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Question Body: <p>In a case where a South African company has contracted independent contractors from for example Zimbabwe or other foreign countries, is it legal for the independent contractor to be paid into a South African bank account (whether the bank account is a foreign account or a local account)? If the foreigner was at some point in South Africa legally and at that time, they opened a bank account in South Africa but after some time, they returned to their own country but never closed the South African bank account and they started to work remotely for the South African company, is it legal for the independent contractor to be paid into a South African bank account? What about tax liabilities? Is it perhaps a way for the independent contractor to avoid paying tax in their own country and can the South African company be held responsible for that?</p>
<p>Would a better option not be to pay the independent contractor into their local account in their own country?</p>


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Answer 1: <blockquote>
<p>is it legal for the independent contractor to be paid into a South
African bank account?</p>
</blockquote>
<p>Yes.</p>
<blockquote>
<p>What about tax liabilities?</p>
</blockquote>
<p>Tax liabilities have nothing to do with the location of the bank into which you are paid.</p>
<blockquote>
<p>Is it perhaps a way for the independent contractor to avoid paying tax
in their own country and can the South African company be held
responsible for that?</p>
</blockquote>
<p>Only if the independent contractor is committed (1) to engaging in felony tax fraud and (2) to causing the person paying the independent contractor to incur civil tax liabilities and civil tax penalties that will cause the person hiring the independent contractor to fire the independent contractor and sue the independent contractor for money damages.</p>


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<p>The proposed course of conduct of trying to use a bank account in a particular place to avoid paying taxes could also implicate both the independent contractor and the person paying the independent contractor as a co-conspirator in felony money laundering, which is a extraditable offense.</p>


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Question Title: How could a nonprofit obtain consent to message relevant individuals at a company on LinkedIn under the ePrivacy Directive?


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Question Body: <p>Suppose a nonprofit wishes to contact some EU-based employees of an EU-based company in an effort to get that company to use a free service it is offering, and is considering doing so via LinkedIn. Per Article 13 of the ePrivacy Directive - i.e. <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32002L0058" rel="nofollow noreferrer">Directive 2002/58/EC</a>:</p>
<blockquote>
<ol>
<li>The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic
mail for the purposes of direct marketing may only be allowed in
respect of subscribers who have given their prior consent.</li>
</ol>
</blockquote>
<p>And, per Article 2(h), 'electronic mail' would include social media messages such as LinkedIn messages:</p>
<blockquote>


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</ol>
</blockquote>
<p>And, per Article 2(h), 'electronic mail' would include social media messages such as LinkedIn messages:</p>
<blockquote>
<p>&quot;electronic mail&quot; means any text, voice, sound or image message sent over a public communications network which can be stored in the network or in the recipient's terminal equipment until it is collected by the recipient</p>
</blockquote>
<p>'Direct marketing' is not defined in the ePrivacy Directive, but the UK Information Commissioner's Office gives the following <a href="https://ico.org.uk/for-organisations/direct-marketing/guide-to-pecr/electronic-and-telephone-marketing/" rel="nofollow noreferrer">guidance</a> (my emphasis):</p>
<blockquote>
<p>Direct marketing is defined in section 122(5) of the Data Protection
Act 2018 as:</p>
<p>“the communication (by whatever means) of advertising or marketing
material which is directed to particular individuals”.</p>
<p>This covers all advertising or promotional material, including that


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<p>“the communication (by whatever means) of advertising or marketing
material which is directed to particular individuals”.</p>
<p>This covers all advertising or promotional material, including that
promoting the aims or ideals of not-for-profit organisations – for
example, it covers a charity or political party campaigning for
support or funds.
The marketing must be directed to particular individuals. In practice,
all relevant electronic messages (eg calls, faxes, texts and emails)
are directed to someone, so they fall within this definition.</p>
<p>Genuine market research does not count as direct marketing. However,
<strong>if a survey includes any promotional material or collects details to</strong>
<strong>use in future marketing campaigns, the survey is for direct marketing</strong>
<strong>purposes and the rules apply</strong>.</p>
</blockquote>
<p>From this, it seems that:</p>
<ul>
<li>(a) Prior consent would be required to send messages to specific


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<strong>purposes and the rules apply</strong>.</p>
</blockquote>
<p>From this, it seems that:</p>
<ul>
<li>(a) Prior consent would be required to send messages to specific
individuals to promote the nonprofit's offering, including via
LinkedIn.</li>
<li>(b) A simple message asking if a person would be interested in
learning more, or otherwise trying to obtain their consent, would
itself be considered direct marketing, so itself require prior
consent...</li>
</ul>
<p><strong>If this is correct, how could the nonprofit legally contact the relevant stakeholders?</strong> I am confused about what should be done in this case. It seems very strange that a person at a company who might be interested in using the nonprofit's services cannot even be sent a one-line opt-in request to receive more details on LinkedIn. <strong>Any thoughts gratefully appreciated.</strong></p>
<p>Some solutions I have considered:</p>
<ol>


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<p>Some solutions I have considered:</p>
<ol>
<li>Take advantage of the difference between 'corporate subscribers' and 'individual subscribers' in the UK's implementation of the ePrivacy Directive (PECR), which <a href="https://ico.org.uk/for-organisations/direct-marketing/business-to-business-marketing/" rel="nofollow noreferrer">allows direct marketing to employees' corporate email addresses</a>. <em>Only applies to the UK and probably does not apply to LinkedIn.</em></li>
<li>Phone the individual concerned to obtain consent prior to sending a message. <em>Requires knowing the phone number and is time-consuming.</em></li>
<li>Contact the company's official email address (e.g. info@company.com) instead. <em>Impractical as reply rate is very low from such addresses.</em></li>
</ol>


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Answer 1: <p>You seem to have a solid understanding of the ePrivacy implications, but lack a fundamental insight: your organization does not have a right to achieve its mission or a right to disseminate unwanted marketing. But other people do have a right to not be subject to excessive marketing.</p>
<p>Of course, reality is more complex, so it's probably not entirely impossible to do marketing.</p>
<ul>
<li><p>In your point 1, you note that some EU/EEA/UK countries distinguish ePrivacy protections between consumer and business subscribers. You can research the exact rules in the potential customer's country. This may allow you to email corporate/business accounts.</p>
<p>I would strongly advise against messaging via Linkedin if there is a chance that the person is using that account for personal purposes like networking or hunting jobs, not just for conducting official company business.</p>
</li>


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</li>
<li><p>ePrivacy has markedly different rules for email marketing vs phone marketing. Whereas there are pretty strict rules for electronic messages and robocalls, manual cold calling can be OK from an ePrivacy perspective. However, many EU/EEA/UK countries have rules that go beyond ePrivacy, and may have a kind of do-not-call registry that you must respect. Of course manual calls take more effort than spamming emails, but recall the above point that you don't have a right to spam other people.</p>
<p>Phone calls are probably the most appropriate approach when the company lists individuals' phone numbers on its website. This will at least give you a few seconds of attention with a real human, more than you can expect from an email that is likely to be caught by spam filters.</p>
</li>


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</li>
<li><p>Marketing via physical mail tends to have very lax rules. Note that every company/business that has a website will have to disclose its contact details including an address there, so this information is easy to acquire. However, chances are low that anyone would seriously engage with that marketing.</p>
</li>
<li><p>You can consider alternatives to direct marketing, so that interested companies eventually come to you. Things like press releases, writing guest articles in industry publications, speaking at relevant conferences, working on search engine optimization, buying ads.</p>
</li>
</ul>
<p>On the GPDR aspects:


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</li>
</ul>
<p>On the GPDR aspects:
GDPR and ePrivacy overlap, and it is necessary to comply with both sets of rules (GDPR likely applies here via Art 3(2)(a)). But where they potentially contradict each other, ePrivacy as the more specific law has precedence. For example, ePrivacy overrides the default GDPR legal basis rules when it comes to email marketing to existing customers (opt-out basis, no consent needed) or to using cookies (needs consent unless strictly necessary).</p>
<p>Information that relates to corporations is not personal data, but information that relates to individual employees or to sole proprietors would typically be personal data. Since you are unlikely to obtain consent for using this data, you would need an alternative GDPR legal basis such as a &quot;legitimate interest&quot;.</p>


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<p>Relying on a legitimate interest requires that you conduct a balancing test, weighing your interests like marketing against the recipient's interests, rights, and freedoms. Core question in this context is whether the data subject can reasonably expect their personal data to be used like this, taking into account the nature of their relationship with you. Since there is no pre-existing relationship, claims of a legitimate interest are weak to start with. However, it may be possible to argue that when a company makes employee contact details available via its website (not LinkedIn!) then relevant marketing can be reasonably expected. I would rather not rely on such arguments, though.</p>


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Answer 2: <h2>Ad 1: E-mail</h2>
<p>Private E-mails are PII and need to be handled under GDPR. You need either consent or legitimate interest to work with those. Marketing without previous engagement is <strong>not</strong> a legitimate interest.</p>
<h2>Ad 2: calling</h2>
<p>Private phone numbers are PII and you need GDPR consent or a legitimate interest to work with those. Marketing without previous engagement is <strong>not</strong> a legitimate interest.</p>
<p>Also, you can not use an automated calling machine, as that is explicitly called out. Also <a href="https://ico.org.uk/for-organisations/direct-marketing/guide-to-pecr/electronic-and-telephone-marketing/telephone-marketing" rel="noreferrer">marketing calling in itself has strict rules.</a></p>
<h2>Ad 3: official e-mail</h2>
<p>Re low reply rates are because typically, marketing mails are filtered and deleted before anyone actually reads them. That is not a question of law though.</p>
<h2>Ad 4: Informational message</h2>


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<p>Re low reply rates are because typically, marketing mails are filtered and deleted before anyone actually reads them. That is not a question of law though.</p>
<h2>Ad 4: Informational message</h2>
<p>Informing someone you have no relation to that a service is available is advertisement, no matter if it is a service for free or pay.</p>


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Question Title: Is a provider&#39;s collecting your PHI and then cancelling your appointment a HIPAA violation?

Question Body: <p>Suppose someone arrives on time for an appointment, fills out all of the new patient paperwork, supplies a photo of their ID and insurance and is then told by the provider after handing in the material that their appointment has been cancelled.</p>
<p>Is collecting all of this PHI without actually seeing the patient a HIPAA violation?</p>


Answer 1: <p>The <a href="https://www.ecfr.gov/current/title-45/subtitle-A/subchapter-C/part-164/subpart-E" rel="nofollow noreferrer">HIPAA Privacy rule</a> does not prohibit collection of information, it limits disclosure of collected information. §164.502 categorizes the standard permissions to use and disclose. An example of such information is your name. It is allowed for them to ask your name in order to make an appointment, it is not necessary to wait until they actually see you.</p>


Tags: hipaa


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Question Title: Can my will gift digital files to specific people?

Question Body: <p>A specific bequest is <a href="https://legal-dictionary.thefreedictionary.com/specific+bequest" rel="noreferrer">defined</a> as such:</p>

<blockquote>
  <p>the gift in a will of a certain article to a certain person or persons</p>
</blockquote>

<p><a href="https://www.rocketlawyer.com/article/types-of-bequests-in-a-will.rl" rel="noreferrer">Here</a> it says:</p>

<blockquote>
  <p>A specific bequest is a gift (bequest) or a specific item or asset to a named person or entity.</p>
</blockquote>

<p>Does a computer file count as an item?</p>

<p>Can I say that person A should get file A from my laptop and person B should get file B?</p>

<p>I imagine that I can, but it is not immediately clear to me that "item" or "article" includes digital files.</p>


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<p>I imagine that I can, but it is not immediately clear to me that "item" or "article" includes digital files.</p>


Answer 1: <p>Wills are governed by state law, but yes you may. Almost anything that can be legally owned/possessed can be bequeathed. When a copyright holder dies their copyrights (intangible property) are transfer to the estate or heirs as proscribed in the will or state law if no will exists.</p>


Answer 2: <p>Technically, you would be bequesting the <em>rights to</em> the files. Rights are assets, and can be bequested. You have the right to access your laptop, and assuming you created the files, you have the right to copy them onto another device and do whatever else you want to do with them. Those rights can all be bequested, even though the files themselves are in some sense not "items".</p>


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Answer 3: <p>The short answer is &quot;sure, why not?&quot; A will disposes of the deceased's <strong>property</strong>. In many cases a digital file can be treated in the same way as an analogous item of <a href="https://en.wikipedia.org/wiki/Personal_property" rel="nofollow noreferrer">personal property</a> such as a chattel (like a book or a key) or <a href="https://en.wikipedia.org/wiki/Chose" rel="nofollow noreferrer">chose in action</a> (like a bank account or share certificate). If the analogy holds up and the executor faithfully executes the deceased's instructions, then there is no problem.</p>


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<p>When the analogy breaks down because of the fundamental differences between digital files and the established categories of property, this highlights the amorphous nature of property itself. In the common law system, property is just a <a href="https://en.wikipedia.org/wiki/Bundle_of_rights" rel="nofollow noreferrer">bundle of rights</a> which can be enforced by starting litigation by analogy to previous cases. To answer your question properly, we need to analyse the problem in terms of hypothetical parties who could sue each other and persuade the court to make or not make particular orders.</p>


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<p>Assume that the deceased writes in their will that &quot;person A should get file A from my laptop and person B should get file B,&quot; but the executor just gives the laptop to A. B could sue the executor for <a href="https://en.wikipedia.org/wiki/English_trust_law" rel="nofollow noreferrer">breach of trust</a>, and argue that file B was an item of personal property which the executor was bound to transfer to B. The executor could reply that the clause was a non-binding expression of wishes, to be treated in the same way as a direction about funeral arrangements. To resolve this dispute, the court would hear evidence about why file B is so important and perhaps, why the executor chose not to comply with the deceased's wish. These details could be important to the court's determination of the resulting questions of property law and <a href="https://en.wikipedia.org/wiki/Equity_(law)" rel="nofollow noreferrer">equity</a>.</p>


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<p>On the other hand, suppose the executor gives B a copy of file B, then gives the laptop to A with the original version of file B still on it. This might defeat the testator's goal of giving file B exclusively to B (which would go without saying, if the file were an item of personal property). Whether B could somehow enforce that exclusivity would again raise complicated questions of equity, and perhaps <a href="https://en.wikipedia.org/wiki/Copyright" rel="nofollow noreferrer">copyright</a>. On the other hand, if the reason for exclusivity was that file B was a Bitcoin wallet (which A then appropriates), the analogy to tangible property might become workable again.</p>


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<p>This means that the longer answer to your question is &quot;maybe, but anybody who wanted to enforce that part of your will would need to persuade the court that the file can be treated as personal property, or that your executor is otherwise obliged to follow your instructions about the file as a matter of trust law.&quot;</p>


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Question Title: Can I tell police to wait and call a lawyer when served with a search warrant?

