Learn more about Peltz-Steele v. UMass Faculty Federation at Court Listener (complaint) and the Liberty Justice Center. The case is now on appeal in the First Circuit as no. 22-1466 (PACER paywall). Please direct media inquiries to Kristen Williamson.
Showing posts with label France. Show all posts
Showing posts with label France. Show all posts

Wednesday, July 6, 2022

Belgian-waffle makers battle over whose doughy goodness won pride of place on Oprah's list

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Two Massachusetts business are embroiled in a mouth-watering lawsuit over waffles and Oprah.

Oprah's 2021 "favorite things" featured "Eastern Standard Provisions Gourmet Liège Belgian Waffle Gift Box." Yum.

Eastern Standard Provisions is based in Waltham, Mass., and lists its "Classic Liège Belgian Waffles" for sale online. Here's the pitch:

Our artisanal Classic Liège Belgian Waffles are crafted with real butter and pearl sugar imported from Belgium for a light, sweet crunch. Our Classic Liège Belgian Waffles are different than other waffles you may be used to. Most waffles are made with batter, but our Classic Liège Belgian Waffles are made from dough delivering a soft, brioche-like texture and a one-of-a-kind waffle experience.

This is not Eastern Standard's Oprah debut. Its "artisanal soft pretzels" made the grade in 2019.

But wait. Based in Attleboro, Mass., the Burgundian gourmet street-food brassiere claims in a lawsuit (via WCVB) that Oprah picked Burgundian waffles for the list, because Eastern Standard ripped off the Burgundian recipe it had learned under a non-disclosure agreement when the two explored a co-branding venture.

According to the lawsuit, Burgundian founder Shane Matlock learned how to make the Liège waffles while serving in the U.S. Army, when, for three of 15 years, he was stationed on the France-Belgium border, and, the Burgundian website says, he premiered the waffles in Providence, Rhode Island (my home state, near Attleboro) in 2017.

All I know for sure is that I now have a craving for waffles.

The case is The Burgundian LLC v. Hawthorne Food Co. (Mass. Super. Ct. Suffolk Dep't Bus. Litig. Sess. filed Feb. 3, 2022).  The plaintiff alleges, inter alia, breach of contract, violation of state trade secret law, passing off, false advertising, and unfair trade practices.

Monday, June 27, 2022

Rwanda preens in Commonwealth spotlight, while genocide trauma, Congo conflict smolder just offstage

June 22, KIGALI—The usually biennial Commonwealth Heads of Government Meeting, "CHOGM 2022," postponed from 2020, is under way in Kigali, Rwanda, marking both a sign of pandemic recovery and a possible Commonwealth pivot to reemphasize development.

The Commonwealth of Nations is an association of 54 states, ranging from island nations such as Dominica and Nauru to larger nations such as Australia, Canada, India, and South Africa. Constitutional origins in the British Empire, and, thus, shared history, language, and legal systems tie together almost all of the Commonwealth member states.

Notionally, the Commonwealth dates to the late 19th century; it was formalized in the early 20th century. The Commonwealth really took off functionally to fill the governance gaps left by decolonization and World War II in the mid-20th century. With the Crown as titular head, the Commonwealth mission today emphasizes rule of law, democratic governance, and human rights. Historical ambitions in the vein of common defense were largely displaced by Cold War realignments and the rise in power of the United States and NATO.

To sport fans, the Commonwealth might be best known for the quadrennial Commonwealth Games, to be hosted this summer by Birmingham, England. In contrast with the Olympics, the Games highlight sports that the United States has weakly or not embraced, such as cricket, netball, and rugby.

Commonwealth participation is not quite a multilateral treaty obligation, because membership is voluntary and terminable at will. Members can be suspended, but not expelled. In Africa, members such as Nigeria and Zimbabwe have had off and on-again relationships with the Commonwealth with waning and waxing commitments to human rights. Members such as Gambia and Maldives have left and rejoined the Commonwealth.

