law can be learned in this question. Do note that such photography can also be a crime under §201a StGB, especially if your photography shows someone as vulnerable. Another possibility for the approaching police might have been, that the policeman was interested to find out if you might have photographed or filmed the incident that led to the arrest. In that case, he might have requested a copy for evidentiary reasons. |
Is it illegal to sell duck eggs in Austria? When I lived in Toronto I would often buy fresh duck and turkey eggs from the city's markets. Yesterday I tried doing the same thing at a market in Vienna and was told by the stall operator that it's illegal to sell duck (and turkey) eggs. She said that she's permitted by law to sell chicken and quail eggs, but that all other fresh eggs can be bought only at poultry farms. I therefore have the following questions: Which law (if any) makes it illegal for shops and markets in Austria to sell turkey and duck eggs? If those who enacted this law provided a clear rationale for it—for example, in its title ("An Act to Prevent the Spread of Duck-Borne Encephalitis from Unsanitary Egg-handling Procedures at City Market Stalls") or in its preamble—then what is that stated rationale? | Eggs in the EU are regulated under Verordnung (EG) 853/2004. Especially 5.1 is or relevancy : 5.1. "Eggs" means eggs in shell - other than broken, incubated or cooked eggs - that are produced by farmed birds and are fit for direct human consumption or for the preparation of egg products. However, Austria had a specific regulation on duck eggs, that incorporated special rules until 2006: Verordnung des Bundesministeriums für soziale Verwaltung vom 7. Mai 1947, betreffend den Verkehr mit Enteneiern StF: BGBl. Nr. 118/1947 Präambel/Promulgationsklausel Auf Grund des § 6 des Gesetzes vom 16. Jänner 1896, R. G. Bl. Nr. 89 ex 1897, betreffend den Verkehr mit Lebensmitteln und einigen Gebrauchsgegenständen, wird verordnet: § 1. Enteneier dürfen nur nach Maßgabe der folgenden Beschränkungen vorrätig gehalten, feilgehalten oder sonst in den Verkehr gebracht werden: a) Enteneier müssen die mit deutlich lesbarer, in unverwischbarer, kochechter, nicht gesundheitsschädlicher Farbe angebrachte Aufschrift Entenei! Kochen! tragen. Die Kennzeichnung muß in Umrandung mit lateinischen Buchstaben von mindestens 3 mm Höhe aufgedruckt sein; b) An den Behältnissen, in denen Enteneier feilgehalten werden, muß an einer gut sichtbaren Stelle auf einem mindestens 20 cm langen und 15 cm breiten Schilde die deutlich lesbare Aufschrift Enteneier!Vor dem Gebrauch mindestens 8 Minuten kochen oder in Backofenhitze durchbacken! angebracht sein; c) In Geschäftsräumen und Verkaufsständen, in denen Enteneier feilgehalten werden, ist an gut sichtbarer Stelle in der Nähe der feilgehaltenen Enteneier ein mindestens 24 x 30 cm großes Schild anzubringen, das die deutlich lesbare Aufschrift trägt: Enteneier dürfen zur Verhütung von Gesundheitsschädigungen nicht roh oder weichgekocht verzehrt oder zur Herstellung von Puddings, Mayonnaise, Eierspeisen, Spiegeleiern, Pallatschinken, Omeletten usw. verwendet werden. Sie müssen vor dem Genuß mindestens 8 Minuten gekocht oder beim Kuchenbacken in Backofenhitze völlig durchgebacken werden. The text prescribes a very precise marking that has to be mounted on the eggs and close to them. Without such a marking, it was illegal to sell eggs from ducks. There is no more specific reasoning given in the Päamble or main text of this 4-section law, however, the prescribed text says that there is a health reason and to prevent health damage, they demand to cook the eggs for at least 8 minutes, and their products need to be thoroughly cooked as well. It's not permitted to create raw egg products from them, such as Mayonaise. The Präamble at best indicates, that a law regulating (among others) duck eggs has been enacted first in 1896, and that this law was its successor. It itself was succeeded by the Lebensmittelsicherheits- und Verbraucherschutzgesetz - LMSVG, however I couldn't spy if or where a similar regulation was in that law but that it replaces the old regulation. Local regulations? There might be local regulations for the market that also might cut into it. Usually, market stalls need a market license, which is given for specific goods. For example, my local market has a trader that has a permit for "fruit, vegetables, and salads", but they do not have a permit for any meat products, eggs, or baked goods. Another similar seller has one that is larger by the entry "chicken eggs". It's illegal for the first to have any chicken eggs on display or on offer, but not for the second. However, it is often very hard to get those local regulations or licensing schemes anywhere else but at the local market inspector (Marktmeister), their office or town hall. By using the market regulations, they can enact a local de-facto ban on such products on the market. However, that's mostly smaller local markets. Luckikly, Vienna has its own market office, and can be reached at +43 1 4000-8090, their regulations can be found here. It bans cage-farmed eggs in §5, but does not have specific regulations for Duck eggs. However, in applying for a market stall, the form requires you to describe what types of goods you want to sell, and not listing duck eggs and then selling them could be a violation of the market license you got, depending on how strict the market inspector is. | Mice are not Wildlife Any animal that can be hunted with regulations is listed in the laws about hunting. But the very hunting regulation in Oregon also has an exclusion list what is not regulated under it, because they are not wildlife. Some Rats and Mice species are called out: Pursuant to the definition of “wildlife,” the following species are not subject to these rules because they are not “wild”: SPECIES — SCIENTIFIC NAME (16) Mouse (House mouse) — Mus musculus. (18) Rat — Rattus norvegicus and R. rattus. As they are not Wildlife no license is required. They are not "Wild Mammels" either, meaning the whole rulebook of the Department of Fish and Wildlife does not apply to these species - and so no hunting license can be required. Several types of Muridae are also listed as "Noncontrolled Species" in the chappter on Importation, Possession, Confinement, Transportation and Sale of Nonnative Wildlife - pretty much the pet statutes so you can buy and trade them normally, but that is not about hunting. There are rules for Pests... There are specific Pest Control Laws in Oregon. For example Chapter 527 on Forest and forest products is targeting mostly "native and exotic pests", but defines a pest as an insect for this chapter: (8) “Pest” means any forest insect or disease which causes or may cause damage that prevents or interferes with management objectives in a specific area. In chapter 603/division 52 on pest and Disease control, everything that is a pest is either a bacteria, fungi, or insect. Rodents are predatory animal Rule 837-012-0310 allows very specific pest control fireworks, which (via the definitions) points to ORS 480.124, which again points to ORS 610.002, which reads: As used in this chapter, “predatory animal” or “predatory animals” includes feral swine as defined by State Department of Agriculture rule, coyotes, rabbits, rodents and birds that are or may be destructive to agricultural crops, products and activities, but excluding game birds and other birds determined by the State Fish and Wildlife Commission to be in need of protection. [1959 c.240 §2; 1971 c.658 §29; 1977 c.136 §4; subsection (2) of 610.002 (“Predatory animals” defined) renumbered 610.003 (Bobcat and red fox control permitted); 1979 c.399 §2; 2001 c.125 §2] So Mice and Rats are under Chapter 610, which regulates that the Fish and Wildlife Service has to put up a fund to allow them to take measures for control of their numbers. Killing Rodents is often Mandatory There are 58 Oregon laws and regulations that mention the word Rodent. Many of them are about sanitation and were to not allow rodents, as well as who is allowed to regulate what to do against rodents. Child Welfare Services is allowed to make rules that demand rodent control. and indeed, Child care centers need to follow this rule (3) Insect and Rodent Control: (a) The center shall be in such condition as to prevent the infestation of rodents and insects. Rule 415-050-0085 mandates (like many similar ones) that certain medical centers need to get rid of rodents: (6) All measures necessary to control rodents must be taken; Rule 603-032-0140 demands that grain storage is rodent free: (1) Storage facilities shall be of sound construction and shall be maintained in such condition as shall adequately protect at all times stored commodities from the elements, rodents, birds, and injurious vermin. Then there's Rule 333-030-0070 from the section on camps, which is all about rodent control: (1) The grounds, buildings and structures [of a camp] used or intended for human use and habitation must be kept clean and maintained to prevent access, harborage and infestation by insects, rodents and vermin. Likewise, Recreation Parks, Adult Foster Homes, Mental Health institutions and others need to be rodent free. These does not just allow eradicating any rodent, it demands it | In general, the law is not based on the species, it is based on the use of the animal. This gives rise to the difference between food rabbits and pet rabbits, and so on. The definition or applicable offenses are spelled out in each state's criminal code. In Washington, Chapter 9.08 RCW covers "Crimes relating to animals", and 16.52 RCW covers "prevention of cruelty to animals". 9.08.065 defines a "pet animal" as a tamed or domesticated animal legally retained by a person and kept as a companion. "Pet animal" does not include livestock raised for commercial purposes and then makes it a crime to steal a pet animal (this is in addition to regular laws against theft that applies to any property). So if you steal someone's pet goat, that's two or more crimes, but if you steal a meat goat, that's one less crime. The main anti-cruelty laws are in 16.52. Distinctions may be made between between domestic animals and generic animals, or between livestock and others, or food animals and others, so it just depends on the action being forbidden. RCW 16.52.205 says you commit first degree animal cruelty if you intentionally (a) inflicts substantial pain on, (b) causes physical injury to, or (c) kills an animal by a means causing undue suffering or while manifesting an extreme indifference to life, or forces a minor to inflict unnecessary pain, injury, or death on an animal. There is no other provision allowing you to torture any animal, not even a backyard rat. It is generally illegal to poison animals, but RCW 16.52.190 allows euthanizing by poison, or pest-eradication by poison (insects are animals too). Thus it is legal to poison a pest rat but illegal to poison a pet rat. There is also a general exception, in 16.52.180, that No part of this chapter shall be deemed to interfere with any of the laws of this state known as the "game laws," nor be deemed to interfere with the right to destroy any venomous reptile or any known as dangerous to life, limb or property, or to interfere with the right to kill animals to be used for food or with any properly conducted scientific experiments or investigations, which experiments or investigations shall be performed only under the authority of the faculty of some regularly incorporated college or university of the state of Washington or a research facility registered with the United States department of agriculture and regulated by 7 U.S.C. Sec. 2131 et seq. This allows you to kill chickens for food, and might be construed as allowing you to feed rats to your snake (the law does not say "used as food for humans"). The definition of 1st degree cruelty also has an exception that "Nothing in this section may be considered to prohibit accepted animal husbandry practices" (however, keeping an animal as a pet or educational object does not constitute "animal husbandry" in the ordinary meaning of words). There is no clear statutory division in Washington between feeding rats to reptiles, and feeding dogs to reptiles, and if you were to feed kittens to your monitor lizard, you might well get arrested. Idaho animal cruelty law also forbids cruelty to any animal: Every person who is cruel to any animal, or who causes or procures any animal to be cruelly treated, or who, having the charge or custody of any animal either as owner or otherwise, subjects any animal to cruelty shall, upon conviction, be punished in accordance with section 25-3520A, Idaho Code. and cruel(ty) is (a) The intentional and malicious infliction of pain, physical suffering, injury or death upon an animal; (b) To maliciously kill, maim, wound, torment, deprive of necessary sustenance, drink or shelter, cruelly beat, mutilate or cruelly kill an animal; (c) To subject an animal to needless suffering or inflict unnecessary cruelty; (d) To knowingly abandon an animal; (e) To negligently confine an animal in unsanitary conditions or to negligently house an animal in inadequate facilities; to negligently fail to provide sustenance, water or shelter to an animal. Again, feeding a rat to a snake is not intrinsically malicious, nor is feeding a puppy to a turtle intrinsically malicious. A distinction can be made under the related law on torturing a companion animal (an extension of the original anti-cruelty law): A person is guilty of the offense of torturing a companion animal if he tortures a companion animal as defined in this chapter. where "companion animal" is defined as those animals solely kept as pets and not used as production animals, as defined in this section, including, but not limited to, domestic dogs, domestic cats, rabbits, companion birds, and other animals. This gives a basis for distinguishing feeder rats from feeder puppies. Torture is then defined as the intentional, knowing and willful infliction of unjustifiable and extreme or prolonged pain, mutilation or maiming done for the purpose of causing suffering. "Torture" shall not mean or include acts of omission or of neglect nor acts committed unintentionally or by accident. "Torture" also shall not mean or include normal or legal practices as provided in section 25-3514, Idaho Code. And thus it is not clear that feeding an animal to a turtle counts, since the purpose is to feed the turtle, not to cause suffering. The exceptions spelled out in 25-3514 might be applicable, but there are not clearly applicable. One exception is "The humane slaughter of any animal normally and commonly raised as food, for production of fiber or equines" – perhaps