Question Body: <p>Somewhat influenced by <a href="https://law.stackexchange.com/questions/89862/what-does-a-search-warrant-actually-look-like-how-can-i-recognize-one">this question</a>.</p>
<p>This is hypothetical question. Suppose the police turn up at my door with a search warrant. I know nothing about warrants and couldn't tell apart a search warrant from a supermarket receipt. But I do have a lawyer who knows these things. Can I somehow make the police wait until I call my lawyer, and the lawyer arrives and examines the warrant - before the search proceeds?</p>
<p>Any jurisdiction is fine for this question.</p>
<p><strong>Added:</strong>
Thank you to all those that replied and commented. So, it sounds like (just as I thought), I can ask - and they can ignore.</p>


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Answer 1: <p>You cannot legally force police to wait to carry out the search. They can search even if you are not present. In fact, they are required to execute the warrant within a certain time frame, which precludes delaying the execution of the warrant. You can inspect the warrant to see if it is &quot;proper&quot; (has the judges name, correct address, is a search warrant and not a warrant of
removal/deportation...). Calling a lawyer is always wise, but that does not stop the search.</p>


Answer 2: <p>You can certainly call your lawyer when the warrant is served but the police are going to seize the evidence they want to since the warrant is at this stage considered valid.  There are several avenues during various stages of the legal process where the warrant can be contested in courts, since any incriminating evidence will be communicated to the defendant and its admissibility in a trial will be determined prior to a jury ever being empaneled.</p>


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Answer 3: <p>Your protection from unauthorized searches is granted through inadmissibilty of evidence not through preventing the search. So if the police show up at your door and only present a supermarket receipt they can still search your apartment. But the 2 pound bag of cocaine found on your living room table will be excluded from evidence because the search was invalid.</p>
<p>Hence from the police perspective showing you an invalid search warrant is a very bad idea because it would invalidate any possible evidence they find. They would be better off not searching your place and not knowing about it because then it still exists in principle and may possibly be found later with a valid search warrant. If they have seen it with an invalid search warrant the evidence is lost legally.</p>


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Answer 4: <p>Jurisdiction <a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a>:</p>
<p>The police does not <strong>have</strong> to wait, but common advise is to call a lawyer or at least a neighbour to act as a witness and <strong>ask</strong> the police to wait.</p>
<p>The common principle of commensurability applies to search warrants as well. So unless there is immediate danger (e.g. of you or someone else making things disappear) they might wait, especially if it's just a few minutes. While no specific law forces them to do so, not waiting a few minutes when it would not hinder them to do so opens them up to legal challenges on those grounds.
Calling a lawyer also gives an opportunity for the lawyer to talk to the police by phone, even if arriving at your place takes time.</p>
<p>Sidenotes:</p>
<ol>


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Calling a lawyer also gives an opportunity for the lawyer to talk to the police by phone, even if arriving at your place takes time.</p>
<p>Sidenotes:</p>
<ol>
<li>In Germany, there are restrictions on time, the police can't serve a search warrant in the middle of the night, unless they convince a judge of immediate and urgent danger.</li>
<li>German search warrants also have to state <strong>what</strong> is to be searched and seized and again the principle of commensurability prohibits police from searching or seizing other things. That's why lawyers generally advise you to just hand over or show them where to find what they're looking for, which minimizes the mess they'll cause.</li>
<li>Fun fact: If they break your door, or otherwise damage your property, they have to pay for the damage, if it exceeds 25 Euros.</li>
</ol>


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Answer 5: <p>Jurisdiction: <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>You can ask a police person anything. They are not legally obliged to wait, but yes you can ask them just about anything. As always, it is best just to do whatever the person with the gun tells you to do. Dead people cannot sue</p>
<p>You have a well established constitutional right to film police while on duty. You are also not required to leave the premises while they do the search. It would be prudent to have them explain the exact details of what the warrant entitles them to do and film them while they do it.</p>
<p>As always there are a slew of ways in which a warrant can be invalidated, but none of them can happen when they search your place. You can beat the wrap but not the charge.</p>


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<p>As always there are a slew of ways in which a warrant can be invalidated, but none of them can happen when they search your place. You can beat the wrap but not the charge.</p>
<p>Whether what police do is legal or not there is basically nothing you can do to prevent a police person from doing whatever they like. They truly are a law upon themselves.</p>


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Answer 6: <p>My understanding is that the police do not have to wait; however, it seems likely that if the police searched your apartment under the auspices of a supermarket receipt, not only would the evidence be inadmissible but you'd have a cause of action for civil damages under Section 1983.</p>


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Answer 7: <p>Jurisdiction: <a href="/questions/tagged/russia" class="post-tag" title="show questions tagged &#39;russia&#39;" aria-label="show questions tagged &#39;russia&#39;" rel="tag" aria-labelledby="tag-russia-tooltip-container">russia</a></p>
<p>A lawyer <strong>can</strong> be present during a search, but does not <strong>have to</strong>, therefore the police are not obliged to wait for one (<a href="https://www.imolin.org/doc/amlid/Russian_Federation_Criminal_Procedure_Code.pdf#page118" rel="nofollow noreferrer">Criminal Procedure Code</a> Article 182).</p>
<p>However, it may well be reasonable not to let the police in even if they are unfriendly and are insisting! Arranging contractors and equipment necessary for breaking into your house might take them much time. Use all of this time to find a lawyer, and open your door at the very moment you hear a hydraulic cutter start! You are unlikely to get any additional charges for that.</p>


Tags: search-and-seizure, warrant


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Question Title: Does it constitute murder if the attempted murder fails but the victim dies anyway as a side effect of the attacker&#39;s actions?

Question Body: <p>For example, suppose an attacker is chasing a victim with a knife and the intention to kill. While running away, the victim falls, hitting their head, and dies.</p>
<p>Assuming there is clear evidence for the the attacker's intentions and how the victim died, can the attacker be charged with or convicted of murder?</p>
<p>I could see them being charged with murder because their actions led to the person's death. But I could also see the charges being limited to attempted murder since the attacker didn't directly cause the victim to fall. Or maybe they would be charged with both attempted murder and manslaughter?</p>
<p>If it varies by state, I will limit this to whether this would constitute murder in Utah or California.</p>


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Answer 1: <p><a href="/questions/tagged/california" class="post-tag" title="show questions tagged &#39;california&#39;" rel="tag">california</a></p>
<h3>You intended to kill them, you killed them, that's murder</h3>
<p>California Penal Code Section 187(a):</p>
<blockquote>
<p>Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.</p>
</blockquote>
<p>California Penal Code Section 188(a)(1):</p>
<blockquote>
<p>Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature.</p>
</blockquote>
<hr />
<p>If this weren't the case, one could nitpick the cause of death almost endlessly.  For instance, what if you stabbed them nearly to death, they were almost saved by a surgeon, but then they died of an infection that they acquired in the hospital?  The law's solution is simple: if you not only killed them, but you also intended to kill them before doing so, that's murder.</p>


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Answer 2: <h2>That’s murder</h2>
<p><a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" rel="tag">new-south-wales</a></p>
<p><em>Crimes Act</em> 1900 <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040#sec.18" rel="noreferrer">s18</a>:</p>
<blockquote>
<p>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.</p>
</blockquote>
<p>The act of chasing the victim with intent to kill caused the death. QED.</p>


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Answer 3: <p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<h2>You're describing a murder</h2>
<p>In English Law, the act of running from an attacker would be entirely within the realms of 'causation' (e.g. the attack caused them to escape) and is explicitly called out in case law as one of the things that an attacker would expect their victim to do in self-defence, hence remaining part of the attacker's responsibility.</p>
<p>Per the <a href="https://www.cps.gov.uk/legal-guidance/homicide-murder-and-manslaughter#_Toc3812578" rel="nofollow noreferrer">CPS (Crown Prosecution Service) guidance on Homicide</a>;</p>
<blockquote>
<p>To break the &quot;chain of causation&quot; an intervening act must be such that


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<blockquote>
<p>To break the &quot;chain of causation&quot; an intervening act must be such that
it becomes the sole cause of the victim's death so as to relieve the
defendant of liability - see R v Wallace (Berlinah) [2018] EWCA Crim
690; R v Kennedy (Simon) [2008] Crim. L.R. 222. Examples of
intervening acts are:<br />
...<br />
An act of the victim if not within the range of response which might be anticipated from a victim in his situation: <a href="https://www.lawteacher.net/cases/r-v-roberts.php" rel="nofollow noreferrer">R v Roberts (1972) 56 Cr App R 95</a> and <a href="https://www.lawteacher.net/cases/r-v-williams-and-davies.php" rel="nofollow noreferrer">R v Williams Davis 1992 CLR 198</a>.</p>
</blockquote>
<p>In both the cases cited above, the victim of a violent assault attempted to flee and were <em><strong>injured during their attempt to escape</strong></em>. The aggressor was deemed to be accountable as this was a <em>predictable chain of causation</em>.</p>


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Answer 4: <p>This will depend upon the legality of your actions so far, and how closely they are related to the death.</p>
<p>For instance, if you were chasing that person with the intent to kidnap them, torture and then kill them, it’s going to be murder because you are committing a crime and they die because of that.</p>
<p>If instead, you called and invited them to your house with the intent to do the same thing, and they get hit by a bus on the way, you haven’t yet committed an illegal act and you are free and clear (albeit disappointed that you didn’t get to torture them first).</p>
<p>So, the key question is going to be did they die as a result of a crime you committed, and how closely that crime was related to their death.</p>


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Answer 5: <p>What you describe could be construed as felony murder in it is a death that happened during the committing of a felony. You were in the process of assaulting the victim and then he slipped and hit his head against a rock and died from that. In some states felony murder carries the death penalty like Nevada for instance. Intentions are pretty clear, you don't chase a person with a knife if you intend to do no harm.</p>


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Answer 6: <p>Also in English Law, the rule is, if you intended serious harm to a person, and a person dies because of it, that's murder.  This definition means that:</p>
<ol>
<li>You didnt need to intend their death. Its enough to prove you intended to do them serious harm, and they died as a result of what you did. That's murder.</li>
<li>It doesnt have to be the same person. If you intended serious harm to person A, but because of your actions a different person B died, thats murder as well.</li>
</ol>
<p>So if you punch someone hard enough, and they fall and die, the question will be whether you knew or should have known it was likely to do &quot;serious harm&quot;, or would do it,  or whether you intended &quot;serious harm&quot;. (Sometimes the courts emphasise the criterion by describing it as &quot;really serious harm&quot; when talking to a jury.)</p>


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<p>Also if you mean to kill, or even &quot;seriously harm&quot;, one person, and a different person dies - a bystander, or wrong victim - dies, thats murder too.</p>
<p>In both cases, the &quot;chain of causation&quot; in Richard's answer is used to decide if the death was, or was not, a result of <strong>your</strong> actions, or resulted legally from some other cause.</p>


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Answer 7: <h2>Also applies to injuries and in tort law. See the <em><a href="https://en.wikipedia.org/wiki/Eggshell_skull" rel="nofollow noreferrer">eggshell skull rule</a></em>.</h2>
<p>Which says that if you intend to do a harm, &quot;the unexpected frailty of the injured person is not a valid defense to the seriousness of any injury caused to them.&quot;</p>
<p>So even if you manage to escape the murder charge, O.J. Simpson style, the victim's family gets another bite at the apple, in civil court. And there, they get to use all the evidence from the criminal trial, <em>but the standard of proof is only &quot;more likely than not&quot; i.e. 51% likely</em>.  Since all the evidence has already been vetted by the criminal court, it is &quot;shooting fish in a barrel&quot; for the civil plaintiffs.</p>


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<p>So you will end up bankrupt and a pauper for the rest of your life, and even worse, you will have to live in Florida if you want to accumulate wealth via home equity, it being the only state that protects unlimited equity in a homestead.  That is why OJ lives there.</p>
<p>&quot;Rest of your life&quot; because bankruptcy doesn't clear liabilities from intentional crimes.</p>
<p>Think about that.  You get in a quarrel with someone and push them against the wall and yell at them, and they have a record of being extremely prudent about COVID precautions so it 51% more likely than not their fatal case came from you... boom, wrongful death.  You could not have imagined they were not vaccinated, nor that you even had COVID.</p>


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Answer 8: <p>In the USA, if you commit a felony, and someone dies as a result, that’s murder.</p>
<p>It doesn’t matter whether you intended to kill them (although you said they did). But it must happen as a foreseeable result. Foreseeable is for example two armed bank robbers committing a felony by robbing a bank, and police shooting one of them, the other is guilty of murder. Foreseeable is if you stab someone with a knife, they are taken to hospital, and they die because of a stupid and negligent act in the hospital. Not foreseeable is if you stab someone, they are taken to hospital in an ambulance, and that ambulance gets hit by a truck and your victim killed. It would be foreseeable if the victim tries to run away, runs into the street without looking or falls over their own feet and gets killed.</p>
<p>It would <em>not</em> be murder if the death was <em>not</em> an intended or unintended result of your felony of attempted murder. Still attempted murder, of course.</p>


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Question Title: Bob dies because Eve chose not to be vaccinated, is this a crime?

Question Body: <p>Bob is a clinically vulnerable adult that has a weak immune system. Eve is one of Bob's friends. Eve has been offered a vaccine for a widely spread and contagious disease that has the potential to kill Bob if he caught it from Eve. Eve does not take this vaccine, as she does not think it will affect her and it goes against her beliefs/morals.</p>
<p>Unfortunately, Eve catches this disease and then passes it on (transmits) it to Bob. As a result, Bob becomes ill and dies. Could Eve be tried for murder, manslaughter, or some other crime, as she chose not to be vaccinated against a disease that she (in-directly) passed on to Bob and killed him?</p>


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Answer 1: <blockquote>
<p>As a result, Bob becomes ill and dies. Could Eve be tried for Murder,
Manslaughter, or some other crime, as she chose not to be vaccinated
against a disease that she (in-directly) passed on to Bob and killed
him?</p>
</blockquote>
<p>There are basically two distinct issues here. What is the duty? And if a duty was breached, what intent is necessary to breach it?</p>
<p>There is not a legal duty to be vaccinated. There is a duty to use reasonable care not to hurt others. The duty not to hurt others could be satisfied by not seeing Bob in person, by wearing a mask around Bob or by having other non-transmission means available, in addition to being vaccinated. But Eve didn't do any of these things.</p>
<p>We don't know if Eve had any reason to think that she presented a risk of infection to Bob because she could have passed the virus to him while she was asymptomatic.</p>


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<p>We don't know if Eve had any reason to think that she presented a risk of infection to Bob because she could have passed the virus to him while she was asymptomatic.</p>
<p>We also know, by the assumption of the question, that Eve was the source of the infection. But, in real life, proving the source of an infection beyond a reasonable doubt is very challenging or impossible. This must be established for any homicide crime.</p>
<p>There is no indication that Eve knew she was transmitting the virus to Bob, or that Eve intended to transmit the virus to Bob (if she intentionally spat in Bob's face intending to infect him that would be a different matter). At most, her conduct was reckless, but if she was asymptotic and has no idea that she was doing something that was actually putting Bob at risk, her intent could be as slight as negligent (for tort law purposes only) or criminally grossly negligent.</p>


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<p>Since she lacked <a href="https://en.wikipedia.org/wiki/Homicide_in_English_law" rel="noreferrer">the necessary intent to commit murder</a> (i.e. either an intention to kill, or an intention to inflict grievous bodily harm), she could not be guilty of the offense of murder.</p>
<p>There are three types of voluntary manslaughter in England, none of which apply here: &quot;There are three types of voluntary manslaughter: that resulting from loss of self-control; that resulting from statutorily defined diminished responsibility; and killing in perseverance of a suicide pact.&quot;</p>


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<p>So, this leaves involuntary manslaughter as the most serious possible homicide offense. Involuntary manslaughter could encompass either reckless conduct (i.e. &quot;the unlawful act must be such that all sober and reasonable people would inevitably recognise it as an act which must subject the other person to at least the risk of some harm resulting therefrom albeit not serious harm&quot;) and is usually in furtherance of some other criminal offense, or in the case of &quot;gross negligence manslaughter&quot;, negligent conduct that is a far greater level of wrongdoing than the negligence that would suffice for civil tort liability.</p>


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<p>Gross negligence manslaughter is the most plausible charge and is itself a hard call that involves judgement and discretion on the part of the trier of fact (i.e. the judge in a bench trial, and the jury in a jury trial) that is exercised on a case by case basis considering all of the circumstances. Also, to be clear, the wrongful act in a gross negligence involuntary manslaughter case would be transmitting the virus (which could have been prevented multiple ways) and not failing to get vaccinated itself.</p>


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Answer 2: <p>For the sake of argumentation, let me use the law from <a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" rel="tag">germany</a> here.</p>
<p>Under the condition, that the illness is a tracked infection under §6 Infektionsschutzgesetz (law for the protection from infections), then they are legally obliged to isolate and enter quarantine. That means, the mere act of meeting Bob would be a violation of law. Among the illnesses on that list are Cholera, Yellow Fever, <em>Variola vera</em> and <em>Yersinia pestis</em> - smallpox and plague. But SARS-COV-2 is also on that list.</p>


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<p>By <em>purposefully</em> meeting anyone <strong>while being under the mandated quarantine or isolation</strong>, Eve not only is to be fined for that (violating the quarantine) but also can be liable for damage to Bob as, according to the law, transmission is foreseeable. However, we can't <em>a priori</em> assume the necessary murder criteria in Germany, so it is possibly better described as Körperverletzung mit Todesfolge (StGB §227 - infliction of bodily harm resulting in death) or negligent homicide (StGB §222). The latter is punishable with up to 5 years or fine, the former with at least 3 years normally and 1 to 10 in lesser cases. However, there might be grounds for trying to go for other unlawful killing statutes, based on the exact pattern.</p>


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Question Title: Does the President really have the absolute right to declassify anything he wants to?