All photos by RJ Peltz-Steele CC BY-NC-SA 4.0
Rwanda's membership in the Commonwealth is an unusual case, adding to the significance of CHOGM 2022 taking place here. The precarious Kingdom of Rwanda was forcibly superseded by German colonization in 1884, then passed into Belgian hands from World War I until 1959. Revolution led to 1962 independence and cycles of tumult. The infamous 1994 Rwandan genocide, in which up to one million ethnic Tutsi were brutally slaughtered in about 100 days, was not a singular horror, rather a climactic installment in decades of violence, as power shifted among competing factions.

Rwanda's 2009 accession to the Commonwealth, the culmination of a six-year campaign, was therefore controversial. Varied factors motivated Rwanda to apply, despite its lack of constitutional ties to the British Empire. The Francophone country stood to gain global prestige and to strengthen foreign economic ties, both intercontinentally and with Anglophone neighbors in East Africa, as well as social development opportunities in youth, education, and sport. 

Rwanda also had a sour relationship with France over French support for the Hutu government responsible for the genocide. France played an active role in Rwanda after independence, politically and militarily, effectively treating the country as its own former colony, for better or worse. Rwandan membership in the Commonwealth therefore represented a deliberate rejection of Francophone heritage. In 2021, French President Emmanuel Macron apologized for France's role in precipitating and failing to stop the genocide, as well as subsequent resistance to investigation. Rwandan President Paul Kagame accepted the apology.

Both intergovernmental and nongovernmental human rights groups, including the Commonwealth's own investigators, found Rwanda wanting in the 20-aughts, its record on human rights still not up to snuff. They warned that Rwandan membership would degrade Commonwealth standards. Commonwealth purists objected to Rwandan membership for the country's lack of British colonial history. Rwanda looked to the example of Mozambique, a former Portuguese colony and Lusophone nation that had been admitted in 1995. In the 1990s and 20-aughts, Commonwealth members disagreed internally over whether to retain the requirement of "historic ties" to Britain. Mozambique had made a strong case upon its valuable support for Commonwealth opposition to South African apartheid. Expansionists prevailed again in 2009, and Rwanda won its membership.

In Africa, CHOGM, which has met since 1971 in Singapore, has been hosted by Zambia (1979), Zimbabwe (1991), South Africa (1999), Nigeria (2003), and Uganda (2007). Queen Elizabeth attended in Uganda, her first visit there since 1954, when Queen Elizabeth National Park took her name. The Prince of Wales is in Kigali now. So bringing CHOGM 2020/2022 to ostensibly Francophone Rwanda is a noteworthy achievement for the Kagame government.

But human rights groups have never abated in their discontent. Especially the recent abduction and imprisonment in Rwanda of "Hotel Rwanda" hero and human rights activist Paul Rusesabagina casts a shadow over CHOGM 2022 that the government would like delegates to ignore. I have written previously about the Rusesabagina matter and a related pending lawsuit in the United States by the Rusesabagina family.

My family and I arrived in Kigali last weekend to find a rush-hour traffic jam aggravated by road closures for CHOGM 2022. The formal CHOGM meeting of dignitaries happens Friday and Saturday, but delegates are here all week to do the real diplomatic work. The black, brown, and white faces of the Commonwealth circulate in the CBD, and plastic-encased CHOGM credentials dangle from lanyards. Heavily armed police and private security monitor every corner; the last thing Rwanda needs is a black-eye security breach. The CBD is plastered with posters in the vein of "Visit Rwanda" and "Invest in Rwanda," bearing images of the country's legendarily hills, green terrain, and exquisite fauna.

Last night I walked through a night-market showcase of life and culture in Rwanda (and in smaller sections, Uganda and Mozambique), from agricultural supplies and textiles to food and dance. Smiling representatives eagerly promoted their wares.  I succumbed to the hype and bought some green—literally and figuratively—cosmetic products for my wife, as well as some Rwandan coffee. (I'd already bought Rwanda and Musanze FC kits for myself.) I took a selfie in front of gigantic letters spelling "KIGALI."