using an animal as feed for another animal can be "humane slaughter", perhaps rats are "normally and commonly" raised as food, unlike dogs. It is not currently against federal law to slaughter cats and dogs for meat, but there is a bill in Congress which would make it so. The bill has 245 sponsors in the House, so it is likely to pass. | It is illegal to sell alcohol to a minor in Washington (RCW 66.44.270). The seller can get into various kinds of trouble, including losing their license, under liquor board regulations. However, as long as the establishment follows the rules for acceptable ID, they escape liability if in fact they sell alcohol to a minor: the license holder is legally allowed to accept an identification of the specific type. That is the sense in which this is required by law: the customer must have actually presented the identification, in order for the establishment to escape liability (RCW 66.20.210). Looking old enough is not the issue. It is legal to sell alcohol to a person who is over 21, and the law does not require presentation of identification as a condition for a sale. However, under RCW 66.20.180 a person is require to produce ID "upon request of any licensee, peace officer, or enforcement officer of the board". The legal risk attached to sales in an age-marginal situation is very high, and actual presentation of ID is required to escape liability by the establishment, so in that sense, it is "required by law". All requests to produce ID for liquor sales (at least in Washington, and leaving out deliveries which are governed by other laws) are driven by company policy. Typical policies are quite rational, being designed to protect the company's interest in not getting into a heap of trouble for an under-age sale. There is no law saying when you must ask, or when you are protected if you don't ask. Usually, store policy is to use "common sense" so that 90 year olds are not required to produce ID (they may be asked, jokingly). Non-compliance with RCW 66.20.180 carries no legal penalty, that is, there is nothing in the statute that says "if the customer doesn't...". The most obvious would be that the seller would refuse to sell, which the seller can arbitrarily do anyhow. There is no statutory penalty imposed on a licensee if they request ID of a person over 21 and the person fails / refuses to produce the ID. Obviously, the licensee cannot be punished if a customer fails to provide ID (and leaves), especially if they lost it. But the law "requires" them to provide an ID, with ne except "unless you leave / put the bottle back". Somewhat less obviously, if the legislature wants to, it can enact a provision that once a licensee requests ID, they are forbidden to sell alcohol to that customer until ID is provided. But there currently is no such law. "The law" also included regulations, such as WAC 314-17-105. This regulation is a chart, and the relevant entry is PERMIT: Failure to produce permit or identification upon request. See RCW 66.20.310 and 66.20.180. for which the 1st offense consequence is "5-day permit suspension OR $100 monetary option". This is a problematic regulation (potential lawsuit fodder), since it can be interpreted in a number of ways. The question is, of whom is the permit or identification predicated? Only the licensee has a permit, but customers and employees can both have identification. If we interpret this regulation as meaning "Failure by licensee or customer", then we arrive at the absurd conclusion that if a customer fails to produce ID on request, the establishment is fined. It is important to note that this regulation is under a chapter about server training, thus the regulation can only reasonably be interpreted as being about licensee providing identification. | I know that in many countries, including the US, the UK, and most, perhaps all, of Europe, it is common for houses to be sold while still under construction, so no such legal prohibition exists (or at least is enforced) in any of those countries. I have never heard of any country which has a general law against such a practice, but I cannot be sure for all countri8es in the world. There are other was to "prevent contractor delays and/or construction malformations and even constructions deformations". Many counties have building codes, which make improper building techniques unlawful. In some countries failure to adhere to proper professional standards in such matters is unlawful, and it is usual for the purchase of an unfinished building to involve a contract, in which performance standards and dates are spelled out. Failure to adhere to such requirements would give the purchaser grounds for a lawsuit for damages. | The rink is private property; they can let who they like in, and they can refuse entry to who they like. They can ban you for any or no reason. (The only exception to this is that they can't refuse entry because of some protected characteristic like race or gender.) The owner doesn't have to personally issue a ban; any person they authorize can do so. (Consider the case where the owner is something like the Disney Corporation; bans aren't going to be issued by the board of Disney - they will be delegated to the local manager, and probably the shift leader). You can still show up of course, but you are quite likely to be thrown out. | Prompted by this recent similar question, I've revisited this question and deleted my original answer as it was completely off the mark. This is its replacement. It is illegal, and it turns out to be an international standard in the Berne Convention. Article 16 in full: (1) Infringing copies of a work shall be liable to seizure in any country of the Union where the work enjoys legal protection. (2) The provisions of the preceding paragraph shall also apply to reproductions coming from a country where the work is not protected, or has ceased to be protected. (3) The seizure shall take place in accordance with the legislation of each country. Your scenario falls squarely within point (2) and the imported George Orwell book is to be treated as an infringing copy within the UK. The implementing UK legislation for (2) can be found in Section 27(3) of the Copyright, Designs and Patents Act 1988. | It may be discrimination; not all discrimination is illegal. Details vary by jurisdiction, for example discrimination on the following bases is illegal in Australia: race colour sex sexual preference age physical or mental disability marital status family or carer’s responsibilities pregnancy religion political opinion national extraction social origin A medical condition like an allergy is not necessarily a physical disability. The school is arguably fulfilling its obligations under WHS legislation by banning nut products if that is what a risk assessment indicates. It may also be necessary to ban milk products if that is required for your daughter's safety. If (and I do not know) nuts pose a greater risk than milk then banning the former and not the latter may be perfectly justified. Ask to see the risk assessment. |
How can one arrest a police officer/constable? According to this video at about 10:15 you can only arrest a cop for an indictable offence. It claims that under the criminal justice and courts act 2015, a police officer commits an offence if he or she exercises the powers and privileges of a constable improperly and further knows or ought to know that the exercise is improper, for which he/she could be imprisoned up to 14 years. How can such provisions be given effect? | The segment of the video I watched is wrong or misleading in several ways. The speaker apparently claimed to be performing a "citizen's arrest" on a police officer on the basis of s.5 of the Public Order Act 1986. The question above also talks about s.26 of the Criminal Justice and Courts Act 2013, which deals with an offence of improperly exercising the powers of a constable. Somebody who is not a police officer is allowed to arrest somebody else without a warrant only under tightly defined circumstances. These are given in s.24A of the Police and Criminal Evidence Act 1984 (inserted by the Serious Organised Crime and Police Act 2005). The elements include that the offence be indictable, which does not mean as claimed in the video that "you can get sent to prison for it", but refers to the mode of trial. Some summary offences are imprisonable. Since the offence under s.5 of the 1986 Act is a summary one, rather than indictable, we fall at the first hurdle. A further qualifiction is that this power of arrest can only be exercised if the person believes it would be impractical for a constable to do it instead, and that the arrest is necessary to stop the arrestee from escaping, hurting themselves or someone else, or damaging property. In the video, the police officer does not look like he is doing any of those things, and there is another officer right next to him. Thus it would be hard to argue that there are reasonable grounds for arresting the officer in this way. Also, while members of the public may object to the conduct of police officers, that does not always amount to an offence under s.26 of the 2013 Act. The offence there is about corruption, exercising the powers of a constable for personal benefit. That personal element does not seem to be shown in the video. There are some other mistakes in the part I watched. A lawful arrest cannot be effected just by using the words "I am arresting you". The arrestor has to take or imply some directive action as well, or else there is no arrest at all: just two people continuing to stand awkwardly. This also goes to the point about needing to stop the arrestee from causing injury (etc.) - if you aren't actually taking steps to restrain them then you can't say you're preventing the harm. The point of the provision is to take the fact of an arrest (I am stopping you from getting away) and make it a legal arrest; it can't conjure up an arrest where none exists. In a citizen's arrest there is no need to give a warning about "anything you say may be used against you" or whatever. This is applicable to the police when they are questioning suspects, which is not what is happening here. Indeed, while the police can arrest somebody without warrant because they want to investigate whether they've committed a crime, a regular person can't. Although there is a statutory requirement to tell somebody why they've been arrested, coming from ECHR as well as domestic common-law principles, the police are not expected to cite the law with precision. It's OK to say "I'm arresting you for selling heroin" rather than "I am arresting you because I have reasonable grounds to suspect you of supplying a controlled substance to another without lawful authorisation, contrary to section 7 of the Misuse of Drugs Act 1971". While there are more rules that kick in during pre-charge detention or questioning, the law recognizes that the operational circumstances of an arrest make a briefer explanation more appropriate. Indeed, more formal language would defeat the point of the rule, which is that the arrestee should know what's going on. "You can only arrest a cop for an indictable offence" is not quite right. You (a non-constable) can only lawfully arrest anyone for such an offence, and if the other conditions are met. A constable can be arrested for any kind of offence: there's no special immunity for summary offences. As to the general question of "How can one arrest a police officer?", the usual way is to become a police officer yourself. Almost all arrests, especially those involving police misconduct, are done by the police. For corruption it is likely that an arrest would be made after a long investigation and after the issue of a warrant, rather than on the spur of the moment. As a normal person, wilfully obstructing a police officer in the execution of his duty is an offence (Police Act 1996, s.89), and affecting an arrest may amount to assault on the officer. That does not make it impossible to arrest an officer in this way, just fraught with future difficulty. | "Is there really any law that makes it illegal to own copies of a publication?" I couldn't find exact confirmation of which law Rahman was prosecuted under, but an article from 2012 describes it as "possessing an article for a terrorist purpose". A BBC article from 2007 uses the same phrase, with regard to "Section 57 of the Terrorism Act", which appears to refer to the Terrorism Act 2000: 57 Possession for terrorist purposes. (1)A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism. (2)It is a defence for a person charged with an offence under this section to prove that his possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism. (3)In proceedings for an offence under this section, if it is proved that an article— (a)was on any premises at the same time as the accused, or (b)was on premises of which the accused was the occupier or which he habitually used otherwise than as a member of the public, the court may assume that the accused possessed the article, unless he proves that he did not know of its presence on the premises or that he had no control over it. (4)A person guilty of an offence under this section shall be liable— (a)on conviction on indictment, to imprisonment for a term not exceeding 15 years,* to a fine or to both, or (b)on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both. *Interestingly, the maximum term of imprisonment appears to have originally been 10 years, but was increased in 2006. That law's not specific to publications, but in an attempt to answer your question more fully there does seem to be at least one law that "makes it illegal to own copies of a publication": the Criminal Justice and Immigration Act 2008, for example, renders possession of 'extreme pornography' illegal, and the definitions do not require (to reference your footnote) that the materials "imply an illegal act took place". Rather, the materials are illegal because (to quote a government consultation, via the Wikipedia page linked above) such material may encourage or reinforce interest in violent and aberrant sexual activity to the detriment of society as a whole That may or may not bother you from a freedom of speech point of view, but it leads me nicely onto a discussion of the underlying ethics/morality/rights debate that you impled in your question: "We punish thoughtcrime, these days?" As far as I understand, Rahman was in physical possession of the magazine. So no – not "thoughtcrime". Merely thinking about the magazine – or believing the views expressed in its contents – would not, of itself, be illegal. Indeed, as the article points out in its description of main case under discussion (i.e. the "Three Musketeers" case, not Rahman's prior conviction), the prosecution described as the defendants’ “hateful beliefs” – but the judge, Mr Justice Globe, told them they could not convict based on “mindset evidence” alone. However, like hate speech (speech, not thought), or conspiracy to commit a crime (which is what the men in the Three Musketeers case were being charged with), saying (or writing) certain things is, quite reasonably, illegal, if the intent of those words is incitement to commit a crime. Restrictions on free speech exist everywhere, and any (political) debate around it generally centres less on an absolute right to free speech, and more on where the line should be drawn. Even in the US – which tends to draw the line at the permissive end of the spectrum – speech intended solely to cause damage is not immune from reproach. The classic example is "[falsely] shouting fire in a crowded theater": The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger Similarly, the publication of a magazine, the sole purpose of which is to (inspire or facilitate) damage, can be illegal. It would then seem reasonable for supplying that magazine to others to be illegal. Possession with a clear intent to supply (like with drugs) would also, reasonably, be illegal. And if drug possession, with no intent to supply, can be illegal, then why not possession of illegal material, even if there's no intent to supply? I make no attempt here to justify (nor even to outline fully) the exact details of English law when it comes to these matters; however, there's an important distinction between freedom of speech (with regard to which nearly everyone accepts some restriction or regulation) and freedom of thought or conscience. To the best of my knowledge, there's no law (in Britain) that restricts either of those. | In the United States who has the authority and what is the procedure to determine if conduct by an individual is "illegal"? You are conflating several different ideas here, which is probably the source of your persistent confusion. 