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Question Body: <p>The claim has been made by Donald Trump and many others that the sitting President has the absolute right to declassify any documents he wishes. Leaving aside the issue of what procedure he would have to use or what evidence there would have to be to accept that a particular document was in fact declassified, I'm curious if it's really settled law that he has this power.</p>
<p>I can think of at least two cases where it would seem that he wouldn't have that power:</p>
<ol>


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<p>I can think of at least two cases where it would seem that he wouldn't have that power:</p>
<ol>
<li><p>Congress has declared some information classified, for example information related to nuclear weapons. Is it settled law that Congress has no idependent power to declare something classified such that the President cannot revoke that status? As a co-equal branch that also has national security responsibilities of all kinds, it would seem quite odd to say that Congress needs the President to classify things for it or that the President can revoke a classification that originates with Congress.</p>
</li>


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</li>
<li><p>The Constitution declares treaties ratified by Congress to have the power of Federal law, second only to the Constitution. Many classified documents are classified by the United States because their foreign sources declared them classified and our information sharing treaties require us to respect those designations. Is there really any reason to think the President can unilaterally revoke a classification designation imposed by a foreign power and that United States is obligated to honor by the operation of a treaty that the Constitution makes part of Federal law?</p>
</li>
</ol>


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Answer 1: <p>Congress has passed some laws that enable POTUS (via is branch) to restrict access to certain information. For example <a href="https://www.law.cornell.edu/uscode/text/50/3126" rel="nofollow noreferrer">50 USC 3126</a>, defines classified information to be</p>
<blockquote>
<p>information or material designated and clearly marked or clearly
represented, pursuant to the provisions of a statute or Executive
order (or a regulation or order issued pursuant to a statute or
Executive order), as requiring a specific degree of protection against
unauthorized disclosure for reasons of national security.</p>
</blockquote>
<p>Or, <a href="https://www.law.cornell.edu/uscode/text/50/3164" rel="nofollow noreferrer">50 USC 3164</a> defines it as</p>
<blockquote>
<p>means any information that has been determined pursuant to Executive
Order No. 12356 of April 2, 1982, or successor orders, or the Atomic
Energy Act of 1954 [42 U.S.C. 2011 et seq.], to require protection


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Order No. 12356 of April 2, 1982, or successor orders, or the Atomic
Energy Act of 1954 [42 U.S.C. 2011 et seq.], to require protection
against unauthorized disclosure and that is so designated</p>
</blockquote>
<p>Under existing law, material is classified with a certain statutory authorization (in these instances under Ch. 44 of Title 50, &quot;National Security&quot;), and Congress has given POTUS the sole power to add and subtract documents from the list of &quot;classified&quot; materials. See especially <a href="https://www.law.cornell.edu/uscode/text/50/chapter-44/subchapter-VI" rel="nofollow noreferrer">Subchapter VI</a>.</p>


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<p>Of course, Congress cannot implement these laws themselves, that is the prerogative of the Executive branch (perhaps that is the feature of separation of powers that causes problems for understanding &quot;classification&quot;). In theory, Congress could pass a new law that imposes a special &quot;classification&quot; on a certain kind of document and furthermore limits the president's discretion to impose or remove said classification, they just have not done so yet.</p>


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<p>The real limit on presidential declassification power is the Administrative Procedure Act. POTUS cannot, himself, actually do much except as commander-in-chief, besides order other people to do things. A previous president <a href="https://obamawhitehouse.archives.gov/the-press-office/executive-order-classified-national-security-information" rel="nofollow noreferrer">issued an order</a> that describes what should be done by departments, w.r.t. classified material, but each department then has to devise &quot;rules&quot; which, depending on the rule, have to be put out for public comment. As long as there exists rules (in the Federal Register) that require something more than presidential say-so for classification or declassification, then POTUS cannot unilaterally (de)classify, he also has to follow the rules. Which he can order changed, but there is a procedure that has to be followed.</p>


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Question Title: Belgian inheritance laws valuation date

Question Body: <p>Is the value of a property at the time of deceased used for splitting inheritence or is it the value of the property when sold a later date?</p>


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Answer 1: <p>I only know the relevant law in <a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a> but strongly suspect the law is the same or very similar in Belgium.</p>
<p>The relevant date for the value of an inheritance is the day of the death. For all items in the inheritance the value on that day needs to be estimated and this value is used both for computing an inheritance tax and for computing the size of the inheritance for the different heirs.</p>


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<p>For real estate there should be some formula that uses a square meter price from some official source to compute the value (in German this is called 'Bodenrichtwert' and can be found for example <a href="https://www.berlin.de/gutachterausschuss/marktinformationen/bodenrichtwerte/" rel="nofollow noreferrer">here</a>). Whether you can realize more or less than this price in an actual sale later on is not relevant for the inheritance.</p>
<p>If there is no testament the heirs need to agree amonst each other who gets what. Their respective shares in total value are computed based on the value at the time of death.</p>


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Answer 2: <p>I am in New Zealand. My answer is based on my experience.</p>
<p>My parents-in-law died not so long ago.  To figure out the value of their house, the lawyer said that the house would have to be sold. So, the trustees wanted to sell the house.</p>
<p>But I wanted to buy it for sentimental reasons for my wife.  I asked the beneficiaries to select a valuer.  I offered them the price from the valuation less 2% (agent fees).  And it was accepted.</p>
<p>Note that this was for the purpose of splitting the value of the house.  Of course, the Tax department would probably take the value at the time of death.  But there are no death duties in NZ.</p>


Tags: inheritance, belgium


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Question Title: The Consumer Regulations 2013: limits of applications and &#39;gambling&#39; (UK law)


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Question Body: <p>The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 provides consumers and traders with a number of protections and requirements. Regarding limitations of what this law is applicable to, section 6 states:</p>
<blockquote>
<p>Limits of application: general</p>
<p>6.—(1) These Regulations do not apply to a contract, to the extent that it is— (a)for— (i)gambling within the meaning of the Gambling Act
2005(1) (which includes gaming, betting and participating in a
lottery)</p>
</blockquote>


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2005(1) (which includes gaming, betting and participating in a
lottery)</p>
</blockquote>
<p>To me it seems that this law contains a number of provisions which may be relevant in dealings between gambling operators and their customers and that aren't in themselves strictly forms of 'gambling'. For example, section 10 (regarding what traders must do to inform customers before entering into a contract) could apply to customers singing up with the operator (?), or section 40 regarding additional charges made to a customer without to prior consent could apply to charging customers for services and charging for their telephone help line, etc.</p>


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<p>Does section 6(1)(i) mean in effect that none of this law's provisions are applicable to dealings between gambling operators and customers, or rather that the law is generally applicable in such contexts but is not applicable with regards to how its provisions might apply to gambling in the narrower sense of the act of placing bets, playing casino games, or playing one of their lotteries (for example, the information which must be made available to a customer before placing bets, playing such games, etc)?</p>


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Answer 1: <h2>They do not apply at all to gambling</h2>
<p>Gambling is instead regulated under the <a href="https://www.legislation.gov.uk/ukpga/2005/19/contents" rel="nofollow noreferrer">Gambling Act 2005</a>.</p>


Tags: england-and-wales, consumer-protection, gambling


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Question Title: Contract Law: Sale by Auction; Undeclared Reserve Price

Question Body: <p>What is the correct position: during an auction, the Auctioneer accepted a bid but when the client returned to pick up the sold item, the Auctioneer declined to get the money saying the accepted price was fall below the reserve price. Can the bidder who won sue for breach of contract?</p>
<p>NB: The Auctioneer did not mention that there was a reserve price on the item.</p>


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Answer 1: <p>Generally, the bids are the offer which the auctioneer may, but is not bound to, accept. (<em>Chitty on Contracts</em>, § 4-025). Many Sale of Goods Acts specify that the &quot;<strong>sale is complete when the auctioneer announces its completion by the fall of a hammer</strong>&quot; (see <a href="https://www.ontario.ca/laws/statute/90s01#BK60" rel="nofollow noreferrer">Ontario's Sale of Goods Act</a>; see also <em>Chitty on Contracts</em>, § 4-025). If the auctioneer is not going to accept the bid, the auctioneer may withdraw the lot.</p>
<p>If the property is put up for auction <em>subject to a reserve price</em>, no contract is formed if the auctioneer mistakingly purports to accept a bid lower than the reserve price (<em>Chitty on Contract</em>, § 4-026).</p>
<p>Any after-the-fact declaration of the existence of a reserve bid has no bearing on the formation of the contract.</p>


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<p>Any after-the-fact declaration of the existence of a reserve bid has no bearing on the formation of the contract.</p>
<p><strong>The only thing that matters is whether the property <em>is put to auction</em> subject to a reserve price</strong>.</p>
<ul>
<li>If it <em>is not put up subject to a reserve price</em>, then the contract for sale is formed with the highest bidder when the auctioneer announces the completion of the auction.</li>
<li>If the property <em>is put up subject to a reserve price</em>, then no contract is formed, even where there is purported acceptance by the auctioneer.</li>
</ul>


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Question Title: What counts as a medical facility?

Question Body: <p>A certain POA for medical document gives an adult son the right to move his parent to medical facility. Would a assisted living place count as a medical facility?</p>
<p>Is there a precise legal definition of a medical facility?</p>


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Answer 1: <p>This is a logical thing to ask but somewhat misses the point as described below, because a POA doesn't really give the adult son &quot;<strong>the right</strong> to move his parent to medical facility&quot; in the ordinary sense of that word.</p>
<blockquote>
<p>Is there a precise legal definition of a medical facility?</p>
</blockquote>
<p>Not usually, in the context of interpreting a power of attorney, unless the document itself defines it.</p>
<blockquote>
<p>Would a assisted living place count as a medical facility?</p>
</blockquote>
<p>This could go either way but often it doesn't matter much because it is mitigated by the next point, and because there is usually also a non-medical durable power of attorney put in place at the same time that would give the agent or a different agent the authority to take steps necessary to move the principal (the parent in this case) to a non-medical facility like a new apartment or home.</p>
<blockquote>


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<blockquote>
<p>A certain POA for medical document gives an adult son the right to
move his parent to medical facility.</p>
</blockquote>
<p>This somewhat overstates what a POA does. A POA gives an agent under the POA (the adult son in this case) the authority to take action to make something happen. But a POA does not give the agent the authority for make the parent do anything if the principal (the parent in this case) is conscious and capable of expressing a contrary opinion and a POA also does not give the agent the power to prohibit the principal from doing anything.</p>
<p>Only a guardian of the person who is suffering from some condition has the authority to act over the objections of that person. Action with a POA requires the non-objection of the principal because the principal is silent or incapable of communicating any objections.</p>


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<p>Normally, someone well enough to be placed in an assisted living facility has enough capacity to object to the placement and override the agent if that person is unhappy with a decision that the agent is making under the POA. This can be done on a case by case basis, or by revoking the POA entirely.</p>


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Answer 2: <p>At the federal level, the Public Health Service Act <a href="https://www.ecfr.gov/current/title-42/chapter-I/subchapter-A/part-5/section-5.2#p-5.2(Medical%20facility)" rel="nofollow noreferrer">42 CFR 5.2</a> states:</p>
<blockquote>
<p>Medical facility means a facility for the delivery of health services and includes:</p>
<ul>
<li>(1) A community health center, public health center, outpatient medical facility, or community mental health center;</li>
<li>(2) a hospital, State mental hospital, facility for long-term care, or rehabilitation facility;</li>
<li>(3) a migrant health center or an Indian Health service facility;</li>
<li>(4) a facility for delivery of health  services to inmates in a U.S. penal or correctional institution (under section 323 of the Act) or a State correctional institution;</li>


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<li>(4) a facility for delivery of health  services to inmates in a U.S. penal or correctional institution (under section 323 of the Act) or a State correctional institution;</li>
<li>(5) a Public Health Service medical facility (used in connection with the delivery of health services under section 320, 321, 322, 324, 325, or 326 of the Act);</li>
<li>or (6) any other Federal medical facility</li>
</ul>
</blockquote>
<hr />
<p>At the state level, <a href="https://casetext.com/statute/new-jersey-statutes/title-26-health-and-vital-statistics/chapter-262h-declaration-of-public-policy/section-262h-2-definitions" rel="nofollow noreferrer">N.J. Stat. § 26:2H-2</a> :</p>
<blockquote>


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<p>a. &quot;Health care facility&quot; means the facility or institution, whether public or private, that is engaged principally in providing services for health maintenance organizations, diagnosis, or treatment of human disease, pain, injury, deformity, or physical condition, including, but not limited to, a general hospital, special hospital, mental hospital, public health center, diagnostic center, treatment center, rehabilitation center, extended care facility, skilled nursing home, nursing home, intermediate care facility, tuberculosis hospital, chronic disease hospital, maternity hospital, outpatient clinic, dispensary, home health care agency, residential health care facility, dementia care home, and bioanalytical laboratory (except as specifically excluded hereunder), or central services facility serving one or more such institutions but excluding institutions that provide healing solely by prayer and excluding such bioanalytical laboratories as are independently owned and


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services facility serving one or more such institutions but excluding institutions that provide healing solely by prayer and excluding such bioanalytical laboratories as are independently owned and operated, and are not owned, operated, managed, or controlled, in whole or in part, directly or indirectly by any one or more health care facilities, and the predominant source of business of which is not by contract with health care facilities within the State of New Jersey and which solicit or accept specimens and operate predominantly in interstate commerce.</p>


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Question Title: Home Self Defense: Sweden

Question Body: <p>So I am reading a fictional book, that takes place in Sweden, and there is a situation presented that strike me as implausible.</p>

<p>A female character is being "stalked" by another character, and received emails suggesting violence and also had her property damaged.  Also she had proof that someone entered her home when she was not home and stole things.  Presumably the stalker. </p>

<p>In response, this character then sought to arm herself, in her home, with golf clubs in various parts of the house.  The thought was in case of another forced entry she could bash the guy over the head with a golf club.</p>

<p>Instead she was encouraged to have armed security because if she killed the intruder, under Swedish law, she could very well be charged with manslaughter, and possibly murder if it could be proved that she placed the golf clubs around the house ahead of time.</p>


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<p>Is this true in Sweden?  Can a person be convicted of manslaughter or murder if they kill an intruder that they suspect of ill intent?</p>

<p>The situation seemed implausible to me, and that the author kind of flubbed this one.</p>


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Answer 1: <h1>There are problems with the claims.</h1>
<p>In summary: someone that in Sweden acts to defend themselves while &quot;in peril&quot; when subjected to — or are in imminent risk of — a criminal attack, will not the convicted, unless the act is &quot;blatantly unjustifiable&quot;.</p>
<hr />
<h2>Context</h2>
<p>We have a problem here in Sweden with people being ill-informed about the right to self-defence, and this is compounded by people with opinions spreading myths about it. Often these myths err on the side of claiming you have less rights than you really have.</p>
<p>So, two things before we go on...</p>
<ol>
<li>The characters may have been unreliable. Do not ever assume that just because a character says something in a work of fiction, that the character is meant to know what they are talking about.</li>
</ol>
<p>And even if they are meant to know what they are talking about...</p>
<ol start="2">


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</ol>
<p>And even if they are meant to know what they are talking about...</p>
<ol start="2">
<li>The author may have been unreliable, and done their homework poorly.</li>
</ol>
<p>Keep this in mind...</p>
<p>That said, the right to self-defence is not infinite.</p>
<h2>The law</h2>
<p>According to the Swedish Criminal Code (Brottsbalk, 1962:700), Chapter 3, §§ 1-2 and 6...</p>
<ul>
<li>If you intentionally kill someone, you get convicted of &quot;murder&quot;</li>
<li>If you intentionally kill someone, but there were mitigating circumstances, you get convicted of &quot;manslaughter&quot;</li>
<li>If you act in reckless disregard for the risk your actions are causing, and this leads to the death of someone, you get convicted of &quot;causing the death of another&quot;, or what we here can call &quot;reckless killing&quot;</li>
</ul>