Food stalls offered delights from East Africa, including Rwanda-based restauranteurs in foreign cuisines, such as Indian and Ivorian. An aside: The highlight of the showcase for me was Kigali-based "Now Now Rolex," which makes gourmet ethnic variations of the classic Ugandan street food. A rolex is an egg omelette rolled in chapati, usually with other ingredients, such as diced tomatoes and onions, added to the taste of the buyer. Typically for no more than a dollar or two, the wrap is cooked quickly in a hot skillet, crepe style, at a roadside cart or stall. The name "rolex" derives from "rolled eggs," but for its quick preparation also plays cheekily with the name of the watch brand. Now Now's gourmet options incorporate ingredients for variations such as French, Italian, and Mexican, still just $2 a pop; I had "the Rwandan," featuring minced beef. Oh, and a delectable vodka mule to wash it down.

Notwithstanding the festive atmosphere, the genocide is never far from mind in Rwanda. CHOGM 2022 takes place against the backdrop of Kwibuka 28, a three-month remembrance of the genocide sponsored by Rwanda and the African Union. With the theme "Remember-Unite-Renew," Kwibuka is recognized with its own gigantic letters at the Kigali Genocide Memorial. Newscasters on Rwandan TV (English-language for me) and videos at the cultural showcase readily recognize the genocide, but reiterate a forward-looking "never again" message. They refrain from revisiting gruesome atrocities and scarcely acknowledge the ongoing public health problem of post-traumatic stress.

Personally I've been skeptical of Rwanda's reconciliation with the genocide and purported triumph over ethnic conflict. The mantra one hears throughout Rwanda today is that "we are all Rwandan now," meaning ethnic differentiation is a thing of the past. But how does a people turn that page so quickly, even in the span of one generation? Nothing I learned about the genocide at the Kigali Memorial gave me solace. The way that nationalistic leaders and opportunistic, wanna-be warlords manipulated information and exploited mass media—sound familiar?—to turn ordinary people into torturers and murderers of their friends and neighbors; decades of violence and 100 days of carnage to rival the Holocaust; and then it all just evaporated, never to happen again? I noted that the impressive and truth-rendering Kigali Genocide Memorial, which houses the remains of a quarter million people and where Prince Charles laid a wreath today, was constructed in the 20-aughts by a UK NGO, not by the Rwandan government.

To President Kagame's credit, Rwanda looks and feels peaceful. I found only warm and welcoming people traveling in the country's lush northwest. I walked around Kigali day and night with a comfort level I've had in no other African capital (though I am not recommending being carefree here; I take precautions). Kagame brokered Commonwealth membership and landed CHOGM.

Kigali

At the same time, Kagame has been president since 2000. He was a leader of the domestic military force that ultimately quelled the genocide, and many say he has been running the country de facto since then. For perspective, that's since Bill Clinton was President of the United States.

In a recent book, journalist Michela Wrong unflinchingly painted Kagame as a wolf in sheep's clothing.  (I've read about the book, but not read the book.) She charged him with political assassination of a rival and dictatorial repression of dissent. According to descriptions of Wrong's portrayal, a "sinister" and "chilling" head of state lurks behind the rendering of peace and promise that the West is so eager to embrace.

"Hotel Rwanda" today: the Hotel des Mille Collines

Wrong's take squares with details alleged in the abduction of Rusesabagina. Assiduously avoiding return to Rwanda, Rusesabagina persistently criticized the Kagame regime and alleged failure to reconcile meaningfully with the genocide. The Rusesabagina family lawsuit alleged that a covert Rwandan intelligence officer lured Rusesabagina away from his Texas residence for a purported speaking engagement in Burundi, then orchestrated his abduction to Kigali from a Dubai layover. Rusesabagina's subsequent criminal prosecution in Rwanda on terrorism charges had every hallmark of a show trial. The Kagame administration denies involvement in the abduction and any impropriety in the prosecution.

