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Laurence Simons Newsletter April 2015

Posted by: Laurence Simons 31/03/15

Lawyers under fire: “It’s better to be a victim than a s***” comment landed a defence lawyer in hot water

Michael Magarian QC found himself in a spot of bother during his closing statement at a recent trial. While defending five men on trial for child-sex offences, Mr Magarian said “it’s better to be a victim than a slag” when referring to six children who were sexually abused by the men on trial. Mr Magarian followed this foolhardy statement with “Once you are a victim who has been groomed you no longer have to take any responsibility for anything that you did”. I can hear the gasps in your voice.

As expected, charities and organisations that look after abuse victims responded fiercely to Mr Magarian’s comments, with the NSPCC commenting “They show a total lack of understanding of how children are groomed. Any suggestion that they may be blamed for the horrendous things that happened are totally wrong.”

Social media exploded with reaction: ‘Misogynistic scum’ and ‘absolute disgrace of a man’ were two of the nicer comments directed at Mr Magarian and his team; one of whom commented that the victims “might be enjoying all the attention from police and social services”.

He preceded his infamous comment with other soundbites that were close to the bone, claiming that the victims were “brainwashed by social workers”, the trial being a “witch-hunt” and a “police-manufactured case”.  One would have thought that having a more sympathetic tone to his message would have been more appropriate.

Irish Emergency Legislation Avoids Ecstatic Boost To St Patrick’s Day

Three Irish judges inadvertently legalised ecstasy just a week before St Patrick’s Day. Not the punch line of an off-colour joke but a true event, this bizarre incident required emergency legislation to fix. Despite Ireland’s fondness for craic (having fun), the timing was of course coincidental and the powers that be had no intention of trying to make St Patrick’s Day 2015 a different type of celebration by legalising the well-known party drug. The story erupted unexpectedly and embroiled the Irish government in embarrassment when a Court of Appeal decision resulted in a wide range of formerly banned drugs becoming legal for a day due to a legislative oversight.

So how exactly did ecstasy become legal for a day? In 2012, Stanislav Bederev was charged with possession of methylethcathinone in Ireland. This was a on a ‘controlled’ drugs list and so he was facing criminal sanctions. As a result, his legal counsel sought a creative way to avoid the charges, which may have taken a certain degree of intoxication to fully comprehend.

Mr Bederev’s defence argued that the parts of the Misuse of Drugs Act 1977 that made the substance illegal were unconstitutional and, therefore, void. They said that the particular part that banned these substances were entered into through a ministerial order of the government without the requisite consultation with the Oireachtas, the Irish legislature.

The three judges in the Court of Appeal unanimously agreed stating that the law would place the entire authority to decide on what was and what was not a banned substance with the government, when a list of this sort should only have been made into law once the drugs in question had been debated by the Oireachtas.

As a result, the list was declared void with the result being that the only law stating that drugs such as ecstasy, ketamine, magic mushrooms and crystal meth were illegal was now invalid. This meant that until a new constitution-friendly ban on these drugs could be passed by the Oireachtas, the drugs would remain legal.

In order for replacement laws to be passed, emergency legislation required approval in the Dail, the lower house of Ireland’s Parliament, before going to the upper chamber, the Seanad. Due to the nature of the debates and the length of time involved to pass a valid decision, the drugs on this invalid list were legal in the Republic of Ireland for the entirety of Wednesday 11th March 2015.

So while some countries debate the legality of marijuana or relegate other drugs to a lower class rating with lower punishments, Ireland recently became something of an accidental pioneer by legalising a host of drugs without even realising that it had done so.

When Politics And Law Collide: Hillary Clinton’s Email Controversy

Most of us are wary of emails from unusual addresses making fantastic claims. Generally we do not want to invest in an “amazing foreign business venture”, nor do we want to try a pseudo-legal muscle supplement and, no, we do not believe the before and after pictures are the same person. Worse still are those purporting to be from official sources bearing a rather unofficial email address. But if you ever marked as spam an email from signed off by ‘Hillary’ then you may have genuinely missed out on some important information because that innocuous looking email address was authentically from one of America’s most powerful politicians, Hillary Clinton.

When Hillary Clinton was in the State Department, she claims that she used her personal email account instead of the normal government account as she did not want to have to carry round two devices, one for personal and one for government related emails. However, use of a personal email in this way has got Hillary Clinton into a spot of hot water recently.

The first potential issue at stake is security but Hillary Clinton’s aides and the State Department claim that the personal email account used has never sent or received classified information. She also states that any relevant matters were sent to government email addresses and so the receiver would have triggered an automatic archiving mechanism.

The second issue is one of public disclosure. It was common policy at the time that emails on government accounts were archived and backed up automatically. This then became a mandatory requirement last November and the State Department had asked all former members of the department who had used personal email accounts, Hillary Clinton included, to produce all of their emails for archiving. Hillary Clinton is said to have handed over more than 30,490 emails (totalling around 55,000 pages) but deleted around 31,830 that she deemed to be personal.

She claims any other emails were purely personal such as arrangements for her mother’s funeral, her daughter’s wedding and her yoga routines.

While few of us are looking to buy the Clinton fitness DVD, the key questions here are: did a personal email account have weaker security than government accounts, so making it easier to hack into? Was Hillary Clinton reckless? Also, should she be the person to determine what is and is not personal? Potentially she would have a vested interest in covering up mistakes made in office by classifying the matter as personal.
So what do the lawyers think? Well that always depends upon whose lawyers are asking of course and, in this case with political point scoring to be had, there are plenty to choose from.