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</ul>
<p>And Swedish Criminal Code (Brottsbalk, 1962:700), Chapter 24, § 1 states that an act performed in &quot;peril&quot; shall only lead to a conviction if the act was &quot;blatantly unjustifiable&quot;.</p>
<p>&quot;Peril&quot; is enumerated to exist in cases of...</p>
<ul>
<li>A commenced or imminent criminal attack on person or property</li>
<li>A person has gained or trying to gain unauthorized access to a room, house, yard or ship</li>
<li>A person refuses to leave a domicile after being told to</li>
<li>If — when caught red-handed — a person uses violence or threats of violence to resist stolen property from being retaken</li>
</ul>
<p>When judging whether an act is &quot;blatantly unjustifiable&quot;, the prosecutor must look at...</p>
<ul>
<li>the nature of the attack that caused the peril</li>
<li>the significance of that which the attack was aimed at (such as a human life)</li>
<li>other significant circumstances</li>
</ul>


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<ul>
<li>the nature of the attack that caused the peril</li>
<li>the significance of that which the attack was aimed at (such as a human life)</li>
<li>other significant circumstances</li>
</ul>
<p>That last bit is interesting because it takes human psychology into consideration, and let the <em>defendant's assessment of the peril</em> be the standard by which the act is judged.</p>
<hr />
<h2>The claim</h2>
<p>Let us start with the easy bit first...</p>
<blockquote>
<p>&quot;if she killed the intruder, under Swedish law, she could very well be
charged with manslaughter, and possibly murder if it could be proved
that she placed the golf clubs around the house ahead of time.&quot;</p>
</blockquote>


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charged with manslaughter, and possibly murder if it could be proved
that she placed the golf clubs around the house ahead of time.&quot;</p>
</blockquote>
<p>Murder? No. According to the Swedish Criminal Code (Brottsbalk, 1962:700), Chapter 3, §§ 1-2, a person that kills an intruder in their home could at the most be charged with manslaughter, because there are <em>mitigating circumstances</em>, i.e. the person felt threatened and there was a home invasion in progress.</p>
<p>In order for this to become murder, she would more or less have to have <em>invited</em> the assailant or in any other way drawn them in with the intent to kill them.</p>
<p>Yes, she prepared to defend herself or a <em>potential</em> intrusion, but without knowing for certain that the assailant would come at certain time or at least a certain day, any kind of premeditation towards killing is more or less impossible to prove.</p>


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<p>With this, murder is off the table. That claim is simply wrong. Whether it is the author or the character that is erring, I cannot say.</p>
<p>So, manslaughter then, or the even lesser degree, called &quot;causing the death of another&quot;, or reckless killing.</p>
<p>Manslaughter would come up of she — when whacking them with the club — did so with the <em>intent</em> of killing them.</p>
<p>The operative word here being intent. The prosecutor has to prove that intent.</p>
<p>Sure, we can dream up scenarios where this is the case; the classic reason for why people do get convicted even acting in peril is when they keep harming the assailant after the danger has passed.</p>
<p>But — again — just <em>preparing</em> for a <em>potential</em> intrusion is not enough to prove that intent.</p>


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<p>But — again — just <em>preparing</em> for a <em>potential</em> intrusion is not enough to prove that intent.</p>
<p>Finally, reckless killing. This is where such cases usually ends up. And — again — this usually happens because the defendant did something when the danger has obviously passed; the criminal attack was no longer imminent but <em>passed</em>.</p>
<hr />
<h2>Conclusion</h2>
<p>Unless the protagonist in question had set up lethal <em>traps</em>; unless they had foreknowledge of an attack; unless they invited the assailant in with the intent to kill them; unless they fend off the attack and gets themselves into a perfectly safe situation and <em>then</em> proceeds to beat the assailant to death; and unless all of this can be proved, then it cannot become murder.</p>


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<p>Manslaughter or reckless killing, yes, there will be an <em>investigation</em> for that, but from the description of the situation — the protagonist fearing the assailant is dangerous and means them harm — preparing a home defence with strategically placed golf clubs does not in any way preclude the prosecution being dismissed as justifiable self-defence.</p>
<p>Only(!) if the home invasion was obviously harmless, and/or the protagonist keeps harming the assailant after the home invasion has been staved off / neutralised, can a conviction for manslaughter or reckless killing become a possibility.</p>
<hr />
<h2>Summary</h2>
<p>Yes, in Sweden a prosecutor will look at the case when you kill someone.</p>
<p>But — no — in the situation described, a home invasion by someone perceived as wanting to cause harm, this is very unlikely to become &quot;murder&quot;, for lack of premeditation.</p>


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<p>But — no — in the situation described, a home invasion by someone perceived as wanting to cause harm, this is very unlikely to become &quot;murder&quot;, for lack of premeditation.</p>
<p>The remaining possible charges — manslaughter or reckless killing — will only result in a conviction if the situation was obviously and provably harmless in the eyes of the defendant, and they still killed the assailant.</p>


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Answer 2: <p>It certainly makes a claim of <a href="https://en.wikipedia.org/wiki/Self-defense_(Sweden)" rel="nofollow noreferrer">self-defence</a> harder to justify.</p>

<blockquote>
  <p>In Sweden, the law of self-defense (Swedish: nödvärn) allows a person attacked to excuse or justify a proportionate use of violence in defense of the person or property.</p>
</blockquote>

<p>The criteria is if the force used was "blatantly unjustifiable". By placing golf clubs the stalking victim is preparing to respond with violence to a threat which is not immanent. </p>

<p>There are other things she could do instead. Like, engaging a security guard. Or putting  screens on the windows and deadlocks on the doors. Or having a friend stay over, Or telling the police.</p>


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<p>She is certainly at risk of invalidating a self-defense claim. Putting the golf clubs around the house indicates that she is <em>planning</em> to use (potentially deadly) violence in response to an attack rather than reacting with violence proportionate to the threat in the moment. You cannot use deadly force to prevent a break-in or a theft - only to protect a life.</p>


Answer 3: <p>as someone that lives in Sweden even tho i am not very knowledgeable about the law outside of the common scenes and such but i do know that planning on violence will not be the problem but rather using excessive violence than necessary, ex you can punch someone unconscious but continue will cause you to be charged to, hitting them wont be the problem but rather hitting them before they hit you or hitting them when you know they wont/cant attack back will be on your hands. maybe a little bit late but hope this helps</p>
<p>ps sorry for my english</p>


Tags: self-defense, sweden


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Question Title: Does the guilt of the victim affect the validity of a crime of passion

Question Body: <p>I just watched the movie 'A Time To Kill'. If you don't know it, it is about the trial of a man who kills the 2 men that violently raped and assulted his daughter. In the end, he was found innocent by reason of temporary insanity. My question is, in an almost identical case, where the same circumstances apply and the perpetrator is proven to have experienced a moment of temporary insanity due sheer rage and extreme emotional distress; would the outcome of the trial be affected if in the course of the trial it was proven that the person killed was not in fact the one that commited this rape? Or would it only matter that the perpetrator believed he did?</p>


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Answer 1: <p>I assume you mean to ask whether the guilt of the victim affects the validity of a crime-of-passion <em>defence</em>.</p>
<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<p>In Canada, the only crime-of-passion type defence is provocation, today codified at <a href="https://laws-lois.justice.gc.ca/eng/acts/C-46/section-232.html" rel="noreferrer">s. 232 of the <em>Criminal Code</em></a>. Provocation is only relevant to a count of murder. If the person who committed what would otherwise be murder &quot;did so in the heat of passion caused by sudden provocation,&quot; then the conviction is reduced to manslaughter.</p>
<h3>Current codified defence: victim must have done something that would be an indictable offence punishable by five or more years of imprisonment</h3>


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<h3>Current codified defence: victim must have done something that would be an indictable offence punishable by five or more years of imprisonment</h3>
<p>One of the statutory requirements for a successful provocation defence is that the victim must have conducted themselves in a way that &quot;would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment.&quot; <strong>This is an objective element of the defence, not dependent on the perception of the accused</strong>.</p>
<p>One court has found this limitation to the defence to be unconstitutional (<a href="https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc531/2019bcsc531.html" rel="noreferrer"><em>R. v Simard</em>, 2019 BCSC 531</a>). However that court would still require that the &quot;<em>conduct of the victim</em> [to be] of such a nature as to be sufficient to deprive an ordinary person of the power of self-control...&quot;</p>


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<h3>The common law and the previous codified defence also required provocative conduct by the victim</h3>
<p>Both the common law and the pre-2015 codification of the provcation defence required that <em>the victim's provocative conduct</em> be &quot;of such a nature as to be sufficient to deprive an ordinary person of the power of self-control&quot; (<em>R. v. Cairney</em>, 2013 SCC 55 at <a href="https://canlii.ca/t/g1nzp#par24" rel="noreferrer">paragraphs 24-35</a>).</p>
<h3>Burdens for establishing this defence</h3>


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<h3>Burdens for establishing this defence</h3>
<p>The provocation defence is an &quot;air of reality&quot; defence (<a href="https://www.canlii.org/en/ca/scc/doc/2002/2002scc29/2002scc29.html" rel="noreferrer"><em>R. v. Cinous</em>, 2002 SCC 29, paragraph 57</a>). This means that there is an initial evidential burden on the accused. There must be evidence on the record that, if believed, <em>could</em> lead a reasonable properly instructed jury to acquit (or, in the case of provocation, to convict of manslaughter instead of murder). Once the accused meets this burden, then the defence is properly in play and will be successful unless the Crown disproves any element of the defence beyond a reasonable doubt.</p>


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Answer 2: <h2>The provocation must have come from the deceased</h2>
<p><a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" aria-label="show questions tagged &#39;new-south-wales&#39;" rel="tag" aria-labelledby="tag-new-south-wales-tooltip-container">new-south-wales</a></p>
<p>Under <a href="http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s23.html" rel="nofollow noreferrer">s23</a> of the <em>Crimes Act</em> 1900, extreme provocation is a partial defence for murder resulting in a manslaughter conviction instead.</p>
<p>It requires:</p>
<ol>
<li>The accused to act on the conduct of the <em>deceased</em></li>
<li>The <em>deceased’s</em> conduct to be a serious indictable offence</li>
<li>The conduct of the <em>deceased</em> causing loss of control by the accused</li>
<li>The <em>deceased’s</em> conduct to be such that it could cause an ordinary person to lose control.</li>
</ol>


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<li>The conduct of the <em>deceased</em> causing loss of control by the accused</li>
<li>The <em>deceased’s</em> conduct to be such that it could cause an ordinary person to lose control.</li>
</ol>
<p>The deceased is key to this - if the deceased didn’t do these things, the defence is not available.</p>


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Answer 3: <p>In most U.S. jurisdictions, there is a &quot;crime of passion&quot; defense which is an incomplete defense to a murder charge that reduced the charged crime of murder to a lesser offense if the defense is successful.</p>
<p>The crime of passion defense is based upon the effect of what the killer has seen the person killed doing on the person committing the offense.</p>
<p>For example, the classic crime of passion defense reduces from murder to manslaughter a killing done in the immediate passion of catching a man and the perpetrator's wife in the act of committing adultery.</p>


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<p>But, this defense would not be defeated in this classic case, if, for example, the killer believed that the man was committing adultery with his wife when in fact he was having consensual sex with another women who looked similar to his wife and he couldn't tell the different due to darkness and generally poor visibility, and the mistake of fact about what was happening was reasonable under the circumstances.</p>
<p>For example, a mistake of fact might be reasonable for this purpose if the killer has circumstantial, but incorrect, evidence that led him to believe that the person he killed was committing adultery with his wife, which made his misperception of who the woman was seem reasonable and the woman was quite similar in appearance to his wife in a place where his wife and not another woman was expected to be, like his own bedroom.</p>


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<p>So, the crime of passion defense could still be applied in a case involving a victim who was not actually doing what the factually mistaken perpetrator believed the victim to be doing in most U.S. jurisdictions.</p>
<blockquote>
<p>My question is, in an almost identical case, where the same
circumstances apply and the perpetrator is proven to have experienced
a moment of temporary insanity due sheer rage and extreme emotional
distress; would the outcome of the trial be affected if in the course
of the trial it was proven that the person killed was not in fact the
one that commited this rape? Or would it only matter that the
perpetrator believed he did?</p>
</blockquote>
<p>The heat of passion defense is only available when when in provoked or incited by something you immediately see without time for reflection afterwards.</p>


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</blockquote>
<p>The heat of passion defense is only available when when in provoked or incited by something you immediately see without time for reflection afterwards.</p>
<p>Vigilante justice that does not involve a victim in the act of committing what appears to be provocation, is not eligible for the heat of passion defense and almost never constitutes &quot;temporary insanity.&quot; Indeed, usually vigilante justice will usually constitute first degree murder since it is premeditated.</p>
<p>Temporary insanity, when it applies, would generally involve, for example, an act committed while involuntarily (and sometimes unknowingly) intoxicated with a hallucinogenic substance, or an equivalent effect from a curable infection (e.g. acute Lyme disease can have this effect before it is treated), in circumstances that prevented someone from realizing that their conduct was wrong.</p>


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<p>For example, if some gives someone LSD unknowingly and as a result the person who has been drugged perceives someone at their door to be an armed killer preparing to shoot, when the victim is actually a child delivering their newspaper, that would be temporary insanity.</p>
<p>Mercy given to a killer who was morally justified in punishing a criminal but did not catch the person in the act, is the sole province of the prosecutor in deciding what charges to pursue, and of the person with commutation or pardon power in the jurisdiction, not the judge or jury in the guilt or innocence phase of a criminal trial.</p>


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<p>A judge in a criminal trial after a guilty verdict is imposed could, however, consider these kinds of facts when imposing a sentence within the range allowed by statute for the offense in question as mitigating factors. <em>See, e.g.</em>, the case of <a href="https://www.washingtonpost.com/nation/2022/09/13/pieper-lewis-sentencing/" rel="nofollow noreferrer">Pieper Lewis</a> who was convicted of murder but given a probation sentence.</p>


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<p>For example, there have been a number of recent cases of women who killed men who were raping them or holding them in sexual servitude, not in the &quot;heat of passion&quot; and not using self-defense in that given moment from an assault on these women that was in progress, who were convicted and sentenced to long prison terms for murder, who then had their sentences commuted based upon these considerations (typically after having already served many years in prison). <em>See, e.g.</em>, the cases of <a href="https://www.nbcnews.com/news/crime-courts/cyntoia-brown-behind-bars-16-scheduled-walk-free-what-we-n1038231" rel="nofollow noreferrer">Cyntoia Brown</a> (life sentence commuted after 15 years) and <a href="https://kansasreflector.com/2023/02/10/kansas-woman-who-killed-her-rapist-faces-long-odds-for-clemency/" rel="nofollow noreferrer">Sarah Gonzales-McLinn</a> (clemency not granted).</p>


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<p>One could also make a bogus and legally insufficient to win (but sufficiently supported by the evidence to argue) claim in a jury trial that also demonstrates that justifying circumstances in the hope that the jury, while not actually believing the bogus defense, will engage in jury nullification and acquit the defendant because they think a conviction would be inappropriate in these circumstances, despite what the law in the jury instructions says. This is perhaps the best way to explain the verdict in <em>A Time to Kill</em>.</p>


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Question Title: Is there a definition/test for &quot;lack of merit&quot; (legal arguments)?