1) Actions are legal or not Illegal: Not authorized by law; Illicit ; unlawful; contrary to law The law sets out certain things that you must do (you must stop at a red light) and things you must not do (you must not drive under the influence). Sometimes actions fall into a gray area of the law, or aren't addressed at all, but if something is spelled out, then it's very clear whether the abstract action is legal or not. Running a red light is illegal. Driving under the influence is illegal. There are definitions and specified penalties for both. 2) A person may or may not be guilty of an illegal action Guilty: Having committed a crime or tort Abstract actions can be legal or illegal, but people commit crimes. When someone commits a crime, they are guilty of that crime. This is true whether or not they are ever prosecuted, or even if law enforcement knows who the guilty one is. If someone runs a red light at 2 in the morning on an empty street, it's still illegal and thus they are guilty of running a red - but no one will ever catch them. If someone is shot in the middle of the street, then someone is guilty of shooting them. Again, the shooter may never be found, but whoever they are, they are still guilty. 3) An individual may or may not be guilty of the crime of which they are charged. Charge: the statement of the alleged offense that brings a person to court If law enforcement (whether your local traffic cop or the FBI) believes that you are guilty of a crime, they can charge you with committing it. They may be right. They may be wrong. But the suspicion of having committed it is enough to charge you. To continue the traffic example: If an officer sees you running the red light, they can write you a ticket (effectively charging you) for doing so. They may or may not actually be right (it could have been yellow or malfunctioning, for example), but law enforcement has the power to charge regardless. 4) A defendant may or may be found guilty and convicted. Conviction: In a general sense, the result of a criminal trial which ends in a judgment or sentence that the prisoner is guilty as charged. Finding a person guilty by verdict of a jury. This is where the presumption of innocence comes in - the default assumption is that the accused did not commit the crime that they are being charged with, and it's the prosecutor's job to prove otherwise. If the accused is found to not be guilty of the crime, then they (presumably) didn't do it - it doesn't necessarily mean the crime didn't happen, just that this specific person didn't commit it. Alternatively, the defendant can be found not guilty for other reasons - the judge or jury can determine that the crime didn't take place, took place but was justified, or the defendant wasn't in their right mind at the time. On the other hand, if they are found guilty, they're convicted and sentenced to whatever an appropriate punishment is. TL;DR Whether something is legal is determined by the legislature when they pass laws. Someone who commits an illegal act is guilty of doing so, even if they are never charged. Again, this is determined by the legislature when they pass laws. People are charged with violations of specific laws by law enforcement. Defendants can be found guilty by the court system. In other words, only the courts can determine whether a specific individual actually committed illegal behavior, but the behavior is still illegal regardless. | This is a broad question about the powers of the police in England and Wales. I have been unable to find any UK legislation which directly addresses 'do not cross' tape (also known as police tape, crime scene tape or barricade tape). However, the police have broad statutory and common law powers, and ignoring 'do not cross' tape could be an offence in the same way as ignoring other police orders. In Director of Public Prosecutions v Morrison [2003] EWHC 683 (Admin), the High Court decided that at common law, the police have the power to cordon off a crime scene. Police had cordoned off an area to preserve evidence using tape labelled "Police: Do not Cross" [9]. The prosecution's case against the respondent was that, having been told not to enter the cordoned area, he challenged the police right to prohibit him from entering the area [10]. There was a dispute as to whether the respondent did cross the tape and other issues, but police ultimately arrested him for disorderly conduct [29]. The respondent was convicted in the Magistrates' Court of disorderly conduct under s 5 of the Public Order Act 1986 and wilful obstruction of a police constable under s 89(2) of the Police Act 1996 [1]. His conviction was set aside on appeal to the Crown Court, which found that the only statutory authority for setting up a cordon is in the Terrorism Act 2000, and the cordon had been established without the consent of the land owner or a warrant [17]. The relevant question for the High Court was: Was the Wood Green Crown Court wrong in law to hold that the Metropolitan Police on the evidence in this case had no lawful power or authority to close the public right of way over private premises by a cordon and forcibly prohibit the Defendant from using that right of way on foot against his will [4]? The answer is yes. The police have the power to cordon off a crime scene, but they must act reasonably: [W]hen seeking to investigate crime police officers do not have an unfettered right to restrict movements on private land ... but ... [a]s Lord Denning said [in Ghani v Jones [1970] 1 QB 693] "the police should be able to do whatever is necessary and reasonable to preserve the evidence of the crime" ... provided [the police] do not go beyond what is reasonable in the circumstances, routine scenes of crime searches may assume the owner's consent ... In the present case the police were entitled to assume consent ... we believe that consent could not lawfully be withheld [22]–[23]. So the police have the power to restrict movements on private land and can use this power to cordon off a crime scene. The police can arrest someone who unlawfully enters a crime scene, which may amount to the offence of wilful obstruction. It is harder to answer the hypothetical question where there is nobody around to enforce the cordon. This is a broader question about land rights; the answer would depend on who was trying to enforce the cordon and why. | he was arrested despite technically not doing anything wrong He was arrested because there was probable cause to believe that he was involved in the commission of a felony. The arrest was legal even if he was innocent. He has no basis for a successful lawsuit. | From a US perspective, in a word, "no". Firstly, "presumption of innocence" is in a trial, not in police interactions. Being arrested does not violate the presumption of innocence. Police do not need any reason to interact with you or ask you questions. Police can arrest you if they have probable cause to suspect you have committed a crime, but this is not always necessary. More on this later(in the fourth section). Secondly, I wouldn't describe requesting to see your ticket, or any document as a "violent communication", in general. It may be rude or insulting, but not violent. (Also "violent communication" is not a legal term. The closest legal terms, verbal assault and threatening communication, are also not this.) More over, there is no indication of am implication of lying in this request. Thirdly, there are many situations in which possessing a document or credential is not sufficient; one must legally display or present them upon request. For example, multiple occupational licenses such as liquor licenses and barber/cosmetology licenses require that the licenses be prominently displayed; whereas, in California at least, a vehicle driver on a public road must not only possess their driver's license and proof of insurance, they must produce them upon the request of any law enforcement officer (Source: https://www.dmv.ca.gov/portal/dmv/detail/pubs/brochures/fast_facts/ffvr18). Fourthly, there are situations in which you can be legally searched and questioned without reasonable suspicion. Examples of this include boarder searches and sobriety checkpoints. Sources: (US Supreme Court rulings): https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuerte; https://en.wikipedia.org/wiki/Michigan_Department_of_State_Police_v._Sitz A note on sources: bdb484 and I have opposing court case sources. My sources have binding precedent over all courts in the US, save the US Supreme Court, whereas theirs don't have any binding precedent, but are more directly on-topic. | It seems to not be allowed for a UK police to lie. The Police and Criminal Evidence Act 1984 makes it illegal for the police to mislead a suspect in order to make them believe that the police have evidence which they do not or that the evidence they have is stronger than it is, or that there is a possibility of leniency (for example in return for ‘cooperation’) where none exists. Realistically, there is no reason that a police officer might lie to a suspect during interview. Also see from innocenceproject.org: The law does not allow lying to suspects, under any circumstances. | Prior to Tennessee v. Garner, 471 U.S. 1 (1985), common law allowed police to use deadly force to effect the arrest of a person suspected of a felony. Even though SCOTUS there held that such a practice violates Fourth Amendment civil rights, I was surprised to find that in some states it is still lawful for police to use deadly force to effect an arrest! Let us examine the most extreme case, which is that the police can legally shoot at you to effect your arrest. As explained here, you are always allowed to resist "excessive force." If you make it to court, these qualifications (e.g., "necessary" and "excessive") are ultimately decided based on what a "reasonable person" would have believed in the situation. So if a cop shoots at you, and you "dodge" the bullet, it is possible for you both to be found not guilty of any crime. I.e., the cop can be found to have acted "reasonably" because he believed you were a violent felon and shooting you was the only way to stop you. And you can be found to have acted "reasonably" because you believed you were being subject to excessive force. While this is an interesting hypothetical, in practice of course by the time a cop is shooting at you you are almost certainly going to be charged with resisting arrest. Or, if the cop fired in self-defense (rather than to effect an arrest) you will be charged with a number of far more serious crimes (starting with felony assault, reckless endangerment, and going on from there...). |
