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Comment: Re:The Problem Isn't "Free Speech vs Privacy" (Score 1) 278

by Grumbleduke (#47057147) Attached to: The US Vs. Europe: Freedom of Expression Vs. Privacy

Just to clarify the EU court ruling didn't say:

1. You have no right to be forgotten by the Newspaper that published the story
2. You have a right to be forgotten by search engines.

It said something like:

You may have a right to be forgotten if your right to privacy in certain information outweighs the public interesting in knowing and accessing the information, and if removing the information from a search engine is a proportionate response.

EU law is often drafted in terms of proportionality, and the CJEU doesn't usually rule on the facts of a case, just gives guidance on interpreting the law. The key parts were that a search engine didn't have immunity just because it didn't host the original content (it was still processing data) and that just because the information was still available on a website didn't mean that removing it from a search engine was necessarily a waste.

Comment: Re:Bad cases make bad law (Score 1) 199

by Grumbleduke (#47002777) Attached to: EU Court of Justice Paves Way For "Right To Be Forgotten" Online

I think that Google did make that point; it is Question 2(d) of the reference, and dealt with in paragraphs 62-88. I think whoever wrote that line meant to say that they'd failed to convince the Court of that point, rather than that they hadn't made it.

Imho this ruling isn't as "evil" or "censorship-based" as some commenters have made out, but also isn't nearly as pro-individual privacy.

As with most EU law, it comes down to proportionality; balancing the gain to the individual's right to privacy by removing the search result against the trouble to remove it (very low weighting) and the public's freedom of expression/right to know it (can vary).

In theory this is great; you and I can get the awkward things we did when we were young scrubbed before they turn up with job applications, but evil corporations can't use it to bury their dirty secrets, or politicians to hide uncomfortable pasts.

In practice, however, this kind of balancing is very expensive to do - and the Court seems to be encouraging direct claimant/search engine interactions (rather than going through the domestic courts), so we could see search engines just agreeing to take down everything they're told because they don't want to pay to fight or even examine the claims - as with defamation or copyright claims.

[It's also important to remember that this is a ruling on a 20-year-old law, the law technically hasn't changed, this is just the first time the CJEU has been asked whether search engines "process" personal information etc..]

Comment: Re:Bad cases make bad law (Score 1) 199

by Grumbleduke (#47000221) Attached to: EU Court of Justice Paves Way For "Right To Be Forgotten" Online

Erm... Google did have standing. You can read the judgment of the court here.

Google was represented and their arguments are referred to throughout the ruling. Also represented were the Spanish, Greek, Polish, Austrian and Italian Governments, and the European Commission.

I don't think that it is possible to appeal Grand Chamber judgments in preliminary ruling applications such as this, but I could be wrong.

Comment: Re:...the first rigorous proof... of unprovables. (Score 1) 612

I'm sure the math can line up to make it "work" on paper but how exactly does one test such things?

You look for consequences of the theory. Things that would happen as a result of this, but which you won't expect otherwise.

A great example being the recent announcement by the BICEP2 people. The theory they were working on was inflation - which made the maths work on paper, but happened billions of years ago so was hard to test. But the theory predicted that inflation would have caused an "imprint" of gravitational waves in the microwave background radiation, something unlikely to happen otherwise - and these people were able to detect this imprint.

This is how science works sometimes. The theoretical physicists come up with a theory, the mathematicians prove it is possible and the experimental physicists find some consequence of the theory that can be tested.

Comment: Re:If you don't like it.... (Score 1) 431

by Grumbleduke (#46429041) Attached to: Jewish School Removes Evolution Questions From Exams

Nope nope nope. Marriage isn't a right

It isn't the marriage which is the human right. It is the right not to be discriminated against on the basis of your sexuality or gender (or, in the case of mixed-race marriages in the US, race). Without same-sex marriage you have a situation where the state is saying "this couple can get married, but this couple can't because they are of the same sex."

Which is partly why same-sex marriage wasn't an issue in much of the Western world 40 years ago; discrimination on the basis of sexuality wasn't considered to be a thing - in some places same-sex relationships were still illegal. But that's progress for you.

I walk up to a pregnant woman, stab her in the gut, kill the 'foetus'. I should only be charged with assault (or possibly attempted murder).

I can't speak for most jurisdictions, but in England you couldn't be convicted of murder (or manslaughter etc.) unless the woman died. English law does not consider a foetus to be a "person", therefore it cannot be murdered.

However, if you were to cause damage to the foetus but it was still able to be born alive, then it becomes a person. If it subsequently dies as a result of your actions, that could be murder.

There is no universal definition of when life begins; there are something like 7 different points used across science and law, and ultimately someone has to make a judgement as to which definition will be used in each context.

Comment: Re:Did they read him his rights? (Score 1) 169

by Grumbleduke (#46298537) Attached to: High Court Rules Detention of David Miranda Was Lawful

Except he didn't have any particular rights upon being questioned. No right to a lawyer, no right to silence etc.. Which is partly why this particular law is so controversial. If he had been arrested as a terrorist he would have had far more rights and greater protections.