Question Body: <p>Say in <em>Bob v Rob</em> there is a legal argument about how the law applies to a certain factual situation.</p>
<p>Bob interprets/applies the applicable law one way. Rob — a different way. Both sound reasonably serious and well-thought, not frivolous. Both require analysis to accept or reject.</p>
<p>The judge has to make a choice and makes it, accepting Bob's interpretation and rejecting Rob's.</p>
<p>Does that make up an objective ground to label Rob's argument meritless? Can the finding of lack of merit in situations like this be objective in principle?</p>
<p>Or does &quot;lack or merit&quot; refer to something clearly fallacious i.e. straightforwardly identifiable as not holding water without analysis?</p>


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Answer 1: <p>In <a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a>, an illuminating judgement of the Court of Appeal explores the relationship between such terms as &quot;bound to fail&quot;, &quot;not arguable&quot;, &quot;no rational basis&quot;, &quot;unfounded&quot;, &quot;misconcieved&quot;, &quot;hopeless&quot;, &quot;totally without merit&quot;, and &quot;no realistic prospect of success&quot;; <a href="http://www.bailii.org/ew/cases/EWCA/Civ/2016/82.html" rel="noreferrer"><em>Wasif v Secretary of State for the Home Department</em> [2016] EWCA Civ 82</a>. This arose in the context of a judicial review application, where procedural rules allow some claims to be rejected at an early stage, rather than proceeding to a full hearing.</p>


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<p>The normal course is that the claimant (the person who objects to a decision the government has made) will file papers with the court describing their claim. If the judge deems their case &quot;arguable&quot;, then it can carry on, ultimately with the judge deciding who is right. If not, then there can be a &quot;renewal hearing&quot;, where the applicant can explain their case orally, in the hope of persuading the judge that their case is arguable after all. But if the judge says the case, on the basis of the written material, is &quot;totally without merit&quot;, then there is no renewal hearing, and we are done. The claimant could file a fresh case, if the judge's reasons for denial gave them enough clues about what might be arguable instead, or can appeal the finding. Evidently, then, some points can be not arguable, but also not totally without merit.</p>
<p>In <em>Wasif</em>, the court differentiated between (paras 15ff):</p>
<ol>


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<p>In <em>Wasif</em>, the court differentiated between (paras 15ff):</p>
<ol>
<li>Cases where the judge &quot;can see no rational basis on which the claim could succeed&quot; are certainly bound to fail, and a hearing would be pointless; they are totally without merit.</li>
<li>Cases which contain a rational argument, but the judge &quot;is confident that, even taking the case at its highest, it is wrong&quot;. Notwithstanding the judge's confidence, it is possible that his mind could be changed if an oral hearing took place, so these should not be deemed to be totally without merit. They are described as &quot;not arguable&quot; at this stage, but the claimant gets to argue that they are arguable.</li>
</ol>
<p>The decision is one involving, well, <em>judgement</em>, and is not totally precise, but the experienced judges in <em>Wasif</em> felt that it was a realistic distinction in practice.</p>


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</ol>
<p>The decision is one involving, well, <em>judgement</em>, and is not totally precise, but the experienced judges in <em>Wasif</em> felt that it was a realistic distinction in practice.</p>
<p>The court points out (17(3) and (5)) that a hearing gives the claimant the chance to address specific issues the judge has noted, especially when they are self-represented and their documents are not well-prepared. In those instances, the judge might be able to spot an actual arguable claim lurking in the material, and &quot;the correct course&quot; could be to refuse permission but allow an oral hearing so that the real issue can be drawn out.</p>


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<p>What we can see from this is that a point might be &quot;not arguable&quot; (the judge thinks it is plainly wrong), but still have some level of merit at that stage (the judge is willing to let the claimant address his objections). When the judge comes to deliver his opinion at the very end, he might still say that a particular point is without merit (he has heard all about it and thinks it is completely wrong) even if he'd conceded earlier that the claimant deserved a chance to present it.</p>


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<p>Not all arguments that fail are described as &quot;without merit&quot;. If Bob prevails in <em>Bob v Rob</em> it does not follow that all of Rob's points were hopeless. Judges can deploy colourful opprobrium but are just as likely to recognize that some arguments are strong, even when the opposing argument was stronger. Equally, a judge might decide that neither Bob nor Rob is completely correct, and the real answer is some other position - even when they both presented reasonable arguments that were worth hearing.</p>


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Answer 2: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<p>Saying that a case had a &quot;lack of merit&quot; does not have an unambiguously clear meaning. It can be used in different contexts with different meanings:</p>
<ul>
<li>Colloquially, it could just mean that a party ultimately lost the case</li>
<li>A judge might say this after their analysis to announce that they are rejecting an argument</li>


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<ul>
<li>Colloquially, it could just mean that a party ultimately lost the case</li>
<li>A judge might say this after their analysis to announce that they are rejecting an argument</li>
<li>Courts of Appeal often look to whether an appeal has merit when deciding whether to grant an extension of time (&quot;An assessment of the merits of the appeal is relevant to a decision about whether to grant an extension of time ... the relevance is confined to the question of whether the appeal is bound to fail just as it is on the question of striking out an appeal as being vexatious, frivolous, or entirely without merit&quot;: <a href="https://canlii.ca/t/210t2#par34" rel="nofollow noreferrer"><em>Davies v. C.I.B.C.</em> (1987), 15 B.C.L.R. (2d) 256 (B.C.C.A.)</a>)</li>


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<li>It might be used to describe a claim that is summarily dismissed or a successful motion to strike (&quot;assuming that the facts as stated in the statement of claim can be proved, is it 'plain and obvious' that the plaintiff's statement of claim discloses no reasonable cause of action?&quot;: <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/657/index.do" rel="nofollow noreferrer"><em>Hunt v. Carey Canada Inc</em>, [1990] 2 S.C.R. 959</a>)</li>
<li>It might be used to describe vexatious litigation (&quot;where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious&quot;: <a href="https://canlii.ca/t/j2ckk#par23" rel="nofollow noreferrer"><em>Grosz v. Guo</em>, 2019 BCSC 1545</a>)</li>
</ul>
<p>(I have tried to list those in increasing order of &quot;severity,&quot; but that is just my own ordering, and the latter three are very similar.)</p>


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Answer 3: <p>&quot;Lack of merit&quot; means that someone is concluding that the argument shouldn't win.</p>
<p>&quot;Frivolous&quot; is the word for a legal argument that has no basis in law or in a reasonable argument for an extension of or change to the case law interpreting the applicable law.</p>


Tags: definition, interpretation


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Question Title: Can a trial court create precedent?

Question Body: <p>It has been said that &quot;<a href="https://law.stackexchange.com/questions/92808/does-the-guilt-of-the-victim-affect-the-validity-of-a-crime-of-passion#comment212119_92808">trial courts do not create precedent</a>.&quot; Can a trial court create precedent?</p>


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Answer 1: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>


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<p>Yes, trial courts can set precedent on questions of law. See generally <a href="https://www.canlii.org/en/ca/scc/doc/2022/2022scc19/2022scc19.html" rel="nofollow noreferrer"><em>R. v. Sullivan</em>, 2022 SCC 19</a> and <a href="https://www.canlii.org/en/bc/bcsc/doc/1954/1954canlii253/1954canlii253.html" rel="nofollow noreferrer"><em>Re Hansard Spruce Mills</em>, [1954] 4 D.L.R. 590 (B.C.S.C.)</a>. Trial judges of coordinate jurisdiction are bound by the ordinary principles of <em>horizontal</em> <em>stare decisis</em> to follow prior judgments made by other trial judges of the same court (subject to limited exceptions). See <em>Sullivan</em>, paragraphs <a href="https://canlii.ca/t/jp64b#par44" rel="nofollow noreferrer">44</a> and <a href="https://canlii.ca/t/jp64b#par75" rel="nofollow noreferrer">75</a>:</p>
<blockquote>


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<blockquote>
<p>[44] A superior court judge in first instance [i.e. a trial court] should follow prior decisions made by their own court on all questions of law, including questions of constitutional law, unless one or more of the exceptions in <em>Spruce Mills</em> are met.</p>
</blockquote>
<blockquote>
<p>[75] The principle of judicial comity — that judges treat fellow judges’ decisions with courtesy and consideration — as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteria are met. Correctly stated and applied, the Spruce Mills criteria strike the appropriate balance between the competing demands of certainty, correctness and the even-handed development of the law. Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances:</p>
<ol>


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<ol>
<li>The rationale of an earlier decision has been undermined by subsequent appellate decisions;</li>
<li>The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or</li>
<li>The earlier decision was not fully considered, e.g. taken in exigent circumstances.</li>
</ol>
</blockquote>


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Answer 2: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>Generally speaking, a trial court ruling does not create a legally binding precedent in the United States. A court's rulings are only binding on courts that appeal their decisions to that court.</p>
<p>Unlike Canada, court in the United States do not generally observe
&quot;horizontal <em>stare decisis</em>&quot;. It isn't uncommon in the U.S. (in both the state and in the federal court systems) for different judges in the same trial court to rule differently on a legal issue upon which there is no binding appellate precedent.</p>


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<p>This said, a well reasoned unofficially reported order of a trial court, usually, but not always, a federal court, reported in West's Federal Supplement Reporter, can be a persuasive precedent that informs another court's ruling on the strength of its reasoning and analysis from a presumptively impartial person, rather than because the principle of <em>stare decisis</em> (which is the rule that courts must follow precedents when they apply) binds or limits the court.</p>
<p>Trial court rulings are particularly commonly referred to in interlocutory matters like discovery disputes or bankruptcy procedures that are difficult or impossible to obtain appellate review of, to provide guidance for reasonableness in matters reviewed for abuse of discretion (like attorney fees awards), and to gain insight into rarely litigated statutes, and to gain insight into newly enacted legislation for which not enough time has passed for any binding appellate authority to exist.</p>


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<p>Also, while it is not precedent, the doctrines of <em>res judicata</em> and <em>collateral estoppel</em> (a.k.a. &quot;claim preclusion&quot; and &quot;issue preclusion&quot;) prevent re-litigation of disputes and legal issues between parties to a previous case in which they are someone legally related to them was involved.</p>
<p>For example, if NATIONAL CORPORATION loses a products liability lawsuit in a case against INJURED CONSUMER, in a case that is reduced to a &quot;final judgment&quot; on the grounds that the product they made had a defective design, the defective design ruling is binding against NATIONAL CORPORATION in a lawsuit against SECOND INJURED CONSUMER who must still, of course, prove that the defective design caused their particular injury. This could make the case of SECOND INJURED CONSUMER much easier to win.</p>


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Question Body: <p>Is there a maximum sentence that a New Jersey Superior Court Judge can impose on someone for contempt of court?</p>
<p>I understand that there are different types of contempt of court, so here's a made-up example to illustrate the question.</p>
<blockquote>
<p>Suppose person X (New Jersey resident) is ordered via subpoena to produce the key to a safe. (Suppose here that the safe is otherwise impenetrable without a key.) X admits that he has a key, but refuses to produce it. The judge threatens X with jail time until X produces the key. X continues to refuse. X is arrested and thrown in jail.</p>
</blockquote>
<p>At this point, would there be any limit on how long the judge could keep X in jail?</p>


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</blockquote>
<p>At this point, would there be any limit on how long the judge could keep X in jail?</p>
<p>I have looked through the NJ Statutes as well as other Stack Exchange questions, but I haven't found an answer on my own. In particular, <a href="https://law.stackexchange.com/questions/60947/held-indefinitely-for-contempt-of-court">this question</a> is similar but isn't specific to New Jersey; it also isn't clear to me whether my example is one of civil, or criminal, contempt of court.</p>


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Answer 1: <p><strong>It's a maximum of 18 months imprisonment for disobeying a court order.</strong></p>
<p>Contempt of court is defined by the New Jersey Code of Criminal Justice at <a href="https://law.justia.com/codes/new-jersey/2022/title-2c/section-2c-29-9/" rel="nofollow noreferrer">section 2C:29-9.a</a>, which includes:</p>
<blockquote>
<p>A person is guilty of a crime of the fourth degree if the person purposely or knowingly disobeys a judicial order...</p>
</blockquote>
<p>The sentencing for which may be found at <a href="https://law.justia.com/codes/new-jersey/2022/title-2c/section-2c-43-6/" rel="nofollow noreferrer">section 2C:43-6.4</a>:</p>
<blockquote>
<p>In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.</p>
</blockquote>


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Answer 2: <p>The <a href="https://law.stackexchange.com/a/92823/9517">answer from Rick</a> isn't wrong but also isn't complete.</p>
<p>There are three kinds of contempt of court:</p>
<ul>
<li><p>direct punitive contempt of court (which applies to misconduct in the presence of the judge in the courtroom),</p>
</li>
<li><p>indirect punitive contempt of court (which punishes violation of a court order outside the courtroom), and</p>
</li>
<li><p>indirect remedial contempt of court (which creates an incentive to obey a court order that is currently being disobeyed outside the courtroom, which the person held in contempt has the present power to comply with).</p>
</li>
</ul>


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</li>
</ul>
<p><a href="https://criminallawyerinnj.com/contempt-charges-nj-2c29-9-penalties/#:%7E:text=What%20are%20the%20Penalties%20for,appear%20on%20your%20criminal%20record." rel="nofollow noreferrer">Direct contempt of court</a> is typically a disorderly persons offense in New Jersey, which carries up to 6 months in the county jail and a $1,000 fine. Direct punitive contempt of court is imposed summarily by the presiding judge without a trial other than giving the person punished an opportunity to explain themselves on the spot.</p>
<p>The eighteen month limitation on incarceration for contempt of court applies only to indirect punitive contempt of court, which are criminal offenses with special procedures attached to them, and to violations of restraining orders a.k.a. protection orders, discussed below in the footnote.</p>


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<p>Indirect punitive contempt of court is imposed following a process ending with a collateral hearing in the case where it arises, often with the plaintiff in a civil case deputized to serve as a prosecutor for the charges.</p>
<p>Not all states have statutory limitations on punitive contempt of court sanctions that do not involve a protection order violation. In one case in Illinois, a twenty year incarceration sentence was imposed in a direct punitive contempt of court case that was reduced to ten years on appeal, for refusing to testify. <em>See People v. Geiger</em>, 2015 IL App (3d) 130457 (Aprils) &amp; <em>People v. Perez-Gonzalez</em>, 2014 IL App (2d) 120946 (June) (both summarized <a href="https://illinoiscaselaw.com/contempt-of-court-maximum-penalty/" rel="nofollow noreferrer">here</a>).</p>


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<p>There is no limitation on the length of incarceration imposed or fine which may be imposed in indirect remedial contempt of court, which is reviewed on appeal for an abuse of discretion. The theory behind this is that the person incarcerated holds the key to their release by complying with the order which can be done at any time. Indirect remedial contempt of court, unlike punitive contempt of court, in compensatory, remedial, and civil in nature, rather than being quasi-criminal or having an object to punish a violator. The goal of remedial contempt is to secure compliance not to punish the person incarcerated.</p>


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<p>Typically, indirect remedial contempt of court is used for matters like failure to turn over assets in foreign accounts or password protected crypto that the person sanctioned controls, to force the turnover of cash or valuables at a location only known to the person incarcerated, or to compel someone's testimony on non-privileged matters in a court case or deposition or in response to judgment creditor issued interrogatories demanding that the location of the judgment debtor's assets be revealed.</p>
<p>If someone simply fails to sign a document despite being ordered to do so, remedial contempt of court could be used, but it is more common to have the court involuntarily appoint the court clerk as the agent of the person who refuses to sign for the narrow purpose of signing a particular document or set of documents (e.g. a real estate contract) on behalf of the recalcitrant party.</p>


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<p>No fixed term of incarceration or maximum fine is set in a remedial contempt of court order. Incarceration for indirect remedial contempt of court can continue until the matter to be compelled is moot, or until the person incarcerated no longer has the capacity to obey the court order. There are cases of people being incarcerated for indirect remedial contempt of court for more than a decade.</p>
<p>A law review article critical of this practice can be found <a href="https://law.bepress.com/cgi/viewcontent.cgi?article=7789&amp;context=expresso" rel="nofollow noreferrer">here</a>.</p>
<p>The longest case of incarceration for remedial contempt of court is <a href="https://en.wikipedia.org/wiki/H._Beatty_Chadwick" rel="nofollow noreferrer">described by Wikipedia</a> as follows:</p>
<blockquote>
<p>H. Beatty Chadwick (born 1936) is the current American record holder
for the longest time being held in civil contempt of court. In


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<blockquote>
<p>H. Beatty Chadwick (born 1936) is the current American record holder
for the longest time being held in civil contempt of court. In
1995, a judge ruled that Chadwick hid millions of U.S. dollars in
overseas bank accounts so that he would not have to pay the sums to
his ex-wife during their divorce. He was incarcerated until such
time as he could present $2.5 million to the Delaware County Court in
Pennsylvania. Chadwick maintains that the money was lost in bad
investments and therefore he cannot surrender money he does not
possess. Although never charged with a crime, H. Beatty Chadwick spent
fourteen years of his life in prison.</p>
<p>On July 10, 2009, Chadwick was ordered released from prison by
Delaware County Judge Joseph Cronin, who determined his continued
incarceration had lost its coercive effect and would not result in him
surrendering the money.</p>
</blockquote>