If I became a naturalized UK citizen, would I lose my Irish citizenship? I was born in the United States, as were both of my parents. My father is an Irish citizen by descent - his grandmother was from Ireland. I was registered as an Irish citizen when I was about 9 or 10 years old. If I were to move to the UK and become naturalized, would I lose my Irish citizenship? (I don't care if I lose my US citizenship, but I am not willing to naturalize in the UK if it costs my me Irish citizenship) | In summary: Statute law allows Ireland to revoke your naturalisation on the grounds of acquiring another citizenship. But this law has recently been found unconstitutional. In practice, the government does not do this anyway. In the case of the UK, it is particularly unlikely. As an Irish citizen, there is no particular reason to pursue UK naturalisation. The law As of now, the possibility deprivation of Irish nationality for any reason is unclear, because of a ruling of the Supreme Court (Damache v Minister for Justice [2020] IESC 63) that declared the statute allowing for this to be unconstitutional. That was because the law (section 19 of the Irish Nationality and Citizenship Act 1956) did not provide enough procedural safeguards. The Minister would initiate the process and make the final decision after expert advice, but was not an "independent and impartial decision-maker". It is now for the legislature to replace section 19 so as to cure the defect. Under section 19, the grounds for revoking a certificate of naturalisation include: (b) that the person to whom it was granted has, by any overt act, shown himself to have failed in his duty of fidelity to the nation and loyalty to the State and (e) that the person to whom it is granted has by any voluntary act, other than marriage or entry into a civil partnership, acquired another citizenship. The issue in Damache was (b) following the appellant's conviction for terrorism offences in the United States. Regarding (e), it would seem on its face that acquiring UK nationality might trigger the possibility of revocation. However, in the scenario envisaged, that would leave you without any EU nationality, and in the Tjebbes case of 2019 (ECLI:EU:C:2019:189) the European Court of Justice found that such deprivation would only be possible after consideration of the specific consequences for the person concerned and their family. This point was not reached in Damache but would also tend to rule out any "automatic" loss of nationality; it would have to be the result of some longer and more involved process. Whatever replaces section 19 would have to be of this kind. Special considerations also apply if loss of Irish nationality would leave you stateless, but that is not the issue in question. The policy Aside from cases of immigration fraud and terrorism, the State has rarely initiated processes under section 19. In fact, official guidance on immigration and nationality admits a policy of dual nationality being allowed. For the United Kingdom, there are many people who are dual British and Irish nationals. The understanding between the governments with respect to the Common Travel Area, the Good Friday Agreement, and the general historic situation, would make it very unlikely that Ireland would treat acquisition of British nationality as a problem. The British-Irish Agreement of 1998 includes that both governments respect the "right to hold both British and Irish citizenship" for the people of Northern Ireland. Even if you are not a person of Northern Ireland, any action by the government of Ireland that would be seen as potentially touching on this right is politically untenable. Irish citizens have full rights in the UK anyway Under UK law, an Irish citizen can enter without a visa, live there as long as they want, get a job, claim benefits, vote in elections, be elected as an MP, and do everything that a UK citizen can normally do. There may be a vanishingly few exceptions for national security jobs. Because of this, there isn't much reason why being naturalised in the UK would be worthwhile. You could do so for sentimental reasons but as far as the UK's concerned, you already hold a status that's just as good. Extra note: UK honours (In response to a comment below.) The British Crown does grant honours, including knighthoods, to non-UK citizens and dual/multiple citizens, in some circumstances. It depends on whether the other nationality has King Charles III as head of state, and the attitude of the foreign government. Therefore, Canadians do not get knighthoods (Charles is King but the Canadian government would rather not), Belizians do (Charles is King and the government is fine with it), and Americans can get it as an honorary award that does not come with the Sir/Dame title. For Ireland, Terry Wogan is an example of how this works. He was an Irish citizen who lived and worked in the UK for many years. In order to receive a British knighthood, he had to take up British citizenship (which was granted on an expedited basis), becoming Sir Terry. On the other hand, Bob Geldof is an Irish citizen (only) who holds an honorary British KBE, and is not formally entitled to be Sir Bob - much like American recipients such as Rudy Guiliani. The Irish government does not object to either possibility, although some individuals do. An American-Irish-British triple citizen would be able to receive a UK knighthood and use the title Sir, assuming that the British government was willing to grant it, and unless there were some foreign legal blocker (e.g. the U.S. government does not allow federal officeholders to receive overseas decorations). | No this is not a violation of discrimination law as there is no official language (de jure) in the United States at the Federal Level even though English, as the most common language is considered the National Language (de facto). Language is not a Federally recognized basis of discrimination for private business (your local state may require it though). Compared to Canada, where all services must be in English or French to comply with their Official Languages being English and French. It could be argued that, given America's very liberal Freedom of Speech laws, that requiring catering to a specific language by law could be challenged as a violation of your First Amendment Rights (after all, if you have freedom of speech, then you should have freedom of speech that others do not understand). Since there is nothing stopping an English Speaking American from learning the language you wish to do business in, nor is it confined to any race or religion (I, as a predominotly European descent, am perfectly capable of learning Arabic... or Japanese... or Navajo...). Where the confusion comes from is that in the United States, courts will often provide a linguistic interpreter for those who are not native English Speakers (even if they are conversational, given how technical legal terms can be, it may people who speak English as a Second Language will avail themselves of this service for the sake of making sure the nuance is properly translated). | Yes, of course you still owe it. There's no logical reason why ceasing to be a citizen should relieve you of existing obligations. The State Department mentions this explicitly Persons who wish to renounce U.S. citizenship should be aware of the fact that renunciation of U.S. citizenship may have no effect on their U.S. tax or military service obligations (contact the Internal Revenue Service or U.S. Selective Service for more information). In addition, the act of renouncing U.S. citizenship does not allow persons to avoid possible prosecution for crimes which they may have committed or may commit in the future which violate United States law, or escape the repayment of financial obligations, including child support payments, previously incurred in the United States or incurred as United States citizens abroad. I think the "may" is just to cover their butts - I can't find any indication of any provision that would forgive tax debts when you renounce. Indeed, renouncing your citizenship may cause you to owe more tax, because of the expatriation tax. Basically, all your unrealized capital gains are treated as if they were realized and taxed on the day before your expatriation, and you owe capital gains tax on them. | This is going to depend very much on exactly what is in writing. Note that your father could, if he chose, directly leave both the house and the IRA to his partner. If you become the homeowner after your father's death, and the "3-year right to use" and the cost sharing provisions are not in writing, then neither is legally binding. You and the partner may choose to honor your father's wishes, but if he does not put them in the will or another legal document, neither of you is bound. The question says: I cannot evict her if needed, as she is a senior citizen, living in my home, with no lease. I do not know of any jurisdiction in which there is a general ban on evicting a senior citizen in all cases. There will be some restrictions no doubt, but they will depend on the local laws. And of course you may not wish to exercise all the legal rights you may have. You would ultimately, have the right as homeowner to evict the partner. I don't what procedures would need to be followed legally -- that will depend on the specific jurisdiction, which the question does not list. As the homeowner, you would be legally responsible for maintaining and paying taxes and other expenses on the house. The partner would be either your tenant or your guest. Once you have title (and that will take some time after your father's death, in all probability) if the "right to use" was never put in writing, you could ask the partner to sign a lease. The terms could be whatever the two of you choose to agree on. If she becomes a tenant under such a lease, she has both legal rights and legal responsibilities, and each of you has the protection of a clear agreement. You would be wise to consult a lawyer to learn exactly what the local law does and does not permit. Your father might well be wise to put his wishes more clearly in writing while he still can. | Question: Do I need a EU passport or EU ID card to legally work in the EU (or establish that I have the right to work in the EU)? Or is a certificate of citizenship sufficient? Legally, your right to work is not contingent on this and there is no Europe-wide rule that makes holding any document mandatory. Importantly, if you do start working anyway, you are not committing a crime and cannot possibly be banned or forced to leave the country. You do have the right to work from the day you became an EU citizen and if any doubt arises down the line, you should be able to clear it up later. In practice, employers are sometimes supposed to check you are allowed to work (and for that would require some proof of your citizenship) but they don't necessarily need a passport or ID. What's typical on the other hand is that you have to provide an official proof of address (in the countries where you have to register your address with the authorities) and the local social security, insurance, or national tax number. Both of these will require dealing with the authorities and will be considerably more difficult, if not downright impossible, without a national ID card or passport (in fact it can even be difficult with a passport). I worked in multiple EU countries and I don't recall always having to present my ID to employers. I recall at least one instance (in Germany) where I could start working without one (it had just been stolen) and another one (in the Netherlands) where I started on the day after I arrived, without official address nor tax number (BSN). In both cases, I was expected to solve these issues within the first month and you risk a fine if you don't register within a week or two but it was neither illegal nor impossible to start working before all the formalities were completed. None of this means I would be completely comfortable about being months without a passport. But the main issue for you will be entering the country and what your employer's HR department is prepared to tolerate, not any sort of legal obligation to hold a passport to work. Note that in one of the cases I described above I went to the local consulate to get an emergency passport. It wouldn't have been possible back in my country of citizenship but there are some special procedures when you reside abroad. These rules change all the time and depend on your country of citizenship but that could be worth a try. | I assume that you were not born in the United States, and that your mother was/is not a US citizen. If these assumptions are incorrect, the answer below does not apply. A child born outside the United States to a US citizen and a non-US citizen will be a US citizen so long as the parent spent a certain amount of time physically present in the United States. For a child born before 1986 to gain US citizenship through a single parent, that parent would have had to spend 10 years total in the USA, of which at least 5 years were after the parent’s 14th birthday. So if your father was a citizen and lived in the US until at least 1966 or his 19th birthday (whichever was later), you would be a US citizen. However, the document you describe does not prove that your father was a US citizen. Instead, it only proves that your father was admitted to the US as an permanent resident (a so-called “green card”). If your father did become a citizen, he would have received a Certificate of Naturalization. This would be necessary to prove your father’s US citizenship and, by extension, yours. | Yes, this is illegal. If by "across the state" you mean some distance away but in the same state then the exact law will depend on which state you are in, but as a rule any "conversion" of property to the use of another counts as theft. In this case your aunt has "converted" the property to the use of your Nan (funny legal phrase). The fact that the people doing this are your relatives makes no difference. (When asking about the law here you should always say which state you are in.) Although theft is a crime, you could also start a civil case to get your property back without involving the police. The details depend on where you are, but try googling "(your state) small claims court". Many states have a process for collecting low-value debts or other property without needing lawyers. You need to have a firm conversation with your aunt about this. Tell her that you want your property back, and don't back down. Also call your Nan and explain this to her as well; she may not have realised that she is in possession of stolen property, which is usually a separate crime. If you want more advice on how to get your property back without starting a family row then you might ask on the Interpersonal Skills SE, but it might be better to start with "When are you planning to return my property?" and leave "You are a thief" as a last resort. Edit: As Eric Nolan points out in the comments, you may be a minor. If you are under 18 then your aunt has authority over you that she wouldn't have if you were older. For instance, if she is concerned about your use of video games impacting school-work then confiscating your console and putting it out of your reach would be perfectly legal. | The Section 34 of Constitution of the Kingdom of Thailand says (highlight mine): […] No person of Thai nationality shall be deported or prohibited from entering the Kingdom. The referenced document points to the most recent 2017 Constitution. So the naive answer is No, however some legal gap may be found by the Constitutional Court (Section 27). More specifically, it would depend on the legal equivalence of terms "Thai citizens" and "person of Thai nationality". |
