Showing posts with label France. Show all posts
Showing posts with label France. Show all posts

Friday, February 12, 2021

Comedy of Roy Wood Jr. surfaces under-appreciated contributions of real historical black figures

Roy Wood Jr.
(photo by Lisa Gansky CC BY-SA 2.0)

I'm a big fan of Roy Wood Jr., and every installment of his "CP Time" bit on The Daily Show is an instant classic.  They're always funny, but often, also, are educational.

Last year during African American History Month, Wood talked about little recognized black explorers, such as Matthew Henson, an American who journeyed to the North Pole, and Abubakari II, a Malian royal said to have set sail for the New World more than a century before Columbus.

This year, on Wednesday night, he highlighted African American spies who contributed importantly in the history of war and civil rights, including Josephine Baker and Harriet Tubman.

Baker on a German poster in 1929
The piece reminded me of two memorable experiences learning about these women.  I first learned about Josephine Baker, an American-born French resistance agent in World War II, only recently, in a seemingly unlikely place, a 2019 exhibit at the Musée d'Orsay titled Black Models: from Géricault to Matisse.  In the brilliant, wide-ranging exhibit on the intersection of black culture and French history, Baker was featured among entertainers whose work was fused into a new French cultural identity in the 20th century.

Tubman NHP in 2018 (photo by RJ Peltz-Steele CC BY-SA 4.0)
In 2018, my family first visited the Harriet Tubman Underground Railroad National Historical Park, which opened in Maryland in 2013.  Situated amid the Blackwater National Wildlife Refuge on the eastern shore of the Chesapeake Bay, the museum is not on the beaten path, but it's worth every extra mile to visit.  Impassionedly curated, the exhibits comprise an encyclopedic history of civil rights of which I knew precious little, even having gone to grade school in Maryland and being schooled in constitutional law.  Tubman's vital contributions as a Union spy, as well as the real story of her military leadership, portrayed by an eponymous 2019 film, is featured among narratives every American should know about the future face of our $20 note.

Wednesday, October 9, 2019

Info reg round-up: French feud, global injunction, foreign discovery, and literal grains of paradise

I've lately been swamped by developments in global information regulation.  Here's a round-up of highlights with links to read more.

Google-France feud.  Fresh on the heels of Google v. CNIL (read more), tensions are heating up again between Google and France, as Google refuses to play ball with France's new copyright law.  The 2019 EU Directive on Copyright in the Digital Single Market aimed, inter alia, to protect publishers from the scraping of their news product for aggregators' clips and snippets without compensation.  France was the first country, and only so far, to transpose the directive's article 15 (né draft article 11) into national law.  Effective this month, the French law would compel an aggregator such as Google to pay news publishers for the content that appears in Google search results.  How much money Google makes from Google News is disputed, but it's a lot.  Google contends that news providers are well compensated by traffic driven to their websites.  The news industry doesn't feel that way and blames aggregators for killing the business model of news, public interest journalism along with it.  Now Google has said that search results in France will exclude content that would require payment under the new copyright law.  The News Media Alliance, a U.S. industry association, has called Google's move "extortion."

Eva Glawischnig-Piesczek, Austrian Green
EU: Global injunction of one country's "defamation."  The European Union (EU) continues to amp up internet service provider (ISP) accountability.  A chamber of the Court of Justice of the EU (CJEU) ruled that European law—including EU information market directive, the Treaty on the Functioning of the EU, and the freedom of expression—does not preclude a member state from issuing a global injunction to take down unlawful content.

The facts reveal the problematic scope of the state power implicated, as the case arose from a Facebook post disparaging, e.g., "traitor," an Austrian politician.  The disparagement was regarded as defamation in the Austrian courts, but would be protected as core political commentary or hyperbolic opinion in the United States and many other countries.  The prospect of a state order with global reach was raised by the recent CJEU decision in Google v. CNILSlate's take took no prisoners: "In so ruling, the court demonstrated a shocking ignorance of the technology involved and set the stage for the most censor-prone country to set global speech rules."

The case is Glawischnig-Piesczek v. Facebook Ireland Ltd., No. C-18/18 (Oct. 3, 2019).

US: Extraterritorial discovery.  The Second Circuit meanwhile published an opinion that pushes outward against the territorial bounds of U.S. law.  The court ruled that statutory civil procedure under 28 U.S.C. § 1782 may reach records held outside the United States and is co-extensive in scope with the maximum long-arm personal jurisdiction of constitutional due process.

The case arose from Banco Santander's acquisition of Banco Popular Español (BPE) after a criminal investigation and government-forced sale of the latter.  Mexican nationals and investors opposing the acquisition sought discovery in the U.S. District Court in New York against Santander and its New York-based affiliate, Santander Investment Securities (SIS), under § 1782.  The law compels discovery against a person or legal entity that "resides or is found" in the U.S. jurisdiction.