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Delaware County Judge Joseph Cronin, who determined his continued
incarceration had lost its coercive effect and would not result in him
surrendering the money.</p>
</blockquote>
<p>See also <a href="https://abcnews.go.com/2020/story?id=8101209&amp;page=1" rel="nofollow noreferrer">this news report</a> on the same case. Legal commentary on that case can be found <a href="https://www.pennlawreview.com/2021/06/01/are-there-really-plenty-of-shapiros-out-there-%E2%80%A8a-comment-on-the-courage-of-norma-l-shapiro-part-three-chadwick-v-janecka-fourteen-years-of-civil-contempt/" rel="nofollow noreferrer">here</a>.</p>
<p><strong>Footnote Re Protection Orders</strong></p>
<p>Most if not all states issue protection orders typically ordering someone who has harassed, stalked, or threatened violence against someone to stay away from one or more persons or places, often in a domestic violence or toxic fan situation.</p>


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<p>These orders, unlike almost all other civil court orders, can be enforced directly by law enforcement without a contempt of court process, and it is a crime other than contempt of court to violate such an order. In the case of all other civil court orders for injunctive relief, contempt of court is the only or primary remedy.</p>


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Answer 3: <p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<p>In English law the maximum penalty for a single offence of contempt is <strong>two years of imprisonment, a fine of £2500, or both.</strong></p>
<blockquote>
<p>In any case where a court has power to commit a person to prison for contempt of court and (apart from this provision) no limitation applies to the period of committal, the committal shall (without prejudice to the power of the court to order his earlier discharge) be for a fixed term, and <strong>that term shall not on any occasion exceed two years</strong> in the case of committal by a superior court, or one month in the case of committal by an inferior court.</p>


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<p>In any case where an inferior court has power to fine a person for contempt of court and (apart from this provision) no limit applies to the amount of the fine, <strong>the fine shall not on any occasion exceed £2,500.</strong></p>
<p><sub><sup><a href="https://www.legislation.gov.uk/ukpga/1981/49" rel="nofollow noreferrer">Contempt of Court Act (1981)</a></sub></sup></p>
</blockquote>
<p>Note that if the person <em>continues</em> to demonstrate contempt, that would class as a new offence and could trigger a new sentence.</p>


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Question Title: GDPR and Storing Non-EU Citizen Data as an EU-based company

Question Body: <p>I work for an EU company based in the UK and often work with clients in China and Africa (and some other non-EU countries). In the future, it may arise that we will be storing some personal information on citizens from these countries and was wondering what the GDPR laws were with reference to an EU company storing non-EU citizen data? </p>

<p>I thought GDPR was to protect the data/information of EU citizens (from Wikipedia):</p>

<blockquote>
  <p>General Data Protection Regulation (EU) 2016/679 ("GDPR") is a
  regulation in EU law on data protection and privacy for all
  individuals within the European Union (EU) and the European Economic
  Area (EEA).</p>
</blockquote>

<p>but wasn't sure if personal information outside of the EU was also protected.</p>


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<p>but wasn't sure if personal information outside of the EU was also protected.</p>

<p>Short version: <strong>are there any GDPR considerations that must be in place when an EU company stores personal information from citizens outside of the EU?</strong></p>


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Answer 1: <blockquote>
<p>are there any GDPR considerations that must be in place when an EU company stores personal information from citizens outside of the EU?</p>
</blockquote>
<p>Absolutely.  The territorial scope of the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2016.119.01.0001.01.ENG" rel="nofollow noreferrer">GDPR</a> is specified at Article 3:</p>
<blockquote>
<p>Article 3</p>
</blockquote>
<blockquote>
<p>Territorial scope</p>
</blockquote>
<blockquote>
<ol>
<li>This Regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not.</li>
</ol>
</blockquote>
<blockquote>
<ol start="2">


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</ol>
</blockquote>
<blockquote>
<ol start="2">
<li>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:</li>
</ol>
</blockquote>
<blockquote>
<p>(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</p>
</blockquote>
<blockquote>
<p>(b) the monitoring of their behaviour as far as their behaviour takes place within the Union.</p>
</blockquote>
<blockquote>
<ol start="3">
<li>This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where Member State law applies by virtue of public international law.</li>
</ol>
</blockquote>


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</ol>
</blockquote>
<p>As specified in point 1, the regulation applies to controllers and processors located in the EU.  There is no exemption of personal data based on the data subject's nationality or location. In fact, GDPR Recitals 2 and 14 explicitly mention that nationality or residence shall not be a factor:</p>
<blockquote>
<p>The protection afforded by this Regulation should apply to natural persons, whatever their nationality or place of residence, in relation to the processing of their personal data. […]</p>
</blockquote>


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Question Title: Our company is based in the UK. We have users who are located in the USA, are these users protected by GDPR?

Question Body: <p>Our company is based in the UK. We have users who are located in the USA, are these users protected by GDPR?</p>
<p>Any help on this questions would be much appreciated!</p>


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Answer 1: <h2>Yes</h2>
<p>When personal data is processed in the context of an EU/EEA/UK establishment (for example, by a company with offices in the UK), then all these processing activities must fully comply with the GDPR, regardless of where the data subjects are located.</p>
<p>For the <a href="https://www.legislation.gov.uk/eur/2016/679/article/3" rel="nofollow noreferrer">UK GDPR</a>:</p>
<blockquote>
<p>This Regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the United Kingdom, regardless of whether the processing takes place in the United Kingdom or not.</p>
</blockquote>
<p>For the <a href="https://commission.europa.eu/law/law-topic/data-protection/reform/rules-business-and-organisations/application-regulation/who-does-data-protection-law-apply_en#:%7E:text=Answer-,Answer,the%20data%20is%20processed%3B%20or" rel="nofollow noreferrer">EU GDPR</a>:</p>
<blockquote>


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<blockquote>
<p>The GDPR applies to:</p>
<ol>
<li>a company or entity which processes personal data as part of the activities of one of its branches established in the EU, regardless of where the data is processed; or</li>
</ol>
<p>…</p>
</blockquote>


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Question Title: Is free willing protected rights? What if Artificial Intelligence agent have self conscious, is it protected from human editing its willing?

Question Body: <p>Say it is now some years later, we have created an artificial intelligence (AI) agent with self conscious and capable of thinking in a loop of thought under bounded rationality just like humans do...</p>
<p>As human can inject information in its loop by program, we are manipulating the free willing of AI.</p>
<p>What will happen in this case? Human juries and the AI judge will judge AI based on the law of human?</p>


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Answer 1: <p>The question is not entirely clear, but it seems not to be whether free will is a protected right, but whether AI enjoys the rights that humans do.</p>
<p>The answer is no. Unless otherwise specified, legal rights typically can only be enjoyed by a person or a group of people. AI may have similarities to actual people that cause us to empathize with them, but it isn't a person; similarly, Mario has similarities to actual people that cause us to empathize with him, but he isn't a person. Because neither of them is actually a person, AI and Mario have essentially the same human rights, which is to say &quot;none.&quot;</p>


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Answer 2: <p>Washington state law entails that only a person can be a judge. Under <a href="https://app.leg.wa.gov/rcw/default.aspx?cite=2.08&amp;full=true" rel="nofollow noreferrer">the provisions for initially appointing judges</a>, only a person can be appointed. Generally, judges are elected, and only a person can <a href="https://app.leg.wa.gov/RCW/default.aspx?cite=29A.24&amp;full=true" rel="nofollow noreferrer">file as a candidate for office</a>. This also precludes electing a dog to be a judge.</p>
<p>Pursuant to various sci-fi scenarios, an aggrieved party might attempt to file a lawsuit to be judicially deemed a &quot;person&quot;. If, for example, SCOTUS rules that ChatGPT is legally and without reservation a person then at that point, ChatGPT would enjoy the legal rights of a person, but that is a big if.</p>


Tags: human-rights, artificial-intelligence


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Question Body: <p><strong>Online file converter:</strong> Web-based tool or service that allows you to convert files from one format to another through the internet. Users upload a file in a specific format, it is converted <em>on the site's server</em> into a different format of their choice, without the need to install any software or applications on their device. Online file converters support a wide range of file types, including documents, images, videos, audio files, and more.</p>
<p>Let's assume for the sake of simplicity that we're talking about ethical online converters that don't collect/sell/share any information about the files uploaded by the users, so the file really makes a private round trip.</p>
<hr />


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<hr />
<p>I'm wondering about the legal responsibility of these online converters, as they're essentially redistributing derivative work of pretty much anything you give them, whether or not you're allowed to modify them in the first place. The derivative work is <em>downloaded from their servers</em> at some point in time.</p>
<p>This question is a bit related to the issue of uploading copyrighted material to social media (with the <em>Online Copyright Infringement Liability Limitation Act</em> in the USA), except that the files here are only supposed to be downloaded by the same person who uploaded them (a private link is created and will expire quickly).</p>
<p><strong>Additional assumptions (bonus):</strong></p>
<ul>


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<p><strong>Additional assumptions (bonus):</strong></p>
<ul>
<li>What if a website detects that a lot of users upload the same files and implements a cache? The converted files would then be stored in the medium-long term, but still only privately accessible only by people who have the original file (and site owners). That would probably already be illegal in the UK but I don't know about EU or USA.</li>
<li>What if we have a cache <strong>and</strong> the files are encrypted with a hash of the source file, rendering their access practically impossible without the original, even for site owners?</li>
</ul>


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Answer 1: <p>Online file converters are legal: there is no law that prohibits a person from making a program available and executing online, including creating output in the form of a file. It is possible that some person may illegally copy copyright-protected material then use a website to modify that material, in which case the question of vicarious liability for copyright infringement could arise, so we appeal to the DMCA safe harbor provisions to see what the website must do. First, the owner of copyright must submit a properly constructed takedown notice to the website. Crucially, the notice must contain sufficient information that the website operator can find and take down the item(s) in question. Assuming that the complainant can supply the &quot;where is it&quot; information, then there is a notice and counter-notice routine where the uploader is informed and can deny the accusation – the website operator doesn't evaluate the merits of the claim, he only sees that the


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then there is a notice and counter-notice routine where the uploader is informed and can deny the accusation – the website operator doesn't evaluate the merits of the claim, he only sees that the formalities were observed. If the operator follows the rules, he cannot be held vicariously liable.</p>


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<p>If the link does not expire and if it is somehow promulgated, the technical potential for being a contributor to copyright infringement becomes very real, but it puts the operator in no worse a legal position than Youtube. So the question is not just related to OCILLA, it is entirely covered by that law. Questions of how users or website owners are &quot;supposed to&quot; act don't figure into this. If the website owner does not comply with those provisions, they have no access to the safe harbor provisions, and they can be sued. However, the website itself remains legally &quot;permitted&quot; (there never was a prohibition of such a website).</p>


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Question Title: Do parents have a right to obtain a copy of all worksheets (non-tests) their child will receive for the year in a public school via e-mail?

Question Body: <p>Do parents have a right to obtain a copy of all worksheets (non-tests) their child will receive for the year in a public school electronically to assess/audit it?</p>
<p>If not, how can they point out bad things such as your movement from one concept to another is too slow, you're not moving at all or this curriculum is too repetitive?</p>
<p>If a school doesn't e-mail that to a parent, there's absolutely no way to be accountable. If they hand it in person, it would be hearsay and non-ownership.</p>
<p>How can education be public if it's just handed to students, and when a parent complains this is too slow being taught, the teacher could say, yours is hearsay. What evidence do you have I assigned that worksheet for homework?</p>


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Answer 1: <p>At the federal level under FERPA, parents have the right to <a href="https://www.ecfr.gov/current/title-34/subtitle-A/part-99/subpart-B" rel="nofollow noreferrer">inspect and review</a> <a href="https://www.ecfr.gov/current/title-34/subtitle-A/part-99/subpart-A/section-99.3" rel="nofollow noreferrer">education records</a>. I don't know what you mean by &quot;worksheet&quot;, so it may or may not be an education record. Under any reasonable interpretation of the term it is a &quot;record&quot;, but to be an &quot;education record&quot; it must be directly related to a student and maintained by an educational agency or institution or by a party acting for the agency or institution, for example &quot;the answers of a student&quot;. It excludes records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record, and also excludes


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possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record, and also excludes grades on peer-graded papers before they are collected and recorded by a teacher. In my youth we would receive sheets with math problems that we had to solve and hand in, which may have been retained – as long as the sheets were retained by someone in the school system other than the teacher, they would be &quot;education records&quot; (had the law existed at the time).</p>


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<p>The actual purpose of this law is to allow students and their parents to inspect the basis for grading, and to allow access to the infamous &quot;permanent record&quot;. It is not related to the political purpose of criticizing lesson plans, but one can of course use such information in that manner. Whether or not parents, or anyone, has a legal right to access lesson plans for some public commentary purpose is a matter of local school policy. The legal remedy for dissatifaction with educational policies is to write to your legislature and run for the school board.</p>


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Answer 2: <p>Parents do not have a right to inspect all educational materials because parents do not have the right to direct the education of their child.  Parents who wish to do this should homeschool their children or pay for their education directly themselves.</p>
<p>Public education means education financed by public tax dollars.  It does not mean anarchy of education by making the entire curriculum public and subject to scrutiny by every parent.</p>
<p>As to your standards of evidence...</p>
<blockquote>
<p><a href="https://en.wikipedia.org/wiki/Hearsay" rel="nofollow noreferrer">Hearsay</a>, in a legal forum, is an out-of-court statement which is being offered in court for the truth of what was asserted. In most courts, hearsay evidence is inadmissible (the &quot;hearsay evidence rule&quot;) unless an exception to the hearsay rule applies.</p>
</blockquote>


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</blockquote>
<p>Hearsay means more or less trying to testify that someone told you something versus knowing the thing directly, not that you didn't have copies of documents in advance.</p>


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Question Title: Disclosing records no longer maintained, FERPA

Question Body: <p>Are professors able to discuss a student’s academic misconduct with others after the disciplinary file is no longer maintained after a set amount of years after the student has graduated? Even if the original academic records (eg. plagiarized exams) are still ‘maintained’ by the professor?</p>


Answer 1: <p>I assume there was an official hearing on misconduct, but the record was deleted from the university's holdings (following deletion policy). The disciplinary board had copies of the exam, complaint, and minutes from the hearing – and these were later deleted by policy. The instructor might still have the exam, and perhaps his own notes from the hearing. By the federal definition of <a href="https://www.ecfr.gov/cgi-bin/text-idx?SID=2aa3d1b7c535f77761142e614296382f&amp;mc=true&amp;node=se34.1.99_13&amp;rgn=div8" rel="nofollow noreferrer">education record</a>,</p>


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<blockquote>
  <p>(b) The term does not include:</p>
  
  <p>(1) Records that are kept in the sole possession of the maker, are
  used only as a personal memory aid, and are not accessible or revealed
  to any other person except a temporary substitute for the maker of the
  record.</p>
</blockquote>

<p>The exam itself is made by the student, and is not in the sole possession of the maker: the exam does not fall within the purview of this "not a record" exception. The faculty member's notes on the hearing were made by the faculty member, and they <em>are</em> covered by the "not a record" provision, <em>as long as they are are not accessible or revealed to any other person</em>. What this provision is about is that students have the right to access education records, but they do not have the right to access the faculty member's own personal notes about the hearing. Disclosing those personal notes makes them a record, meaning that consent is required.</p>


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<p>The faculty member is probably in violation of university policy, for keeping a record past the destroy date. As an example, the final 3 pages of <a href="https://library.osu.edu/documents/records-management/general-schedule.pdf" rel="nofollow noreferrer">this records retention schedule</a> indicate that a record is to be destroyed within 3 years of the student no longer being enrolled, at the maximum. Coursework materials are to be destroyed 2 terms after the term of enrollment. In reading this document, the wording is a bit vague: who is this addressed to? Faculty? <a href="https://odee.osu.edu/news/2016/05/23/saving-and-destroying-academic-records" rel="nofollow noreferrer">This helpful (and authoritative) source</a> suggests that it is directed to faculty, as does <a href="https://library.osu.edu/osu-records-management" rel="nofollow noreferrer">this</a>. </p>


Tags: ferpa


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Question Title: Is it possible for there to be no reasonable expectation of privacy in one&#39;s own home (bought , not rented)?