When can someone who's not a police officer use physical force? When can a civilian use physical force on someone? Are there any other times besides in self defence? Is it legal to use physical force in the event of an emergency, for example if you shove someone out of the way of a car and they end up falling and breaking their ankle, can you get sued? What if you see someone running out a store and people running after them, so you grab them, but it turns out they weren't actually robbing anything? Interesting story: I was on a bus and an altercation occurred between the bus driver and someone who got on with an expired ticket or something like that. It started by arguing, but then the bus driver shoved the passenger off the bus. Then the passenger punched the bus driver hard in the face. Then it was a full fight. The police arrived and put the passenger in handcuffs, and it seemed like witnesses took different sides as to who started it. Was it legal for the bus driver to shove the passenger off the bus for not paying? Was it self defense that the passenger hit the driver back? I know some bus companies have policies telling the drivers not to get physical, just call the police if there's a problem. | Battery – offensive, nonconsensual contact with another person – is a crime unless it is justifiable. There are numerous justifications, and the standards for them can vary. For example, self-defense is a justification for battery, and the standard is usually the "reasonable person." I.e., would a reasonable person in the position feel that force was necessary to defend against imminent injury, and was the force used reasonable and proportional to the perceived threat? Force can be used to effect a lawful arrest. The standards for arrest are different for police officers. For example, police typically need only have "probable cause" (i.e., a justifiable belief that a person likely committed a crime) to effect an arrest, and at the point police are typically allowed to use any force necessary to effect the arrest. On the other hand, "citizens' arrests" are typically limited to more serious suspected crimes and, in practice if not in theory, subject to higher levels of scrutiny. So, for example, a cop grabbing the person being chased from a store would almost certainly be immune to charges of battery. A bystander doing the same thing would have to be prepared to justify his interference in civil, if not criminal, court. Some jurisdictions accord a higher right to use force to owners of property. For example, "shopkeeper's privilege" allows merchants to use reasonable force to detain individuals they reasonably believe to have stolen from them. "Castle doctrine" allows people to use lethal force against any intruder in their residence. In the bus fare scenario you describe the bus driver is guilty of battery. Even if a prosecutor declined to charge him for the crime, the victim of that battery could sue the driver civilly. Likewise, the passenger who chose to subsequently attack the bus driver is guilty of battery, because (presumably) there was no ongoing physical threat once he was off the bus. | The law says don't drive an unsafe vehicle on the road. You disobeyed the law. There were methods of having your tyres fixed without driving on the road (e.g. taking the tyres to the mechanic in a different vehicle, calling a mobile mechanic etc.) so you have no defence of necessity. In all likelihood you will be convicted and penalised. You need legal advice. Whether it's fair or not is a philosophical consideration, not a legal one. | No. Police are not permitted to impose any punishment whatsoever. Their role in the American justice system is to prevent and investigate criminal offenses. What you're describing is a punishment for a criminal offense, even though it is imposed outside the criminal justice system. The same principles that prevent an officer from punching a suspect in the face or demanding a cash payment to not write a ticket prohibit a police officer from imposing a punishment of his own design, with or without your consent. | First off, you cannot booby trap your property, period. It is both illegal and tortious. But, as you noted, there are already questions/answers that deal with this issue. Sure enough, if the police get a no-knock search warrant, that in and of itself is the Court order allowing entry by any means necessary. When the officers, there by right of law, breach the outer perimeter and stop at the warnings, they will not be seeking any other court orders to have you allow them "safe entry". Their warrant gives them all the right they need, as probable cause of crime and violent intent or intent to destroy evidence was already presented to a judge. If, in real life, you actually put up signage or state explicitly that they're being forewarned that you intend to harm, trap, maim, or otherwise make it unsafe to enter; or that doing so will result in an attempt to destroy evidence, that is something they have already assumed (hence the seeking and granting of the no-knock vs. a regular search warrant). However, the signs in and of themselves are not protected speech, but rather overt threats, and that would put you in a very precarious position indeed. If the police get a "no knock" warrant (the most invasive, difficult to get warrants, whereby there is a grave risk of destruction of evidence or injury to persons), the police will ensure they have safe passage – they've come prepared for dangerous entry long before your signs, but once they see them, you could rest assured they will take them as they are intended: as a direct threat to their safety, and they will deploy a SWAT or other heavily armed entry team (who is usually there anyway for these dangerous entries). You could expect things like smoke/out canister and teargas, flash bangs, and heavily armed and well armored officers attempting to force you from your dwelling. Presumably, if you need to disarm traps to escape the situation, they can enter. Assuming you're home when they invade with chemical weapons, whether you come out or not, they will force you to disarm whatever booby trapping you may have in place that may destroy evidence, likely walking you in as their human shield in the event you're lying about any dangerous ones. That is probably your best case scenario. They may just decide to throw you through the perimeter once they get their hands on you, just to see what happens! If you don't exit and are home or if you are lucky enough to be out, the bomb squad, ATF, and SWAT will converge on your property in less than typical means. Because from your warning they can assume some incendiary or explosive device exists, bringing it into the jurisdiction of other agencies. If they cannot disarm the trap, they would send a robot in first to set it off, or cut through your roof, or knock down a wall – whatever it takes to get in without using a typical means of ingress/egress, so as not to chance your trap. Regardless, you can rest assured that they will get in, and you will pay for the trap you set for law enforcement. Further, to whatever charges you'd have been faced with from evidence flowing from the original warrant will now be added additional charges like attempted murder of a peace officer; if you have any roommates or known associates: conspiracy to do those things; attempted destruction of evidence, criminal interference with a police investigation ... all at a minimum. If anyone is actually harmed, your signage offers you no shield from criminal or tort liability, and you will be lucky to live through the experience once they get their hands on you. Police tend to not like being the targets of intentional maiming, dismemberment or death. You have to understand that, according to this hypothetical, you are intentionally trying to harm law enforcement, or destroy evidence of your dangerous criminal activity. These are not invaders, or intruders according to the law; they are the people whose job it is to enforce the laws, collect the evidence (if you weren't getting arrested pursuant to the fruits of the warrant, you certainly would be at that point). The signs themselves would make excellent exhibits in the coming case of State v. you. BTW: The only reason they have left John Joe Gray alone is that he knows the Henderson County Sheriff Ronny Brownlow, who has been told that the ATF, FBI, and State SWAT, would all be happy to enter and get or kill Mr. Gray if need be. Since the Sheriff never filed any federal charges, and has determined that he doesn't want to breach (and it's in his jurisdiction to determine this), the Sheriff, aware that Gray's entire family is holed up in the "compound", decided it's not worth going in. It's as well known as it is anomalous. When the police want in, and have the right to get in, they will get in. That Sheriff just decided it's not worthwhile. | The most obvious answer is that he should have knelt on his lower back, not on his neck. And this should not be maintained for an extended period, only until appropriate restraints (e.g. handcuffs) can be applied. The proper use of force is to put the other person in a situation where it will hurt them if and only if they resist. For comparison, consider this amazing 2018 take-down: Toronto van attack: Witness video of takedown of person believed to be suspect - YouTube And keep in mind that this individual hadn't simply tried to pass counterfeit money in a convenience store; he'd just been on a rampage that killed 10 people and seriously injured 16 others: New footage revealed from Yonge St. van attack of Alek Minassian’s path of destruction - YouTube — Toronto van attack - Wikipedia | “Never” is a very big word… If a burglar stabs someone in claimed self defense, then we have evidence that this was an armed burglary, so that won’t go down well for that burglar. And your rights to self defence are greatly diminished if you caused that situation illegally. So should you get into the situation, try to run away if at all possible. If you had any chance at all to escape your self defence argument will not be accepted. The only possible situation with self defence is if you are threatened with illegal violence that cannot be justified by the fact that you are a criminal. For example you enter a home, two people with guns inside catch you, bind you to a chair so you are no danger at all, and instead of calling the police they announce they will kill or maim you. This is of course very unlikely to happen. | This is an excellent explanation. All Australian jurisdictions have (in general) common road rules. In NSW these are enacted by Road Rules 2014 regulation under the Road Transport Act 2013. The relevant provision is Clause 306: 306 Exemption for drivers of emergency vehicles A provision of these Rules does not apply to the driver of an emergency vehicle if: (a) in the circumstances: (i) the driver is taking reasonable care, and (ii) it is reasonable that the rule should not apply, and (b) if the vehicle is a motor vehicle that is moving-the vehicle is displaying a blue or red flashing light or sounding an alarm. From your statement (a)(i) and (b) would seem to apply so it becomes a question if (a)(ii) does. Well, you don't know the circumstances so you can't judge if it is reasonable that the rule not apply: if the police car were involved in a collision, caught on a red light camera or booked then the driver would have to show that it was. It is worth noting that some road offences like drink or dangerous driving are not in the Road Rules, they are in the Crimes Act and so the exemption doesn't apply to them. It is also not a shield from civil liability although the difficulty of proving negligence goes up because disobeying the road rules is no longer enough. | Jurisdiction? washington. RCW 9A.16.020 says when force is lawful. (1) Whenever necessarily used by ...a person assisting the officer and acting under the officer's direction Not apparently applicable in this case. (2) Whenever necessarily used by a person arresting one who has committed a felony and delivering him or her to a public officer competent to receive him or her into custody Looks promising, except RCW 9A.52.070 says "(2) Criminal trespass in the first degree is a gross misdemeanor". For the record, (3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary but you didn't describe malicious trespass (which incidentally is not statutorily defined in Washington). Our last hope is: (4) Whenever reasonably used by a person to detain someone who enters or remains unlawfully in a building or on real property lawfully in the possession of such person, so long as such detention is reasonable in duration and manner to investigate the reason for the detained person's presence on the premises, and so long as the premises in question did not reasonably appear to be intended to be open to members of the public For example, you can detain a person for a few seconds to ask what he's doing there and to get whatever answer you are going to get. It does not extend to "detain the trespasser until you are satisfied that he has truthfully identified himself", or "until the police show up". |
i am charged with violating SORNA's registration. A county judge recently ruled SORNA unconstitutional. what to do? what should my ESQ do for me? charged with "failure to register", been on bail for over a year. have "call to the list" the 30th of this month for trial! my public defender shows no interest in defending me. two days i stumbled upon a local county judges' decision that SORNA and the registration process is punitive ruled it unconstitutional. I called my lawyer 3 times with no response. what should he be doing for me in response to this decision? i have NO faith in my lawyer and want to ensure i am getting a fair shake. this has been a very long road, and i appreciate any help and advice you could give me. | Generally, a local county judge’s decision is not binding on the judgement of another judge unless it is that of an appellate division. The law of the case principle could be referred to as an argument if it would have been decided by another judge in the same case (some courtships work on a rotary basis with different judges sitting over a single case). This would mean that the court would give greater deference to that decision; however, applying the principle is a matter of administrative preference to save resources of the court. Whether or not the other judge would reconsider the matter would be within their discretion absent binding authority to the contrary as a “law of the case” is not binding. In fact, even if it would have been the same judge with the exact same facts deciding the matter in a final judgement, there wouldn’t be much to do. One could argue that deciding differently is a violation of the Fourteenth Amendment which, if the judge fails to explain the different decision on the exact same facts may have a reasonable probability to get overturned provided the unconstitutionality finding was correct in the first place. If the matter was, in fact, unconstitutional, appeals may overturn a contrary judgement if the issue is brought up in the lower court and enters the court record. It may have some weight still to cite the decision of the other judge as the argument may be given more weight than if merely delivered as the argument of counsel. | There isn't a general answer to this question. It needs to be evaluated incident and sub-incident act by sub-incident act. The use of force is legally permitted to prevent harm to others and to the property of others under some circumstances. Citizens arrests are permitted under some circumstances, but generally, the person making the arrest must have personal knowledge of the crime while it is in the