Comment: Re:Of course it's "lawful" (Score 1) 169

by Grumbleduke (#46298431) Attached to: High Court Rules Detention of David Miranda Was Lawful

You've been reading the Telegraph too much.

No UK Court has ruled that prisoners have to vote (although many already can). The UK Supreme Court did rule that denying almost all prisoners the right to vote was incompatible with the European Convention on Human Rights, agreeing with the ECtHR. But they didn't order that any prisoner be given the vote.

The English and later UK Courts ruled against deporting Abu Qatada on the grounds that there was a real risk he wouldn't receive a fair trial in Jordan. It was clear from the beginning of the saga that this was an issue, and what the government needed to do to fix the issue, but pigheaded home secretaries decided to keep trying to deport him before fixing the issue. Once they had obtained the correct assurances he went quietly. A starting point for this case would be the final Court of Appeal ruling where they point out that Theresa May's appeal was fairly pointless, but they include the background and links to the earlier rulings. Incidentally, the first judgment involving him was in 2007, and first attempt to deport him was in 2005 - so the "decades" claim is false.

I can't find a copy of the third ruling; it wasn't made in 2014 or the last couple of weeks of 2013, and the article is lacking in any sort of citation. The article does, however, repeat the nonsense about judges ignoring the rules. The judges have been very clear that they have been applying the law as passed by Parliament, and whether or not Parliament approves of them, Theresa May's own departmental rules are not law and cannot overturn an Act of Parliament. Hence she's trying to put some stuff in the Immigration Bill to achieve the same thing (although there's a reasonable chance the Courts will declare that incompatible with the ECHR, or work around it to comply with the HRA).

I know that I'm a non-Telegraph-reading liberal, but I have nothing wrong with the first two cases mentioned, and cannot comment on the third in detail, but will generally go with a tribunal and appeals tribunal over the Telegraph when it comes to matters of fact or law.

Comment: Re:Of course it's "lawful" (Score 1) 169

by Grumbleduke (#46297969) Attached to: High Court Rules Detention of David Miranda Was Lawful

There is also this one in 72, that shows the justices are really out of touch: "I accept that the Schedule 7 stop constituted an indirect interference with press freedom, though no such interference was asserted by the claimant at the time." So basically the justices expected a foreign citizen (Brazilian) to properly cite the UK legal code while being locked in a room by thugs. Seriously guys?!

That's not what they were saying (based on what I remember of the judgment and the witness statements). The argument was that at no point during the detention did Miranda claim to be a journalist or working in journalism at the time. Therefore the officers carrying out the detention had no reason to believe that they were interfering with press freedom on those grounds (they might have done so on others). There was no need for him to have cited the relevant English law (there's no "UK legal code").

This case was initially screwed by the fact that Miranda didn't give evidence. So the Court only had witness statements from the police officers, the UK Government and, eventually, Glenn Greenwald. So all the stuff about whether the length of time was reasonable wasn't questioned as there was no evidence to dispute it.

Another point worth making (that Laws LJ pointed out) is that while the text of the law may say that a police officer can do something, that doesn't mean that it is legal for the police officer to do that; there are other legal principles (such as common law/constitutional ideas, and duties imposed by other laws such as the Human Rights Act) that might stop it. So the main one referenced in the judgment was the common law requirement that police officers (and all public officers) act in good faith and with some justification.

If Miranda could have shown that the police officers didn't act in good faith (which he might have been able to do), the actions would have been illegal.

Personally I think that the Court thought that the stuff should have been legal, so took a very narrow and legally-precise approach to the case. If they'd wanted to find it illegal they could have taken a broader approach, looking at the context, questioning what the Government and Police were telling them. Hell, Laws LJ could have made up a completely new legal principle if he'd wanted to - it wouldn't have been the first time.

[Throwing away mod points for this, but this kind of thing is important to me.]

Comment: Re:What do we do with all the people though? (Score 1) 888

by Grumbleduke (#46255347) Attached to: Star Trek Economics

Nobody likes the idea of paying somebody to sit around and do nothing. They want that for themselves.

Which is, perhaps, why these sorts of ideas have to be discussed in the context of fantasy and science fiction, where it is "safe" to discuss radical ideas. I've recently started re-watching Star Trek TNG and am surprised at just how anti-capitalist, anti-death penalty, pro-human rights, pro-socialism it is - but it works, because it is people in the twenty-fourth(?) century on a space ship.

The idea is, to quote First Contact, that "the acquisition of wealth is no longer the driving force in our lives, we work to better ourselves and the rest of humanity." Their society has got to the point where they don't care about money or ownership of stuff; they have recognised that it is meaningless. Or something like that.

Comment: Re:or stop hiding... (Score 1) 377

by Grumbleduke (#46241837) Attached to: Assange's Lawyers: Follow Swedish Law, Interrogate Him In the UK

Under English law, if someone is asleep there is a presumption that they have not consented to the sexual activity, and that the awake party (or parties) are aware of this.