I wonder whether Rwanda's enthusiastic embrace of Kwibuka, the annual genocide commemoration, represents genuine engagement with reconciliation or mere lip service to human rights platitudes that gratify western leaders and smooth the pathways of foreign investment. I haven't seen a single mention in Rwandan media of demands by human rights groups that Rusesabagina be released. Such as I've seen, discussion of human rights in Rwanda, besides recognition of the genocide as a historical event and cause for unified patriotism going forward, has been limited to the promotion of innovations in public health and sustainable agriculture.

Meanwhile, violence and unrest in the neighboring Democratic Republic of the Congo casts another unwanted shadow over CHOGM 2022. Like Rwanda, the DRC (formerly Zaire) has convulsed with violence since its Belgian decolonization in the 1960s. Millions have died just since the 1990s. Since 2015, the eastern border region, which shares Lake Kivu and the Virunga mountain range with Rwanda, has been the site of a bloody confrontation, costing thousands of civilian lives. Supported by UN peacekeepers, the Congolese army has been locked in conflict with "M23" revolutionaries. Making matters worse, Kinshasa accuses Kigali of funding M23 in a bid to expand Rwandan territory. Rwanda denies involvement.

I know next to nothing about the political situation in the DRC, so my perceptions are informed only by experience on the Rwandan side of the border.  The establishment of a Tutsi government after the genocide propelled Congolese Tutsi into Rwanda, and nearly 2 million Hutu left Rwanda for the DRC. More than once in the Lake Kivu region, I met Congo-born 20-somethings—the average age in Rwanda is a remarkable 19—whose Rwandan families relocated there after the genocide, only to return later to Rwanda as refugees of war in the DRC. Though born to Rwandan families, the persons I met identified as Congolese and lamented that they could not go home.

I came close to the DRC border twice. The first time, in the Virungas, I had an escort of four soldiers with automatic weapons. Armed escorts are common in East African parks to protect tourists from wild animals (ideally to scare them with gunfire, not to shoot them). But this was more than animal deterrence. The soldiers acknowledged that Rwandan officials are worried about incursion from the DRC, especially while CHOGM is ongoing in Kigali.  I was encouraged not to linger at the summit of Mount Bisoke, whose crater lake straddles the border.  (I was not allowed to photograph soldiers or border posts.)

The Virunga volcanic range sits at the junction of the DRC, Rwanda, and Uganda.

I came close to the border as well in the lakeside town of Gisenyi. A Rwandan official invited me closer to the line than I cared to be. I could see where queues, asphalt road, and orderly buildings on the Rwandan side gave way to dirt road, a shantytown, and a colorful, chaotic, and predominantly pedestrian marketplace on the Congolese side.

As of this writing, CHOGM 2022 is progressing without incident, and Rwanda is availing of the opportunity to put its best foot forward in the world. Surely for the sake of everyone I've met here, I hope that Rwandan participation in the community of nations affords, for every Rwandan who wants it, opportunity for more than subsistence living.

However, for that to happen, Commonwealth delegates will have to see past colorful souvenirs, product pitches, and reconciliation rhetoric. Rwanda needs a plan for infrastructure, educational opportunity, and an improved standard of living for all its people. Rwanda does not need recolonization through the finance sector.

For an indulgent exploration of the contemporary aftermath of the Rwandan genocide and the precarious relationship with the DRC, I highly recommend the television series Black Earth Rising (2018), a co-production of Netflix and BBC Two, written and directed by Hugo Blick and starring Michaela Coel and John Goodman.  The story is fictional, but the riveting expression of social and political tensions is spot on. HT @ Jason Peura.

For a moving documentary on the plight of the gorillas in the Virunga mountains amid the chaos of war in the DRC, see the Oscar-nominated Virunga (2014), also available on Netflix.

Tuesday, February 1, 2022

As America, France share Enlightenment roots, why have worker rights so diverged? Or have they?