process of being committed. Some laws prohibit wearing masks under some circumstances, but usually not in all circumstances. Your client's "business model" is not consistent with being able to testify in court, so the criminal justice system will only be able to convict someone whom your client delivers to police if they can do so without your testimony. As a general rule, the 4th Amendment exclusionary rule does not apply to evidence collected by private parties or to statements obtained by private parties that are not made under duress that are not Mirandized. But, if your client is effectively "deputized" or becomes a "de facto" agent of the state who is called up to be a member of a posse for the police, for example, by using an agreed symbol such as shining a light with a symbol on it on some clouds, at that point, with respect to that matter, the 4th Amendment exclusionary rule and Miranda probably do apply to evidence that your client obtains, and exclusion of that kind of evidence could make prosecution much more difficult, unless the prosecution can successfully make an argument that the other evidence that the illegally obtained evidence leads them to is not "fruit of the poisonous tree" because it would have inevitably been discovered in due course using only the legally obtained evidence. Even if your client does violate the law, law enforcement is not obligated to investigate his alleged crimes even if the victims complain, and prosecutors are not obligated to prosecute those crimes, even if they have overwhelming evidence of guilt which they could use to secure a conviction. Prosecutorial discretion is basically absolute. Your client might be sued civilly for operating a corrupt enterprise under RICO, for various intentional torts, and for negligence, by people who think that they have been harmed by his conduct, but someone can only sue your client if they can figure out who he is and serve him with civil process. If you are helping your client conduct on ongoing criminal enterprise, whether or not the crimes are prosecuted by the criminal justice system, the attorney-client privilege you have with your client is probably forfeit should you be placed under a subpoena and your may be violating other ethical rules. But, of course, somebody has to figure out that you are part of this criminal enterprise before you suffer any consequences for being involved. | Whatever crime or infraction you are charged with, it applies to you personally however they spell your name and however you spell your name. Whether or not you should go depends on the alternative that you face (large fine or jail time for failure to appear?). An argument that you didn't commit the offence because they misspelled your name would hold zero water. | If you want to have some fun and increase the likelihood that you will go to trial soon, you can file a motion to dismiss for failure to comply with the Speedy Trial Act. If you have co-defendants they may be the reason for delay. You could then move for a severance. On a slightly different note, since 95% of federal criminal cases result in the imposition of a penalty on the accused, you should start calculating your guidelines. | when is it a good idea to get a lawyer? Only when you are not confident that you can put enough dedication to the matter & learning curve, or when you are not confident of your ability to cope with the emotional/frustrating toll of judicial proceedings. I do not mean this in an ironic way or to challenge you. It is just important to avoid a false sense of confidence. However, if you decide to represent yourself in court, you will have much more control of your case than if you delegate it to some lawyer whose attention is split with many other unrelated cases. Also, never get intimidated by pedantic or wasted phrases such as "he who is his own lawyer has a fool for a client". In the XXI century, most urban people can read and write, Canadian laws are written in your own language, and the Internet provides many informative resources for free. Furthermore, even knowledgeable attorneys happen to be clearly wrong about the law, as I pointed out here. I feel like the bulk of the work is carefully detailing what happened which feels more like the job of a news paper editor. It involves more than that. A newspaper editor does not get entangled with subtleties of a story or of the law, and subtleties are often decisive in judicial proceedings. Litigation also involves intensive legal research so as to find case law (that is, binding court decisions) and statutes that support your position. The application of these laws to a particular case are often premised on subtleties. Hence my remark in the previous paragraph. A newspaper editor hardly ever knows what questions or evidence are required or would suffice for proving a case. This knowledge only comes through (self-)education and experience. What options exist if I don't want to pay a lawyer a bunch of money and am willing to do most of the work myself, for example would pro bono be a good option? Start by searching for "pro se" and "Canada" on the Internet. Some of the results might actually provide guidance on what procedural law(s) apply in your jurisdiction, the legislation, and so forth. As for searching case law, there should be a Canadian equivalent of http://www.leagle.com/leaglesearch (sorry I am not knowledgeable of the specifics of Canadian litigation/resources). Based on your other post, I presume you are or will be getting acquainted with the Tenancy Act. I recently addressed here a question about the Act, showcasing the combination of that legislation and contract law (interestingly, many tenants presume their issue with the landlord is strictly about landlord-tenant legislation when in fact it has to do with contract law). I am sure in a library will find plenty of useful books covering the basics of the legal system as well as the rules of civil procedure. Find out whether the public has access to case files in Canadian courts. If so, go to a courthouse and study those files. Get acquainted with the drafting and format of pleadings, motions, responses, briefs, and so forth (although in Small Claims court much of this would be unnecessary, for small claims proceedings are much more simple). This will show you the practice aspect of what you learn from books. When using a term that you consider essential to your case, be sure to consult its meaning in a legal dictionary (I do not know whether Black's Law Dictionary is applicable in Canadian litigation). The meaning of many words are much more specific in litigation compared to their common usage. Or would getting a real lawyer and spending only one hour of his time be better? I highly doubt it, especially if you have not gained any background in law. A lawyer will not explain things from scratch, let alone the intricacies you need to know. The most you could get from speaking with a lawyer for an hour would be notions which are too generic to be of any use at all. Moreover, I doubt that a lawyer in a phone interview will give you any legal references for you to verify on your own. In the very beginning of my litigation, I spoke with a law firm as assigned by a lawyer referral company. By then I already had some background in law and therefore I had specific questions. The guy from that law firm just kept babbling ambiguities very quickly. At the end of the phone call, I thought "nah, I will do this by myself". You might end up making that decision in your current or future matters. | To paraphrase the Princess Bride: "I don't think those words mean what you think they do". The "truther-activist", "sovereign citizen", and "Citizen vs. Human Being" concepts will only hurt you. It has never succeeded, to my knowledge; It has failed multiple times. Let me tell you a little about myself to illustrate what I mean: I am a software developer (and it seems from your profile, you are at least somewhat computer inclined, so this will hopeful make sense to you). The business side of the company I work for think that myself and my team write "magic code", and having the system do whatever they ask for is just a matter of pressing enough buttons in the correct order. It totally insane, and it completely analogous to what you are propose. The court is a carefully designed system, and you don't have the power to make arbitrary changes to it. Certainly not through the "arbitrary button presses" of "legal fiction". Some things to note Legal fictions are never summoned. People are. Organizations are. See initial paraphrase with regards to "legal fiction". Your legal fiction has not been summoned, you have. You will be appearing as yourself, not a straw man. I'm sorry to break it to you, but whomever you have heard this from is wrong, and in the most best case scenario, they are confusing what they want to be true for reality. If they have received any money from you in relation to this opinion, then they are almost certainly a scammer and a liar. If you insist on going further with this nonsense, then you WILL lose, regardless of what actual facts you have. My condolences. Now, to answer the question you asked: Yes, you can file a monition for discovery before first appearance (but not before pleading). You can file by mail, and in some jurisdictions, online. Source: https://www.nycourts.gov/courthelp/goingtocourt/caseBasics.shtml. | There does seem to be a meme in the UAE of people threatening legal action for negative reviews, as a form of defamation. The police will simply tell them that this is not a crime, go hire a lawyer if you want to sue them. If you block them, perhaps they don't have any other way to contact you (seems that was the point of blocking them), which means that you cannot receive their offer "If you pay us AED 1,000 we will not sue you", which could be a problem if they win their court case. Still, it is perfectly legal to ignore or block them, up to the point that you are actually served with legal papers. When they actually sue you, "blocking" is irrelevant, they will hire a process server to hand you the legal papers that command you to appear in court. | The citation could be written but it should be easy to beat. In the circumstance that you describe the accused could just say the he was not driving his car at the time. If the prosecution is a sham with all your friends saying you all saw this thing, then the defendant can bring all of his friends to say that he was at some other place. The benefit to having a cop on the scene is that the cop will get ID and positive identification. The other thing the cop has is expert judgment. If a cop sees unsafe lane movement and writes a ticket, his testimony in court carries more weight than the "it was not unsafe!" testimony of the accused. Keep in mind, getting all of your witnesses to court on the same day, after continuances and other delays, and getting them all to tell the same story to overcome the presumption of innocence is no small feat. All that to say, it's easier with police as witness. There are two mechanisms which could get you where you want to go. Private prosecution and citizen's arrest. Private prosecutions are a part of history but not strictly unavailable at the state level. You could write up some charging documents to see if you can get your target indicted. Citizen's arrest is interesting because the rules are fairly unclear unless governed by a specific statute. There are two necessary parts of citizens arrest and the first part gets the attention. The first part is the detention (arrest). The crimes for which a citizen can legally detain a suspect are likely defined by state statute. The second part is giving testimony about the witnessed crime. Let's assume that you see a felony happen and watch the perp walk into a gas station bathroom. You are prepared to arrest, do part number one, and then call the cops, to do part number two. But while you wait for the guy to come out of the bathroom a cop walks up. You explain the felony and the cop goes into the bathroom and arrests the guy. It's purely witness testimony that led to the arrest and the indictment (physical evidence - let's say there is none) and even the trial. You successfully get the guy indicted and when you show up to testify you tell the story as you witnessed it. Now the accused gets to take the stand. When he takes the stand he says, "it was the other guy." When asked, "what other guy?" He says, "I was in the bathroom and a guy ran in and went into the stall. Then a cop came in and arrested me." Reasonable doubt right there. How much more if it's a bunch of friends ratting on some lone driver? Police need evidence. Prosecutors need evidence. Judges need evidence. |