However, it is just a presumption. If a defendant can raise some evidence to say that the other party had consented before (impliedly or explicitly), or they reasonably believed they have, the prosecution must then prove that there wasn't consent, and the defendant didn't believe there was.

So in most cases where someone is asleep and sex starts, it never gets reported to the police (even if it is, actually, rape). Alternatively, if it does come to the attention of the police, the victim might give evidence that they had consented (which might happen in Assange's case). In my limited understanding, these issues only go to the police when it is clearly rape, or there is some other factor. In Assange's case, it was they allegedly went to the police to ask if they could force him to take an STI test, and the police recognised that what was described could amount to rape etc. Which makes me wonder how many other women around the world have been in similar situations with him, but not felt able or willing to go to the police.

Being incapacitated with drugs etc. works similarly; there is a presumption of no consent, but the defence can try to remove it.

So in general, if you are likely to engage in any sort of sexual activity with someone, it is best to get a signed consent form filled out in advance (possibly witnessed) - at least, that's what I picked up from studying sexual offences...

Comment: Re:or stop hiding... (Score 2) 377

by Grumbleduke (#46239841) Attached to: Assange's Lawyers: Follow Swedish Law, Interrogate Him In the UK

What those quote are saying is that if the Swedish courts say he can be extradited, the Government can say he can't be.

However, that decision still has to be made legally; i.e. in accordance with the law. So the Government couldn't (I hope) refuse an extradition because it was one of their ministers and they liked him. They would need a reasonable ground (or whatever their legal equivalent is - I don't know much about Swedish extradition procedures, but I do about English ones). While I disagree with this article's conclusions, it has some stuff pointing out how the Government would have specific grounds for refusing an extradition request... but to me it seems perfectly reasonable for them not to give hypothetical guarantees - particularly if those guarantees are enshrined in law anyway (such as not extraditing people for political crimes, or in cases of discrimination and persecution). If they get an extradition request, they can dismiss it immediately if it is manifestly unfounded under one of these grounds (or any other ground) but until they receive a request, they can't know if that's the case.

Comment: Re:or stop hiding... (Score 2) 377

by Grumbleduke (#46239733) Attached to: Assange's Lawyers: Follow Swedish Law, Interrogate Him In the UK

If he is in Sweden, having been surrendered, then the UK's permission will be needed to extradite him further. That's in Article 28(4) of the Framework Decision on the European Arrest Warrant:

...a person who has been surrendered pursuant to a European arrest warrant shall not be extradited to a third State without the consent of the competent authority of the Member State which surrendered the person. Such consent shall be given in accordance with the Conventions by which that Member State is bound, as well as with its domestic law.

It doesn't matter if Sweden drops the charges or accusations, they couldn't extradite him to the US without permission from the UK.

On the Agiza and al-Zery issue, to me that is an argument against extraordinary rendition happening from Sweden; it was well over a decade ago, and caused such a huge scandal nationally and internationally, with changes to rules and laws, that it is unlikely to happen again, in an even higher profile situation, with a new government. Iirc there was likely to be a major investigation with legal action against the relevant Swedish officials, but that wasn't likely to go anywhere as the foreign minster at the time was murdered between the renditions and the scandal breaking.

Were Sweden to break the law and extra-judicially surrender Assange to the US, there would be a major international scandal, as they would be almost certainly breaking Swedish, EU and ECHR law, to help the US in what is probably already an unpopular situation. I don't think it would end well for the Swedish government - not least because they'd struggle to ever get an extradition or surrender warrant in similar circumstances ever again.

Comment: Re:Extradition from Sweden is easier (Score 1) 377

by Grumbleduke (#46239319) Attached to: Assange's Lawyers: Follow Swedish Law, Interrogate Him In the UK

I think the person who wrote that page may have been a little confused. If you read a bit further down they copy the relevant part of the US-Sweden supplemental treaty:

If the extradition request is granted in the case of a person who is being prosecuted or is serving a sentence in the territory of the requested State for a different offense, the requested State may:

b) temporarily surrender the person sought to the requesting State for the purpose of prosecution. The person so surrendered shall be kept in custody while in the requesting State and shall be returned to the requested State after the conclusion of the proceedings against that person in accordance with conditions to be determined by mutual agreement of the Contracting States.

That's the temporary surrender procedure - but if you note the first 6 words, it only apples after the normal extradition process has been successful; it is for situations where extradition is approved by the suspect is already on trial or in prison in the extraditing state. So it still has to go through the traditional tests and so on.

Anyone asserting that extradition from Sweden to the US would almost certainly happen should be treated with scepticism, as there is little evidence to support this either way - until there is evidence that the US is actually charging Assange with anything. What we can be pretty certain of is that he will get his full due process in Sweden, then the UK, then the ECtHR, before he ends up in the US.

Nothing is impossible for the man who doesn't have to do it himself. -- A.H. Weiler

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