Question Body: <p>In privacy invasion torts, the act of privacy invasion needs to be carried out in a place where the victim has a reasonable expectation of privacy, and it's often said by people that privacy invasion by someone outside one's house would always be a violation of law.  Is this true ?</p>


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Answer 1: <p>The assessment of a reasonable expectation of privacy is based on the totality of the circumstances. This applies in both the context of unreasonable searches and in the context of the tort of invasion of privacy. See generally: <em>Heckert v. 5470 Investments Ltd.</em>, <a href="https://canlii.ca/t/20zrs#par81" rel="noreferrer">2008 BCSC 1298 at para. 81-82</a> (a lower court decision, but summarizing Canada Supreme Court jurisprudence). One might have a reasonable expectation of privacy at a restaurant and one might not have a reasonable expectation of privacy in a personal residence.</p>
<p>When an insurance company was conducting surveillance from the street into a home via open windows, it was found in those circumstances that the privacy interest was low:</p>
<blockquote>


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<p>When an insurance company was conducting surveillance from the street into a home via open windows, it was found in those circumstances that the privacy interest was low:</p>
<blockquote>
<p>Although her expectation of privacy may legitimately be higher while in her house, on the night in question the blinds were open and the lights were on.  Therefore, anyone could have seen her helping her daughter while just passing by the house.  Further, Ms. Milner ought to have reasonably known that Manulife was investigating her claim and that it was possible that video surveillance would be used.  Thus, her entitlement to privacy on the evening in question was low.</p>
<p><em>Milner v Manufacturers Life Insurance Company</em>, 2005 BCSC 1661 (CanLII), at para 83, <a href="https://canlii.ca/t/1m4qx#par83" rel="noreferrer">https://canlii.ca/t/1m4qx#par83</a>, retrieved on 2023-04-12</p>
</blockquote>


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</blockquote>
<p>On the other hand, when a neighbor installed cameras angled so as to capture surveillance of the interior of another neighbor's home, the surveilled neighbor had a high privacy interest:</p>
<blockquote>
<p>the Halls ... did, at all times, have a reasonable expectation of privacy when inside their own home. Unlike, the investigator in the Milner case, the dispute with Mr. Wasserman did not entitle him to any information that might be obtained as a result of surveillance of activities inside the Hall residence. Accordingly, the Halls’ expectation of privacy inside their home was very high throughout the entirety of the dispute.</p>
<p><em>Wasserman v. Hall</em>, 2009 BCSC 1318 (CanLII), at para 77, <a href="https://canlii.ca/t/25tgf#par77" rel="noreferrer">https://canlii.ca/t/25tgf#par77</a>, retrieved on 2023-04-12</p>
</blockquote>


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Answer 2: <p><a href="/questions/tagged/france" class="post-tag" title="show questions tagged &#39;france&#39;" aria-label="show questions tagged &#39;france&#39;" rel="tag" aria-labelledby="tag-france-tooltip-container">france</a></p>
<p>There are two related principles at play: <em>droit à l’image</em> (right to image) et <em>droit au respect de la vie privée</em> (right to privacy). The former refers to the distribution of someone's image against their wish, whereas the latter refers to intruding in private matters.</p>


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<p>The difference is illustrated by <a href="https://www.legifrance.gouv.fr/juri/id/JURITEXT000007049528/" rel="nofollow noreferrer">Cour de Cassation, Chambre civile 2, du 10 mars 2004, 01-15.322</a>. A tabloid published pictures of two celebrities showing public displays of affection toward each other, one of them sued. The court ruled that the right to privacy was not infringed because the images were taken in a public place; however, the right to image <em>was</em> infringed.</p>
<p>Focusing on the right to privacy, the statutory basis in civil law is <a href="https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006419288" rel="nofollow noreferrer">Code Civil, article 9</a>:</p>
<blockquote>
<p>Chacun a droit au respect de sa vie privée.</p>
</blockquote>
<blockquote>
<p>One is entitled to the respect of one’s private life.</p>
</blockquote>
<p>That is rather short on details. Case law established that basically anything nonpublic is subject to privacy.</p>


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<p>Consider for instance <a href="https://www.legifrance.gouv.fr/juri/id/JURITEXT000037622022/" rel="nofollow noreferrer">Cour de cassation, civile, Chambre sociale, 7 novembre 2018, 17-16.799</a>. An employer was contesting some employees' eligibility for positions of &quot;employee representative&quot;. During the legal proceedings, the employer produced pay slips of those employees. Those pay slips included private information (age, wage, address, bank account number, days of sick leave) that were not needed to establish the facts in dispute, and were communicated to other parties to the proceedings (unions that contested the employer’s determination of eligibility). The employer was condemned for infringing the privacy of those employees, because that information could have been blacked-out before sending the documents. Note that there is no question that the employer lawfully collected that information (it is necessary for payroll purposes); they disclosed it to a rather small


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before sending the documents. Note that there is no question that the employer lawfully collected that information (it is necessary for payroll purposes); they disclosed it to a rather small number of persons (parties to the lawsuit and the judge); they did not obtain or expect to obtain any monetary benefit from that disclosure; and they did so out of carelessness rather than malice (the employer’s counsel promptly asked opposing counsel to delete the documents and corrected the record when the problem was brought to their attention).</p>


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<p>There are also criminal penalties for infringing on privacy. The statutory basis is <a href="https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000042193566/" rel="nofollow noreferrer">Code Pénal, article 226-1</a>:</p>
<blockquote>
<p>Est puni (...) le fait, au moyen d'un procédé quelconque, volontairement de porter atteinte à l'intimité de la vie privée d'autrui :</p>
<p>1° En captant, enregistrant ou transmettant, sans le consentement de leur auteur, des paroles prononcées à titre privé ou confidentiel ;</p>
<p>2° En fixant, enregistrant ou transmettant, sans le consentement de celle-ci, l'image d'une personne se trouvant dans un lieu privé.</p>
<p>3° En captant, enregistrant ou transmettant, par quelque moyen que ce soit, la localisation en temps réel ou en différé d'une personne sans le consentement de celle-ci.</p>


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<p>3° En captant, enregistrant ou transmettant, par quelque moyen que ce soit, la localisation en temps réel ou en différé d'une personne sans le consentement de celle-ci.</p>
<p>Lorsque les actes mentionnés aux 1° et 2° du présent article ont été accomplis au vu et au su des intéressés sans qu'ils s'y soient opposés, alors qu'ils étaient en mesure de le faire, le consentement de ceux-ci est présumé.</p>
<p>(...)</p>
<p>Lorsque les actes mentionnés au présent article ont été accomplis sur la personne d'un mineur, le consentement doit émaner des titulaires de l'autorité parentale.</p>
</blockquote>
<blockquote>
<p>Voluntarily infringing on one’s privacy, by any technical means, is punished by (...):</p>
<ol>
<li><p>By recording or transmitting speech given in private or in confidence, without their author’s consent;</p>
</li>
<li><p>By recording or transmitting the image of someone present in a private place, without their consent;</p>
</li>


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</li>
<li><p>By recording or transmitting the image of someone present in a private place, without their consent;</p>
</li>
<li><p>By recording or transmitting by any means the location of another person without their consent, whether in real time or delayed.</p>
</li>
</ol>
<p>When actions described at 1) and 2) were done openly in front of the interested persons, and they did not oppose them when they had the ability to do so, their consent is presumed.</p>
<p>(...)</p>
<p>When actions mentioned here target a minor, consent must come from a legal guardian.</p>
</blockquote>
<p>There is no test of &quot;expectation of privacy&quot; or similar - the test is whether the recording was done in a private place, which is usually an objective and obvious test. It does not discriminate between your home, someone else’s, etc.</p>


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<p>The more fuzzy part is &quot;infringing on one’s privacy&quot;. Suppose I am babysitting my five-year-old niece, and she is running in my garden (a private place, but visible from the street). As she is a minor and her parents are absent, it is not possible to obtain consent to film her. Still, it would be socially acceptable for me to film her; a majority of people would even approve of me posting the film on Facebook without consulting with the parents first. (The parents could ask me to not do that for image right considerations, though.) On the other hand, if the filming is done by some random passer-by leaning over the fence, that would be considered an invasion of privacy by most people. I suspect, but could not find a case on point, that courts would follow the general appreciation that the former situation is not an invasion of privacy but the latter is.</p>


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Question Title: Onlyfans account leaked to my family

Question Body: <p>I have an OnlyFans account which for obvious reasons I kept secret from everyone. But somehow someone has leaked its content (perhaps a friend or an ex-partner who wanted to take a revenge on me). He/she sent an anonymous email to my family with a link to my page. My family was shocked, my father almost had a heart attack. I went to the police (I live in the UK) and asked what could be done to investigate and potentially sue the person behind the mail. But they told me that since the link is public no law has been infringed. Is this really the case? Any help would be greatly appreciated!</p>


Answer 1: <h2>What you do in public is public</h2>
<p>There is no crime in effectively saying to another person “Hey, look at this.”</p>


Tags: criminal-law, police, defamation, email, stalking


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Question Title: Are legislators ever asked to explain their intent in Supreme Court cases?

Question Body: <p>I recently started to listen to recordings of arguments before the Supreme Court.  I am not a lawyer so I don't completely follow everything, but I noticed right away that a lot of arguments deal with the <em>intent</em> of this or that law.</p>
<p>Given that this is such an important focus, have arguments before the Supreme Court ever involved testimony of some sort from legislators who drafted the laws being debated, explaining what they really intended the law to mean?  I noticed that attorneys even bring up how a certain word in a law is defined in the Merriam-Webster's Dictionary.  Wouldn't it make more sense just to ask those who wrote a law to explain what was meant (assuming they are still alive)?</p>


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Answer 1: <p>Many jurists do accept that it is appropriate to attempt to ascertain the &quot;legislative intent&quot; as part of the exercise of statutory interpretation, but legislative intent is not an aggregate of the subjective intentions of individual legislators. I am not aware of any question of statutory interpretation that was informed by testimony from staffers or legislators who drafted, debated, or enacted a law.</p>
<p>For some rationale, see <a href="https://en.wikipedia.org/wiki/Frank_Easterbrook" rel="noreferrer">Judge Easterbrook</a>'s foreward to <a href="https://en.wikipedia.org/wiki/Antonin_Scalia" rel="noreferrer">Antonin Scalia</a> and <a href="https://en.wikipedia.org/wiki/Bryan_A._Garner" rel="noreferrer">Bryan Garner</a>'s <a href="https://www.worldcat.org/en/title/reading-law-the-interpretation-of-legal-texts/oclc/780036606" rel="noreferrer"><em>Reading Law: The Interpretation of Legal Texts</em></a>:</p>
<blockquote>


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<blockquote>
<p>Legislative intent is a fiction, a back-formation from other and often undisclosed sources. Every legislat<em>or</em> has an intent, which usually cannot be discovered, since most say nothing before voting on most bills; and the legislat<em>ure</em> is a collective body that does not have a mind; it &quot;intends&quot; only that the text be adopted, and statutory texts usually are compromises that match no one's first preference.</p>
<p>If some legislators say one thing and others say something else... how does the interpreter choose which path to follow?</p>
</blockquote>
<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>


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<p>Even evidence of what was said in Parliamentary debate is treated cautiously (<a href="https://www.canlii.org/en/ca/scc/doc/1994/1994canlii34/1994canlii34.html" rel="noreferrer"><em>R. v. Heywood</em>, [1994] 3 S.C.R. 761</a>):</p>
<blockquote>
<p>First, the intent of particular members of Parliament is not the same as the intent of the Parliament as a whole.  Thus, it may be said that the corporate will of the legislature is only found in the text of provisions which are passed into law.  Second, the political nature of Parliamentary debates brings into question the reliability of the statements made. Different members of the legislature may have different purposes in putting forward their positions.  That is to say the statements of a member made in the heat of debate or in committee hearings may not reflect even that member's position at the time of the final vote on the legislation.</p>
</blockquote>


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</blockquote>
<p>Legislative intent is determined by looking at the words, the scheme, and the object of the provision (<a href="https://canlii.ca/t/g62cv#par16" rel="noreferrer"><em>R. v. Hutchinson</em>, 2014 SCC 19, paragraph 16</a>).</p>


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Answer 2: <p>One impediment to such explanations is that when hearing an appeal (as opposed to a case where SCOTUS has original jurisdiction), there are no witnesses testifying. An attorney for a party may argue, but a legislator or witness cannot testify. Information (of various kinds) enters into the stream via amicus briefs, which may indeed affect the outcome, but rarely do the justices indicate in their opinions where they get their information, even when it's not about something that they personally know.</p>


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<p>Scalia in <em>Common-Law Courts in a Civil-Law System</em> p. 107 mentions an exchange within the Senate regarding &quot;legislative intent&quot; in the course of the case <a href="https://casetext.com/case/hirschey-v-ferc" rel="noreferrer">Hirschey v. Federal Energy Regulatory Comm’n</a>, 777 F.2d 1 where he refers to &quot;the legislative history&quot; contained in <a href="https://www.govinfo.gov/app/details/GPO-CRECB-1982-pt19" rel="noreferrer">128 Cong. Rec. 16918-19, 97th Cong., 2d Sess.</a>. This is a transcript of actual words uttered on the floor of the Senate, from which one might attempt to arrive at an understanding of &quot;legislative intent&quot;.</p>


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<p>Your idea is to ask &quot;the person who wrote the bill&quot; what they intended, however, there may well be no identifiable individual, since bills frequently have multiple sponsors, and legislators don't write laws (they have staff who do the writing). Appellate courts do look at the objective record regarding the creation of laws, as informed by amicus briefs, but they do not interrogate witnesses to the creation of law, and they avoid subjective perspectives like &quot;I wanted to bring about social justice&quot;. Even in a trial, it's the lawyers who ask the questions.</p>


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Answer 3: <p><a href="/questions/tagged/switzerland" class="post-tag" title="show questions tagged &#39;switzerland&#39;" aria-label="show questions tagged &#39;switzerland&#39;" rel="tag" aria-labelledby="tag-switzerland-tooltip-container">switzerland</a></p>
<p>Not explicitly. The court isn't (as far as I'm aware) going to ask the lawmakers for a statement during a trial. This would be quite difficult, because typically the law is drafted by some government employee, finalized by the federal council and then debated, changed and amended by the parliament (whose members typically have very different goals and opinions). So who are you going to ask?</p>
<p>But what is common is that the court takes the reasoning presented to the parliament into consideration. The government writes, together with a proposed law, a lengthy report on why it thinks that law is needed. That might help the court to understand the intended meaning.</p>


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<p>Additionally, since in Switzerland laws are officially provided in three languages, the court can take another language into consideration, which might be less ambiguous in a certain point.</p>


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Answer 4: <p><a href="/questions/tagged/hungary" class="post-tag" title="show questions tagged &#39;hungary&#39;" aria-label="show questions tagged &#39;hungary&#39;" rel="tag" aria-labelledby="tag-hungary-tooltip-container">hungary</a></p>
<p>Maybe an interesting detail, bills in Hungary are drafted together with an explanatory memorandum that is supposed to describe the societal, economical and legal reasons, intentions and justification, as well as the expected outcome and the aims it is set to reach. This is not just a kind of preamble of a few sentences but usually as long as the bill itself, or longer, enumerating section after section.</p>
<p>When done properly, not just as a formal description of merely repeating the individual sections of the bill without adding real details, this can help both the parliament during the debates and later, when the bill is enacted, to document the original intentions of the legislation in sufficient detail.</p>


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Answer 5: <h2>No, it would clearly breach of the separation of powers doctrine</h2>
<p>Government in the Western tradition requires a clear separation of the roles of the legislature, the executive, and the judiciary. This may be explicitly in a written constitution (e.g. USA, France) or it may be a convention having constitutional force (e.g. UK).</p>
<p>Broadly speaking, the legislature writes the law, the executive administers the law, and the judiciary interprets the law. Legislators testifying as to how the law should be interpreted clearly breaks these roles.</p>
<h2>There are practical difficulties too</h2>
<p>The US has 535 legislators, are you going to get them all to testify as to what they meant? If not, which ones do you choose? If the law was passed in 2006, will you get that Congress to testify or the current one? What if it was in 1892 when everyone involved is long dead?</p>


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Answer 6: <p>This happens in Germany; when a law is unclear, the Federal Court of Justice can request action by the legislature.</p>


Tags: us-supreme-court, congress, legislature, legislative-intent, intent


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Question Title: Why did this US prosecutor keep asking whether documents would refresh a witness&#39;s memory?