The right to vote and property ownership? In 1792, in France even men without property were enfranchised. How was it before exactly? What is meant by ‘without property’? Only those who didn’t own a home or a piece of land? Or any kind of property? Could other kind of property, like owning a couple of horses, give the right to vote? | The French Revolution took place in 1789. Prior to that France was an absolute monarchy and no one could vote in the modern sense of an election of governmental officials. There was a constitutional monarchy prior to 1792 when the First Republic commenced. The window for the French Revolution arose when the King sought input from the public from three "estates" in an effort to raise taxes which got out of control, and also had some aspects of a general election: The Estates-General was divided into three parts: the First for members of the clergy; Second for the nobility; and Third for the "commons". Each sat separately, enabling the First and Second Estates to outvote the Third, despite representing less than 5% of the population, while both were largely exempt from tax. In the 1789 elections, the First Estate returned 303 deputies, representing 100,000 Catholic clergy; nearly 10% of French lands were owned directly by individual bishops and monasteries, in addition to tithes paid by peasants. More than two-thirds of the clergy lived on less than 500 livres per year, and were often closer to the urban and rural poor than those elected for the Third Estate, where voting was restricted to male French taxpayers, aged 25 or over. As a result, half of the 610 deputies elected to the Third Estate in 1789 were lawyers or local officials, nearly a third businessmen, while fifty-one were wealthy land owners. The Second Estate elected 291 deputies, representing about 400,000 men and women, who owned about 25% of the land and collected seigneurial dues and rents from their tenants. Like the clergy, this was not a uniform body, and was divided into the noblesse d'épée, or traditional aristocracy, and the noblesse de robe. The latter derived rank from judicial or administrative posts and tended to be hard-working professionals, who dominated the regional parlements and were often intensely socially conservative. To assist delegates, each region completed a list of grievances, known as Cahiers de doléances. Although they contained ideas that would have seemed radical only months before, most supported the monarchy, and assumed the Estates-General would agree to financial reforms, rather than fundamental constitutional change. The lifting of press censorship allowed widespread distribution of political writings, mostly written by liberal members of the aristocracy and upper middle-class. Abbé Sieyès, a political theorist and priest elected to the Third Estate, argued it should take precedence over the other two as it represented 95% of the population. The Estates-General convened in the Menus-Plaisirs du Roi on 5 May 1789, near the Palace of Versailles rather than in Paris; the choice of location was interpreted as an attempt to control their debates. As was customary, each Estate assembled in separate rooms, whose furnishings and opening ceremonies deliberately emphasised the superiority of the First and Second Estates. They also insisted on enforcing the rule that only those who owned land could sit as deputies for the Second Estate, and thus excluded the immensely popular Comte de Mirabeau. Meeting of the Estates General on 5 May 1789 at Versailles As separate assemblies meant the Third Estate could always be outvoted by the other two, Sieyès sought to combine all three. His method was to require all deputies be approved by the Estates-General as a whole, instead of each Estate verifying its own members. Since this meant the legitimacy of deputies derived from the Estates-General, they would have to continue sitting as one body. After an extended stalemate, on 10 June the Third Estate proceeded to verify its own deputies, a process completed on 17 June; two days later, they were joined by over 100 members of the First Estate, and declared themselves the National Assembly. The remaining deputies from the other two Estates were invited to join, but the Assembly made it clear they intended to legislate with or without their support. In an attempt to prevent the Assembly from convening, Louis XVI ordered the Salle des États closed down, claiming it needed to be prepared for a royal speech. On 20 June, the Assembly met in a tennis court outside Versailles and swore not to disperse until a new constitution had been agreed. Messages of support poured in from Paris and other cities; by 27 June, they had been joined by the majority of the First Estate, plus forty-seven members of the Second, and Louis backed down. In addition to referencing the selection of the Estates-General, the reference to "without property" also considered people who weren't land owners and was in reference to the practice in England and its colonies and in the newly independent United States of America, where real property ownership was often a requirement to be eligible to vote, as those were pretty much the only other major countries that had a widespread right of the public to vote for elected officials in government at the time. (There were small city state exceptions and perhaps Iceland as well, but British and former British colonies were the main model). | Since electors are in fact free to vote for whoever they want (though don't usually deviate from their assignment), the branch of federal government that would be most involved is Congress. A constitutional amendment would be required, to repeal Article II Section 1 Clauses 2 and 4 and the 12th Amendment (i.e. eliminate electors entirely), and substitute a different method. Most of the work would be done by the states, in ratifying the amendment. [Addendum] It is true that it is constitutional to require a pledge of faithfulness (Ray v. Blair 343 U.S. 214). A bit over half of the states have laws requiring 'faithful voting', though the laws have not been enforced. Washington RCW 29A.56.320 may be typical, in that the law simply says "thou shall" with no mechanism for enforcement. Even with strict enforcement such as class X felony penalties, this cannot implement IRV. The number of electors is not proportional to population (there is the "plus 2 for senators" factor), and various other reasons why state-based electors cannot be morphed into an IRV-like system. | He has this phrased like it's the ability to decide which laws you follow, and that it's an ability being withheld from the general public (although I seriously doubt that at least the former is the case). This is yet another false claim made by "freemen" or those who claim "common law defences". Notice of Understanding has no legal meaning unless the context demands that it evidences a meeting of the minds for the purposes of contract formation. It is a well-settled principle of common law that in order to be bound by a contract, there must be an agreement. Put simply, I cannot bind someone simply by sending them a Notice unless it is a right conferred on me by some earlier statute or legislation, or legally binding agreement. I tried searching for a solid definition, but all I could find was people/organization's Notice of Understanding and Intent and Claim of Rights. The reason you've found nothing official about the terms Notice of Understanding and Intent and Claim of Rights is that there is nothing official or legal about those terms. They are ordinary terms with ordinary meaning being bastardised by deluded people who believe they can fine the government and refuse to be bound by the law of the land. Of course, none of this holds up. What is the purpose of declaring your Notice of Understanding and Intent and Claim of Rights? It might make you feel better, even though it has no legal, practical or other effect. | See Article VI of the Constitution: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. This seems to me that it pretty clearly establishes the Constitution as taking the place of any previous laws. In particular, Article XI of the Articles is in conflict with Article IV Section 3 of the Constitution ("New States may be admitted by the Congress into this Union"). The Constitution says that Congress's action is required to create a new state, and doesn't mention any exceptions. The Constitution's terms presumably take precedence. If Canada wanted to become a state, it would have to be admitted by Congress under Article IV Section 3. | Theoretically speaking, this is not theft. You are correct in that theft requires specific intent: to permanently deprive someone from the use and enjoyment of one of their lawful possessions. In real life, it is a matter of evidence of course. Saying you were only borrowing can be proven otherwise based on your actions. I should also mention that if you "borrow" something an there were obligations attached to that borroeing (e.g. "you can borrow it but you mustnt use it like this, or you must return it in a week") then failing to abide by those obligations can be sufficient to show intention to deprive. Furthermore "borrowing something" and consuming its entire usefulness for yourself counts as the permanent deprivation of the use of the possession from the owner. E.g. "borrowing" concert tickets and returning them after a concert (see s.6 Theft Act 1968) R v Lloyd, Bhuee & Ali [1985] QB 829 also tells us that the condition of something borrowed once returned may be indicative of whether there was an intention to permanently deprive someone of their rights to property. | The right belongs to the federal government because the Constitution says it does, in Article 1 (section 8, clause 3). This, and the other rights listed in that section, are known as enumerated rights - that is, somebody has explicitly listed them out. The section begins The Congress shall have power .. and each clause may be read separately with that phrase prepended. They should each all be read together with the final clause, which is To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. In the context of the Constitution, this enumeration means that Congress alone has the authority to make such laws. In particular, Congress is the only legislature with the right to make laws governing commerce between states and each other, states and Indian nations, or states and foreign nations. Other sections and their clauses enumerate rights explicitly reserved to the States and the People, and further clarify that any rights not enumerated are also reserved thusly. | Questions about "why a law is ..." are political questions not legal questions and you may get better traction on politics. However, I will address the legal issues and offer some speculation on the politics. The states named in the preamble to the Constitution (an Act of British Parliament) as original states were New South Wales, Victoria, Queensland, South Australia and Tasmania. Western Australia was not named at the time of the passing of the Act or Royal Assent because the people of that colony had not vet made their mind up. Legal Issues WA decided to join in a vote held on 31 December 1900 and Australia came into being on 1 January 1901. Therefore, even though not named as such, WA was an "original state". Since all 6 states in the Federation are "original states" the clauses have no practical effect at present. However, there have been a number of proposals to add new states, either by subdividing existing states or by granting statehood to the territories of Northern Territory and/or the Australian Capital Territory. If such were to come to pass, the clauses would have practical effect. In 1998, Norther Territorials rejected an offer of statehood that would have given them 3 senators as a state and 2 representatives based on population (currently they have 2 senators and 2 representatives). Clearly, they were not being given the same privileges as an "original state". In 2015 all Australian governments agreed in principle that the NT should become a state by 2018, however, as it is now 2017 and no action has been taken this seems unlikely. Political Issues Politics is complicated: just as much in the late 19th century as it is in the early 21st. Negotiations between the colonies were fraught and federation was by no means a certain outcome. New Zealand and Fiji dropped out early and each forged its own path to nationhood. However, by the late 1890s it was clear that the 5 eastern colonies would federate with or without Western Australia. It seems likely that this provision served multiple purposes including: putting pressure on WA to join at the outset - the deal they got as a "Johnny come lately" may not have been as good. protecting "white" Australia - the drafters of the Constitution were men of their times, that is to say: racist, misogynist bigots. Any non-original states were likely to be former British colonies in the Pacific or South-East Asia, this clause would allow the nation to reduce the influence these non-white states might have. | I suspect that US voting records would fall under Article 2(2)(a): Article 2 Material Scope ... This Regulation does not apply to the processing of personal data: (a) in the course of an activity which falls outside the scope of Union law; I doubt it would be possible to argue successfully that a foreign election is anything other than "an activity which falls outside the scope of Union law." Even the territorial scope could be questioned. This is set forth in the next article, on "territorial scope," the second item of which says: This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to: (a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or (b) the monitoring of their behaviour as far as their behaviour takes place within the Union. It is probably arguable whether processing absentee ballots from EU residents constitutes "offering services to data subjects in the Union," but in this case it's likely to be more difficult to resolve that question than to determine whether the activity falls outside the scope of Union law. |
Where should personal data be stored to comply with GDPR? We are a company based in Europe. We have personal data about our users worldwide (name, mail, phone number, company, title). And currently it is stored in Microsoft Azure. We don't know physically where they are. We would like to know if storing in Microsoft Azure complies with GDPR? Is there any other better choice? | According to azure.microsoft.com: All Azure services can be used in compliance with the GDPR. If customers using Azure services choose to transfer content containing personal data across borders, they will need to consider the legal requirements that apply to such transfers. Microsoft provides customers with services and resources to help them comply with GDPR requirements that may apply to their operations. And from harperjames.co.uk GDPR specifies that data must be stored within the EU or in a jurisdiction where a country outside the EU offers an adequate level of data protection. Currently, the European Commission has recognised Andorra, Argentina, Canada (commercial organisations), Faroe Islands, Guernsey, Israel, Isle of Man, Japan, Jersey, New Zealand, Switzerland and Uruguay as providing adequate protection. It has further adopted two adequacy decisions for transfers of personal data to the UK. You can check which country your data is stored in on the Microsoft Azure dashboard to make sure. | The GDPR doesn't generally distinguish public from non-public personal data. If you have a good reason to contact the professor, do send them an email. GDPR does not prevent this. If you're sending this email for “purely personal or household purposes”, then GDPR doesn't apply anyway. There are rules in the ePrivacy Directive against unsolicited emails, but these specifically relate to emails for direct marketing purposes. A company is not allowed to send out spam marketing, regardless of whether they obtained the email address from a public data source. Companies can send email marketing to their own existing customers, or to people who have given consent. Consent is defined in a fairly restrictive way (as a specific, informed, freely given, and unambiguous indication of the data subject's wishes), so that mere publication of an email address cannot be interpreted as consent to receive marketing from a particular company. | There are two relevant bodies of EU law to consider here. The GDPR covers processing of personal data. Personal data is any data where the data subject can be identified directly or indirectly. The ePrivacy directive is also relevant, and covers how you may access and store information on the user's device. Directives are