Thomas D. Aaron Wazlavek, Esq. has published an article in comparative labor law: The Pond Separates Cultures but Not Values: A Comparative Look at the French Codification of Right to Withdrawal of Labor and the American Concept of At-Will Employment.  The article appears in the Florida Journal of International Law at the University of Florida Levin College of Law.  Here is the abstract:

The differences and similarities between the United States common law concept of “right to work” and the modern development in France of the right to withdraw labor following the “Yellow Vest” movement in 2018 demonstrate a parallel diminution of workers’ rights. These changes are motivated by the same values inherent within capitalism that are superimposed through the law. This Article analyzes the social and legal contexts in both countries that demonstrate that the superimposition of these values through law is a continuing modern western trend. The key difference is that while the French model is designed to decrease the pressure for strike actions by workers, it also serves as a protection to workers as compared with the American model which exists as a tool to remove workplace protections by substantially altering the terms and conditions of employment. Further, this Article demonstrates that these concepts are both divergent and convergent in terms of core shared values and the peripheral aspect of laws setting cultural norms. This Article then concludes through comparative analysis that while the French right to withdraw labor is a product of legislative supremacy, and the American view within the common law is that at-will employment is the standard, the French model is a product of generations of social negotiations. The American model is a product of the easily swayed influences within the common law that allow a new legal theory with little to no precedential value at the time of its proposal to be adopted in sweeping fashion with very little civil discourse.

An attorney living and working in Rhode Island, Wazlavek (blog, LinkedIn, Twitter) presently serves as a contract coordinator for Teamsters Local 251.  It's not uncommon to see him on a Rhode Island street corner alongside sign-wielding workers.  He had already a wealth of experience in the labor movement before he went to law school.  He taught me a great deal about organized labor—its value when it works the way it's supposed to—and I was able to contribute torts and comparatism to his impressive repertoire.

The Pond started as a paper in Comparative Law, co-taught by an embedded librarian, the esteemed Dean Peltz-Steele, and me and tracks one of many remarkable parallels in the cultural evolution of the United States and the French Republic.  Just yesterday I read Rachel Donadio's fascinating treatment of secularism, or laïcité, in The Atlantic.  Observing the shared roots of the French principle with American anti-establishment doctrine, Donadio observed:

The histories of few countries are as deeply intertwined as those of France and the United States. Both nations are products of the Enlightenment, and each sees itself as a beacon among nations. Both embody a clear separation of Church and state. In the United States, the separation is defined by the establishment clause of the First Amendment, which prohibits the government from making any law "respecting an establishment of religion" or obstructing the free exercise of religion. The First Amendment was inspired by the earlier Virginia Statute of Religious Freedom, adopted in 1786, the work of Thomas Jefferson. Jefferson was ambassador to France when the French Revolution began, and the Marquis de Lafayette consulted him when drafting the revolutionary Declaration of the Rights of Man and Citizen, passed in 1789. Article 10 of that document states, "No one may be disquieted for his opinions, even religious ones, provided that their manifestation does not trouble the public order."

A shared legacy on labor regulation might not be traced so easily to the 18th century, but I would contend that American and French thinking about work and life is plenty in common.  Wazlavek maps that common cultural territory, and the article examines the social and economic forces that have prompted divergence, largely to the hazard of the American worker, and yet some recent convergence that prompted the Yellow Vest movement.

The article is Thomas D. Aaron Wazlavek, The Pond Separates Cultures But Not Values: A Comparative Look at the French Codification of Right to Withdrawal of Labor and the American Concept of At-Will Employment, 33 Fla. J. Int'l L. 75 (2021).

[UPDATE, Feb. 3, 2022:] Only two days after posting this item, I happened upon this compelling article as well: Stéphanie Hennette-Vauchez, Religious Neutrality, Laïcité and Colorblindness: A Comparative Analysis, 42 Cardozo L. Rev. 539 (2021).

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).