Santander New York (© Google Earth)
The court rejected Santander's contention, supported by academic opinion, that the language could not reach a mere "sojourner" in the jurisdiction.  The court furthermore held that the presumption against extraterritoriality of statutory interpretation does not apply to a jurisdictional statute, and even if it did, the design of the Federal Rules of Civil Procedure, with which the statute fits, plainly and expressly encompasses extraterritorial reach.

However, the court held, only SIS, not Santander, was within the reach of long-arm personal jurisdiction.  SIS was subject to general jurisdiction, but was not meaningfully involved in the BPE acquisition.  Santander had hired New York consultants to contemplate an acquisition of BPE, which could subject Santander to specific jurisdiction, but that was an entirely different transaction, prior to the government-forced sale of BPE.

Though the case deals with conventional discovery, it has important implications for transnational business in the age of e-discovery.  Expansive U.S. discovery practice is incompatible with more restrictive norms in much of the world, Europe included.  Section 1782 is a potentially powerful tool for savvy litigants to get their hands on opponents' materials when foreign courts won't allow it.  That's bound to rub transnational business and foreign regulators the wrong way.

The case is In re Del Valle Ruiz, No. 18-3226 (2d Cir. Oct. 7, 2019).  Hat tip to New York attorney Ken Rashbaum, at Barton LLP, who telephonically visited my Comparative Law class and referenced the case, and will be writing more about it soon. 

Gin labeling and grains of paradise.  OK, this is more about misinformation than information, and it is globally important.  Law and gin, two great international cultural forces and loves of my life, come together in a recently filed lawsuit over grains of paradise.  You can't make up stuff this dry yet thirst-quenching.

Bombay Sapphire Bottle (by @Justintoxicate)
In a class-action complaint removed to the U.S. Southern District of Florida in mid-September, plaintiffs accuse Bacardi USA, maker of Bombay Sapphire Gin, and Winn-Dixie supermarkets of selling "adulterated" product, because Bombay gin contains a botanical literally called "grains of paradise."  According to the complaint, grains of paradise, scientific name Aframomum melegueta, "is an herbaceous perennial plant native to swampy habitats along the West African coast."  Turns out, it's illegal under Florida law, section 562.455.

The ABA Journal explained: "The 150-year-old Florida law was passed when people thought grains of paradise was a poisonous drug. The misconception likely arose when home distillers added other, dangerous ingredients to gin to 'mask the awful distilling and make more money,' according to Olivier Ward, a British gin expert and consultant who spoke with the Miami Herald."  Bacardi is not hiding anything and maintains that its products comply with all health and safety regulations.  The complaint itself states that grains of paradise are listed in the ingredients and actually etched on the gin's blue bottle.

The case is Marrache v. Bacardi, U.S.A., Inc., No. 1:19-cv-23856 (S.D. Fla. docketed Sept. 16, 2019).

Saturday, September 28, 2019

EU court rules for Google, narrows French 'right to be forgotten' order to Europe

In the latest battle of the feud between Google and the French data protection authority (CNIL), the Court of Justice of the European Union ruled that the CNIL's "right to be forgotten" order should be limited to internet users in Europe.  However, the court did not rule out the possibility of a worldwide order if the facts warrant.

The court wrote:

[T]he right to the protection of personal data is not an absolute right, but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality....  Furthermore, the balance between the right to privacy and the protection of personal data, on the one hand, and the freedom of information of internet users, on the other, is likely to vary significantly around the world. 

While the EU legislature has, in Article 17(3)(a) of Regulation 2016/679 [GDPR], struck a balance between that right and that freedom so far as the Union is concerned ... it must be found that, by contrast, it has not, to date, struck such a balance as regards the scope of a de-referencing outside the Union.

"Proportionality" is a core principle of EU human rights law when regulation collides with individual rights, or, as here, state power is implicated to favor one individual's rights over those of others.  The same principle also constrains supra-national authority over member states.

The case arose from a CNIL fine of Google.  The French authority had ordered Google to de-list search results to protect certain individuals' privacy under the "right to be forgotten," or "right to erasure," when those individuals were searched by name.  "De-listing" or "de-referencing" search results is the front line of right-to-erasure court challenges today, though the specter of erasure orders that reach content providers directly looms on the horizon.

Google complied with the CNIL order only for European domains, such as "google.fr" for France, and not across Google domains worldwide.  Google employs geo-blocking to prevent European users from subverting de-listing simply by searching at "google.com" (United States) or "google.com.br" (Brazil).  Determined users still can beat geo-blocking with sly technocraft, so CNIL was dissatisfied with the efficacy of Google's solution.  Undoubtedly, a dispute will arise yet in which the CNIL or another European data protection authority tests its might with a more persuasive case for global de-listing.

The case is Google, LLC v. Commission Nationale de L’informatique et des Libertés (CNIL), No. C-507/17 (E.C.J.), Sept. 24, 2019.  Several free speech and digital rights NGOs intervened on behalf of Google, including Article 19, the Internet Freedom Foundation, the Reporters Committee for Freedom of the Press, and the Wikimedia Foundation, as well as Microsoft Corp.  The case arose initially under the 1995 EU Data Protection Directive, but carries over to the new regime of the General Data Protection Regulation (GDPR).