not directly applicable law. Instead every member state translates the directive into national law. In the UK, ePrivacy is implemented by PECR. Is the data you collect personal data in the sense of the GDPR? Yes: that hashed unique device ID or a system-provided advertising ID likely is personal data, and any linked data would then be personal data as well. This is going to be the case in particular if you store user accounts on your server and can connect these bug reports to a user. Consider also whether the game save could include personal data, and whether the video clip could be analyzed to identify the data subject. Does this mean collecting this information in bug reports is forbidden? No, the GDPR doesn't forbid or allow anything outright. Instead, you should go through the compliance process. In a nutshell: determine the purpose of this processing, e.g. “fixing bugs” find an Art 6 legal basis for this purpose, e.g. “Art 6(1)(f) legitimate interest” or “Art 6(1)(a) consent” if the legal basis is legitimate interest, you must balance that interest against the data subject's interests determine whether your compliance requirements include creating/updating your Records of Processing, or whether you have to write a Data Protection Impact Assessment implement the processing in a manner that respects GDPR principles such as Transparency and Data Minimization if the legal basis is legitimate interest you must implement an opt-out solution if the legal basis is consent, you must request consent first in a manner that satisfies the Art 7 conditions for consent – and allow consent to be revoked easily prepare to satisfy data subject rights: information requirements per Art 13, usually done in the privacy policy right to access, rectification, erasure, and data portability right to object (opt-out) and to restrict processing be aware of your general requirements a data controller to process this data securely, e.g. use HTTPS connections to transmit bug reports, take steps to protect your own accounts (e.g. 2FA), and ensure you have a suitable contract with any data processors that act on your behalf, e.g. cloud providers or contractors I would question whether your bug reports really need to include a device ID. That isn't forbidden, it just complicates compliance a bit. And what about ePrivacy? The ePrivacy directive is known for its cookie consent requirements. But these consent requirements apply when accessing any information on the user's device, or when applying equivalent fingerprinting techniques. Your game save is not an issue because it is necessary for the game. But that device ID and other system information is more difficult. So what to do? Compliance isn't trivial, but certainly possible. You will likely process the bug reports under your legitimate interest, but might still have to collect consent for accessing a system ID due to ePrivacy. Such a screen might look like this: Oh no, the game crashed! Do you want to send a bug report to the developers? Your bug report will be protected as per our privacy policy (link). Your bug report will contain the following information: … Yes, collect system information and send bug report No, do not send bug report You could make an argument that a bug report can be sent in any case, and that you just need ePrivacy consent to collect useful system information. For example: Oh no, the game crashed! When sending a bug report to developers, do you want to include extra system information (link to details) that helps fixing the problem? In any case, your bug report will be protected as per our privacy policy (link). Your bug report will contain the following information: … Yes, send bug report with extra system information No, send anonymous report | Art 13 GDPR is about information to be provided when data is collected directly from the data subject. This information can be provided directly during/before collection. It is not generally necessary or useful to send the data subject an email with this information. Usually, a SaaS website will provide the information under Art 13 as part of their privacy policy, and link it in easy to find places. Also consider the EDPB guidelines on transparency, which suggests a layered approach: in addition to a detailed privacy policy, summarize key information directly when the data is collected, e.g. next to an input form. | The material scope of the GDPR (Article 2) is limited to the processing of personal data (including mere storage) by automated means or as part of a filing system. The question of whether your activity falls within this scope hinges on what you actually do with the data once you take possession of it. You have mentioned saving the contact information of people you have met at conferences, which could refer to simply retaining it for later use, or to the technological process of storing data in a computer. The former, if not done in any structured way (a filing system) would not fall within the scope of the GDPR. The latter, even if poorly executed, such as a photo stored on a business smartphone or a text document thrown onto your workstation's desktop, would always fall within scope as computerised data is processed "by automated means". When the contact information you receive identifies a specific person, as distinct from just a corporate switchboard number and company name for example, it is personal data. When you get that personal data from the person it identifies (data subject), and you're otherwise in scope, Article 13 is invoked, requiring you to provide a list of information, "at the time when personal data are obtained", unless "the data subject already has the information." This is known as the right to be informed. The requirements differ when personal data are not obtained directly from the data subject. I would argue it is unreasonable to be expected to provide the information to the data subject over a cup of coffee or in a quick business card exchange, but if you start entering it into a spreadsheet or your CRM, you need to provide the required information, which may be as simple as a follow-up email thanking them for their time and letting them know you'll keep their contact details on file, along with a link to your organisation's privacy policy, assuming it covers this use, or if not, a specific privacy notice. You will of course be required to comply with other requirements such as the principles of data minimisation and identify a lawful basis, maintain adequate security by implementing technical and organisational measures, hold contracts with any third parties who process personal data on your behalf, and have a process for upholding data subject rights and responding to requests to exercise them - among others - but you should already be doing that for your other processing activities unless exempt. Additional information Edits have been made as clarifications and questions were forthcoming. Email marketing You need to consider the applicable country's implementation of Directive 2002/58/EC as amended ("ePrivacy Directive"). For example, in the UK you could send such messages without consent to contacts at incorporated companies or public sector bodies, but would have required consent for sole traders, private individuals, or partners in an unincorporated partnership. In Ireland, you have an exemption to consent for existing customers who were offered the opportunity to opt out when their email address was collected, but must use the email address for marketing within 12 months. Each EU country will have a different implementation of the Directive. In the Netherlands, Article 17 of the Telecommunications Act implements Directive 2003/58/EC and thus provisions for direct marketing by email. Processing by automated means Processing by automated means refers to processing of personal data in electronic, rather than manual form. All electronic processing is within the material scope of the GDPR, while only manual processing that forms or is intended to form part of a filing system is. Recital 15: The protection of natural persons should apply to the processing of personal data by automated means, as well as to manual processing, if the personal data are contained or are intended to be contained in a filing system. Art. 4(2): ‘processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means ICO guidance What is personal data?: The GDPR covers the processing of personal data in two ways: personal data processed wholly or partly by automated means (that is, information in electronic form); and personal data processed in a non-automated manner which forms part of, or is intended to form part of, a ‘filing system’ (that is, manual information in a filing system). | Yes, this violates the GDPR if the user is in Europe. Data which is tied to a personal device can be tied to the person who owns it. From "What Is Personal Data" by the UK Information Commissioner's Office (ICO) (emphasis added): Personal data is information that relates to an identified or identifiable individual. What identifies an individual could be as simple as a name or a number or could include other identifiers such as an IP address or a cookie identifier, or other factors. If it is possible to identify an individual directly from the information you are processing, then that information may be personal data. If you cannot directly identify an individual from that information, then you need to consider whether the individual is still identifiable. You should take into account the information you are processing together with all the means reasonably likely to be used by either you or any other person to identify that individual. The bit about "all means reasonably likely" in the last bullet includes the kind of de-anonymisation tactics described in the NYT article. There are 6 lawful bases for data processing in the GDPR, and all processing must fall under at least one of them. (a) Consent: the individual has given clear consent for you to process their personal data for a specific purpose. (b) Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract. (c) Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations). (d) Vital interests: the processing is necessary to protect someone’s life. (e) Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law. (f) Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party, unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests. (This cannot apply if you are a public authority processing data to perform your official tasks.) Selling data isn't covered by any of the others, so consent must be obtained. Permission must be clear and positive, and you cannot predicate delivery of a service on the processing of data that isn't necessary for that service. So for instance you cannot say "You can use this service as long as we are allowed to collect and sell your data" because selling the data isn't necessary to the provision of the service. From "Consent" by the ICO: Consent requires a positive opt-in. Don’t use pre-ticked boxes or any other method of default consent. Explicit consent requires a very clear and specific statement of consent. Keep your consent requests separate from other terms and conditions. Be specific and ‘granular’ so that you get separate consent for separate things. Vague or blanket consent is not enough. [...] Avoid making consent to processing a precondition of a service. This applies to any processing of data about individuals within the EU, so just being an American company doesn't get you a free pass to ignore the GDPR if your app gets used by Europeans. The "Legitimate interests" basis is more problematic, in that the company collecting the data has to conduct a vague "balancing test" to determine if this basis applies. For direct marketing the ICO has written this, which says that direct marketing may be a legitimate interest, especially if you can show that the user has expressed interest in such adverts. For instance a location service which promises to tell you about nearby special offers would fall into this category. Against this, the impact on the user's privacy has to be considered, and location data is "special category data" because it can reveal medical information (e.g. hospital attendance) or religious affiliation (e.g. which church you go to). So unless the relationship between the recorded location data and the service is very direct its not going to pass the balancing test. The company would also need to distinguish between knowing the current location and keeping a record of historical locations; the two need separate justification. And of course nothing about this covers the sale of the data; this is considering a company which sells advertising space in it's app, not one that sells the data itself. | Per Art 3(2), GDPR only applies to non-European companies when their processing activities relate to the offering of goods or services to people in Europe, or when the processing activities relate to monitoring people in Europe. However, the word “offer” of this targeting criterion requires some level of intent. It is not enough for GDPR to apply that they're marketing to someone who happens to be in Europe, but GDPR would apply if they are intentionally marketing to people who are in Europe. I don't know what they are marketing, so I don't know if that would be the case here. Even if GDPR were to apply, it would not be the most appropriate law. Yes, there's the GDPR right to erasure, which applies under some conditions (though there's a pretty absolute right to opt-out from marketing). The EU's ePrivacy Directive provides more specific rules though, in particular that every such marketing email must offer a way to unsubscribe. Other countries have comparable anti-spam laws, potentially also the home country for this online service. | GDPR does not cease to apply because of the location of data storage. It applies based on the location of the data processor, data controller, and data subject. If you are in the EU, you are a data subject covered by GDPR. It does not matter where the data are stored. Note that you are asked to confirm that you're aware that US laws may be less protective, but you're not asked to acknowledge that anything about the arrangement causes the "laws of your country/region" not to apply. The company also does not seem to be claiming that they don't apply, although it seems that they want you to think so, and it's not clear whether they think so. You are correct that GDPR doesn't allow its protections to be waived. A data subject may always consent to certain processing, and some processing may be performed without consent, but it's not possible to waive the right to withhold consent for processing that does require it. |
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