Harold Koh, the legal adviser for Hillary Clinton from 2009-2013, has refused questions about the advice he gave on issues with use of a personal email address for government matters by claiming attorney-client privilege. Nicely ducked, but this privilege has been questioned by other lawyers that argue that his client is the American public and not Hillary Clinton. As such, the privacy of the privilege would be irrelevant as the entire American public would have a right to know.

Meanwhile the Associated Press has threatened legal action for the release of the emails under freedom of information requests. It clearly thinks that there is an issue of public disclosure at stake.

In response to criticism, Hillary Clinton has stated that she intends to publish her emails. However, when Jeb Bush (another potential Presidency candidate) recently did this after similar problems, individuals’ social security numbers and birth dates were published online, a clear breach of third party privacy.

As much as some would like to know whether Hillary Clinton’s yoga routine includes a ‘dolphin plank’ or a ‘half frog’ pose, there are a myriad of complex legal issues at stake. In this messy collision of law and politics the only certainty is that the consequences are likely to be costly.


How To Really Get A Million Dollar Smile in China

A gleaming smile is de rigueur for most adverts –people are more likely to buy great products and services if other smiley people are happy with them too. It is just another part of the illusion that is used to send a certain message to potential customers, like the ability to fly after consuming an energy drink or the seductive effect an aftershave or perfume has on a potential partner. But can the perfect smile be too perfect even for an advert? And can a smile really be worth a million dollars?

Crest, a manufacturer of toothpaste in the Procter & Gamble group, recently found out that the answer to both questions is yes. The company was fined around $1m for a perfect smile it used in an advert after it was deemed to have overstated the effects of its whitening toothpaste in China. Not the million dollar smile most of us would want.

According to China’s advertising regulator the company used images that had been improved and digitally altered to show a whiter than reality smile. The advert in question starred Dee Hsu, a famous Taiwanese talk show host and singer, known as ‘Little S,’ who claimed during the commercial that the toothpaste would offer “one-day whitening.” The advert was later pulled in the middle of 2014 after regulator claims of false advertising.

Crest has maintained that its products comply with all of the relevant testing and national laws in China before they enter the market. Sadly for Crest though, Chinese regulators currently appear to have the bit between their teeth when pursuing companies perceived to be breaching rules designed to protect consumers. The fine for Crest is the highest amount a Chinese authority has raised for a breach in this area but Crest is not the only company to have had the smile wiped from its face in China recently. The fine comes on the back of a series of severe fines imposed by China on foreign companies trading there.

Apple for example, had a $165,000 bite taken out of it in 2012 for violating copyright by allegedly publishing unlicensed electronic copies of Chinese writers’ books on the App store. Meanwhile, McDonald’s were made to chew over an apology after continuing to use a local supplier in China who had been found to have used expired meat. Johnson & Johnson were fined (along with four other companies) an unsightly total of $3.04m for allegedly fixing prices in the eyeglass and contact lens market in China in 2014. Volkswagen and Chrysler were fined $46m for price fixing in 2014, while Wal-Mart and Carrefour were fined for misleading pricing information in 2011. Carrefour was also fined $80,100 for mispricing items in its supermarkets in 2012. In February 2014, Qualcomm was fined a gobsmacking $975m for alleged anti-trust breaches in terms of its patents. That was a record in Chinese corporate history.

China’s teeth-baring to better protect consumers by handing out strict punishments are leaving a bitter taste in the mouth of foreign companies trading there. Western corporations are used to strict consumer protection laws in their own countries though so a slightly greater focus on complying with local regulations in China’s massive consumer market should soon put smiles back on their faces.

Turkey Twitter Blocking Angers Academics

Professor Kerem Altiparmak and Professor Yaman Akdeniz, both Turkish academics, have sent a legal notice threatening to sue Twitter in America and Turkey after it blocked the accounts on the social media site of certain individuals in Turkey. Professors Altiparmak and Akdeniz claim that this breaches the Turkish population’s human right for freedom of expression.

On 20th March 2014, Twitter as a website was blocked entirely by Turkish authorities before being reinstated two weeks later after the Constitutional Court in Turkey ruled that to block Twitter would be a “heavy violation” with “no legal basis.”

Since it became lawful again, accounts that have been used to tweet anti-government messages have been blocked and the government is now proposing new laws to give it even more control over social media. The government has subsequently brought a bill before parliament that, if passed, would give it the power to block websites such as Twitter without obtaining a court order first.

One example of Twitter trouble that hit the news occurred when Twitter account holder “@fuatavni” was blocked in August 2014 after reporting on raids against ministers and mayors during investigations into their potential corruption. The account was recently blocked again by court order after the public prosecutor alleged Fuat Avni’s involvement in alleged illegal wiretapping.

Meanwhile, Sedef Kabas, a journalist, has been charged with targeting those involved in an anti-terror operation after she tweeted in order to name a judge who had dropped a corruption probe. This was despite the fact that the judge’s name was already in the public domain.

Altiparmak and Akdeniz claim that the arbitrary use of the power to block certain individual’s accounts has no legal basis. Altiparmak believes that as Twitter is based in America and has no registered office in Turkey it should not be bound by Turkish law and so for the government to block individuals from using it violates their freedom of expression.

Twitter’s transparency report shows that, for the second half of 2014, Turkey had more removal requests from Twitter than all other countries combined. This suggests that the tactic of blocking any individual who speaks out against the government is used more frequently in Turkey than anywhere else.
So, unless Altiparmak and Akdeniz are successful in their legal notice, free speech through Twitter (and therefore more generally) in Turkey could be hindered further.