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Question Body: <h1>Background</h1>
<p>I served on a jury during a criminal trial in the United States several years ago.  There was a strangely formal interaction that repeated itself a few times during the trial.</p>
<p>The prosecutor, while holding some document, would ask a question which required the witness to recall some specific detail.  The witness would reply &quot;I don't remember.&quot;  The prosecutor would then ask &quot;Would looking at [some document] refresh your memory?&quot;, to which the witness would answer &quot;Yes.&quot;</p>
<p>The prosecutor would then hand the document to the witness, who would look at it and then answer the question.</p>
<p>It's obvious that the prosecutor already knew the question wouldn't be answerable without reference to the report or document - that's why they were holding it. But then why perform the dance of &quot;do you recall&quot; / &quot;no&quot; / &quot;would this refresh your memory&quot; / &quot;yes&quot;?</p>


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<h1>The Question</h1>
<p>It's clear the witness needs the document to answer the prosecutor's question, so what's the value in the prosecutor asking the witness the question the first time without the document?</p>
<h1>Disclaimer</h1>
<p>(<em>it may be that this was simply this prosecutor's way of phrasing questions, rather than a feature of the United States criminal judicial system. If that's the case this question won't be answerable, since it calls for knowing the mindset of a specific individual. If so, let me know and I'll delete it</em>)</p>
<h3>Further information</h3>
<p>In the real-life situation I found myself in, the witness was <em>for</em> the prosecution.  However, I'm equally interested in answers (<a href="https://law.stackexchange.com/a/92804/593">such as hszmv's</a>) that explain why the adversarial lawyer might also use this technique, if relevant.</p>


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Answer 1: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>Witnesses are generally confined to giving testimony from their own personal memory; most of the time, they can't read a statement into the record or just tell the jury to go look at some other piece of evidence.</p>
<p>But this creates problems when a witness knows an important fact but doesn't remember it when she takes the stand. Maybe she counted exactly how much money she stuffed in the robber's bag as she was doing it, and she wrote it down as soon as he fled, but a year later, she can't remember that it was $93,736.45.</p>


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<p>But the prosecutor isn't allowed to just give the witness a stack of evidence and let her go hunting through the documents to answer each question. Instead,he goes through the &quot;Do you remember&quot; colloquy to lay the necessary foundation to refresh the witness's memory, as contemplated by <a href="https://www.law.cornell.edu/rules/fre/rule_612" rel="noreferrer">Rule 612</a>, which then also triggers certain rights for the opposing party with respect to the document used to refresh the witness's memory.</p>


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Answer 2: <h2>Witnesses cannot refer to documents or notes</h2>
<p><a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" aria-label="show questions tagged &#39;australia&#39;" rel="tag" aria-labelledby="tag-australia-tooltip-container">australia</a></p>
<p>That’s because witness testimony is supposed to be what the witness remembers, not what they are prompted to remember.</p>
<p>This is covered by s32 of the Uniform <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1995-025#sec.32" rel="noreferrer">Evidence Acts</a> in those jurisdictions that have adopted it, but it only a codification of a long-standing common law rule.</p>
<p>Exemptions apply to expert witnesses and police officers <em>and</em> with the permission of the court.</p>
<p>The process the prosecutor is going through is to allow the defence to raise an objection and (implicitly) to get the court’s permission.</p>


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Answer 3: <blockquote>
<p>It's clear the witness needs the document to answer the prosecutor's question, so what's the value in the prosecutor asking the witness the question the first time without the document?</p>
</blockquote>
<p>In a court room, most actions taken by the attorney are for one reason and one reason only:  To convince the Jury to give them a favorable ruling.</p>
<p>The example you cited is likely part of an attempt by the attorney to impeach a witness during cross examination (it should be noted that impeach here means something different than the commonly understood meaning of the term.  Here, it's an informal process of convincing the jury to discount the testimony of the witness by demonstrating that they're testimony is unreliable.   Because U.S. courts are adversarial, the opposing attorney will try to poke holes in the testimony of the witness during cross-examination.).</p>


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<p>As to why the Lawyer even asked the question in the first place if he knew the answer, especially during cross-examination, it's to get the witness to contradict themselves out loud before they introduce the evidence.  But then, the fact that you spotted one instance of a lawyer knowing what the answer is before they ask the question, that's their big secret... a good attorney knows the answer to every question they ask in court before they ask it.</p>


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<p>As a juror, you didn't see the work the lawyers on both sides did... each one took statements from their witnesses, and formed questions with them and coached them on the proper way to respond (this isn't necessarily what to say... but how to say and who to say it to... if you are ever called as a witness, the attorney who coaches you will make sure to tell you when you answer a question on the stand, look at the Jury (or Judge in a bench trial) when you respond and not the attorney who asked the question... because people tend to believe that when someone doesn't look at them they are lying) to the questions and what to say on cross to avoid legal trouble.  And then, they get to interview the witnesses the other side is bringing in to testify (in fact, if a witness for the opposing side refuses to talk to your lawyers prior to trial, that fact can be introduced in court to show the witness is not to be trusted, since the discovery phase of the trial has some broad rules that allow


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refuses to talk to your lawyers prior to trial, that fact can be introduced in court to show the witness is not to be trusted, since the discovery phase of the trial has some broad rules that allow both sides to investigate the others case.).</p>


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<p>In this particular case, the witness being question testifies they do not know (&quot;I don't know/recall&quot; or similar statements are frequently used to avoid perjuring one's self when contradictory evidence is introduced... while it could be a lie, it's hard for a prosecutor to prove if you were faking the lack of knowledge or if you really forgot.  If you say no and it turns out that you should have known that no was the wrong answer, it's easier to get perjury charges.).   Upon this, the cross-examining attorney, knowing the answer, has the document ready to go and can point to the line and have the witness read the answer for the court (or as I was taught by an attorney coach on my mock trial team, the better way is for the attorney to hand a copy of the doc to the witness and say &quot;Please read along as I read out loud...&quot; and then read the part of the document that is relevant. This is so the witness can't try to recover by reading it in a favorable tone or read


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say &quot;Please read along as I read out loud...&quot; and then read the part of the document that is relevant. This is so the witness can't try to recover by reading it in a favorable tone or read parts you might not want read.).</p>


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<p>In criminal law, this is important for both sides.  If the Defense can make you believe a prosecution attorney is unreliable... then what does that say about other elements of the case?  If in doubt, you must acquit.   For the prosecution, if the defense witnesses look reliable, there is doubt to the veracity of your case... and in order for you to win, the jury must not have any doubt you got it right.</p>


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Answer 4: <p>Often, if documents are disclosed by a certain date, or are offered into evidence as business records, but the court disagrees that they constitute business records, those documents are inadmissible into evidence (either for non-disclosure or under the hearsay rule).</p>
<p>But, a document can be used to refresh the recollection of a witness even if the document itself isn't admitted into evidence.</p>
<p>There is a good chance that in this case the documents weren't admissible into evidence for some reason that the allowed use of inadmissible documents to refresh recollection was used as a work around for this problem.</p>


Tags: united-states, court, criminal-procedure


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Question Title: Still be questioned without a solicitor?

Question Body: <p>In the United Kingdom, England and Wales jurisdiction, when someone is arrested they are read a caution.</p>
<p>If at that moment, the person declines to give a statement, and then asks for a solicitor, can the police continue asking questions?</p>
<p>Would they be allowed to use the suspects 'no comment' answers, as they have not yet spoken to a solicitor, against them?</p>
<p>The above scenario applies before they reach the police station and are provided with legal advice by a solicitor.</p>


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Answer 1: <p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<p>Re:</p>
<blockquote>
<p>If at that moment, the person declines to give a statement, and then asks for a solicitor, can the police continue asking questions?</p>
</blockquote>
<p>It doesn't work that way.</p>
<p>The caution given on arrest does not ask for, nor require, the suspect &quot;to give a statement&quot; at that time. It says:</p>
<blockquote>
<p>You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.</p>
</blockquote>


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</blockquote>
<p>Unless there is a genuine and urgent necessity (see below), there is to be no questioning about the suspected offence until they are booked in to Custody, which when they are informed of their rights; including their entitlement to free and independent legal advice (FILA) under <a href="https://www.legislation.gov.uk/ukpga/1984/60/section/58?timeline=false" rel="nofollow noreferrer">s.58(1)</a> Police and Criminal Evidence Act 1984 (PACE).</p>
<p>That said, there are two occasions when someone under arrest can be (lawfully) asked questions before being booked in to Custody:</p>
<ul>
<li>The first is when an <em>Urgent Interview</em> is necessary.  See <a href="https://www.gov.uk/government/publications/pace-code-c-2019/pace-code-c-2019-accessible#bookmark33" rel="nofollow noreferrer">Paragraph 11.1</a> PACE Code C:</li>
</ul>
<blockquote>


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</ul>
<blockquote>
<p>11.1 <strong>Following a decision to arrest a suspect, they must not be interviewed about the relevant offence</strong> except at a police station or other authorised place of detention, unless the consequent delay would be likely to:</p>
<p>(a) lead to:</p>
<blockquote>
<p>interference with, or harm to, evidence connected with an offence;</p>
<p>interference with, or physical harm to, other people; or</p>
<p>serious loss of, or damage to, property;</p>
</blockquote>
<p>(b) lead to alerting other people suspected of committing an offence but not yet arrested for it; or</p>
<p>(c) hinder the recovery of property obtained in consequence of the commission of an offence.</p>
<p>Interviewing in any of these circumstances shall cease once the relevant risk has been averted or the necessary questions have been put in order to attempt to avert that risk.</p>
</blockquote>
<ul>


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</blockquote>
<ul>
<li>The other is incidental questions that are not about the suspected offence. e.g. for public safety or officer welfare, or to facilitate a proportionate search - &quot;<em>Before I search you, do you have any weapons or needles on you?</em>&quot; Or &quot;<em>Which is your bedroom?</em>&quot;</li>
</ul>
<p>Any questioning outside of these could be ruled as a significant or substantial breach of PACE so may be excluded following a defence application under <a href="https://www.legislation.gov.uk/ukpga/1984/60/section/78?timeline=false" rel="nofollow noreferrer">s.78 of PACE</a>, and the officer would undoubtedly have to answer for their actions at e.g. a misconduct hearing.</p>


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Question Title: What does in between them mean?

Question Body: <blockquote>
<p>An applicant seeking registration to act as a trustee shall have in its employment a minimum of two persons who, <strong>between them</strong>, have atleast five years experience in activities related to securitisation and atleast <strong>one among</strong> them shall have a professional qualification in law from any university or institution recognised by the Central Government or any State Government or a foreign university.</p>
</blockquote>
<p>What does in between them mean in the above statement do both the employee should have 5 years experience each or the experience jointly be of 5 years.</p>


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Answer 1: <p>What it means is that when you add together the total experience of  both employees, it must be equal to or greater than 5 years.</p>
<p>So Employee A and B can have experience such that one has 1 year and the other has 4 or one has 2 and the other 3 or one has Zero and the other has 5 (debatable... if both employees need experience this might be out of the question).  They could work the same calendar years and count them as separate years of experience.</p>


Tags: interpretation


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Question Title: Do not stop before reaching the crosswalk lines

Question Body: <p>The <a href="https://web.archive.org/web/20230205204316/https://www.alberta.ca/other-roadway-markings.aspx" rel="nofollow noreferrer">link</a> says &quot;drivers should not stop in a 'no stopping zone' because they may interfere with other vehicles that are turning from one roadway to another. This is usually where large vehicles need extra room to turn.&quot;</p>
<p>Is the link suggesting that there is no need to stop before reaching the crosswalk lines? But isn't it dangerous for the pedestrians in this case?</p>
<p>I have attached an image in that link to clarify my question.</p>
<p><a href="https://i.stack.imgur.com/0lL8i.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/0lL8i.png" alt="enter image description here" /></a></p>


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Answer 1: <p>Both rules apply.  You must as always stop before the crosswalk, and <em>additionally</em> you must not stop inside the no stopping zone.  Therefore, in order to comply with both, you have to stop <em>behind</em> the no stopping zone.</p>
<p>Another way to look at it is that it is equivalent to having a stop line that is further back from the intersection than usual.  The large X in between just provides a visual indication that this is the stop line for the intersection and that you should not go past it until you have the right of way to proceed.</p>
<p>In <a href="https://goo.gl/maps/km4SkCpuW7axecfs5" rel="nofollow noreferrer">this aerial photo of 2 St SW and 17 Ave SW in Calgary</a>, you can see that the back line of the no stopping zone is wider, apparently the same width as the stop line in the adjacent lane, which is another signal that the back line serves as a stop line.</p>


Tags: canada, traffic, alberta


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Question Title: Is Google legal?

Question Body: <p>Google is indexing other people's websites across the planet. To some extents, the images on Google images search are also taken from websites contents. And all of that happens without owner's consent or any sort of agreement. (I saw some of my website content on google search image). So my questions is: </p>

<ol>
<li>To which extent someone can use other people's web content?</li>
<li>What rules are regulating search engines?</li>
</ol>


Answer 1: <p>The images and text are copyright (if they are). What Google does with them is fair use/dealing.</p>


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Answer 1: <p>The images and text are copyright (if they are). What Google does with them is fair use/dealing.</p>

<p>It works like this: if Google's bot can find them then you (the owner) have put them on the World Wide Web <em>presumably</em> because you want people to see them, effectively you have put them on public display. Google is assisting you in that endeavour by enabling people who are looking for what you are displaying to find it. Their use of your material <em>enhances</em> its value to you which is a rock solid defence.</p>

<p>If you don't want your stuff on public display then a) don't put it on a public part of the web - there are plenty of private cloud storage facilities or B) stick a file in your website that tells bots not to index it.</p>


Tags: copyright


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Question Title: Copyrighted Music, Personal Use, and not-for-profit Video Games?

Question Body: <p>I am creating a video game that is open-source and will be distributed for free (i.e. not-for-profit) on itch.io.
I would like to use a copyrighted song as part of the background music.</p>
<p>My question is, because I am not making any income from the distribution of the game, would the use of the copyrighted music fall under Personal Use?</p>
<p>I am located in Australia, and itch.io operates out of the USA.
Thanks.</p>


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Answer 1: <blockquote>
<p>My question is, because I am not making any income from the distribution of the game, would the use of the copyrighted music fall under Personal Use?</p>
</blockquote>
<p>There are some &quot;private use&quot; exemptions in <a href="https://www.legislation.gov.au/Details/C2019C00042" rel="nofollow noreferrer">Australian copyright law</a> but they have some fairly narrow conditions.</p>
<p>These exemptions are fairly narrow because the point of copyright law is not to prevent you from making money with someone else's intellectual property but to protect the other person's ability to make money with it.  If Alice writes a song and Bob distributes it free of charge, Alice loses revenue.  Similarly, it is Alice's right to decide whether that song should be included in a freely available open-source software product, and her right to decide whether to allow that use without charge or in exchange for a license fee.</p>


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Answer 2: <p>You are distributing the music to other people, so this doesn’t look like personal use at all.</p>
<p>You can find music that is sold for exactly this purpose cheaply. (Similar to stock images that can be quite cheap). The seller probably knows how to combine this with open source.</p>
<p>Or you can modify your code so that it lets the user choose music on their computer, assuming that they have the right to play that music.</p>


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<p>Or you can modify your code so that it lets the user choose music on their computer, assuming that they have the right to play that music.</p>
<p>But also to keep in mind: If you create software including proprietary music, and manage to do this legally (fair use, private use, no profit or whatever arguments to use the music), and distribute everything under an &quot;open source&quot; license, then you give <em>everyone</em> permission to copy this as long as they follow the open source license. With the GPL license for example you claim that you give ME the right to copy everything, turn it into a commercial product, and sell it for $100 a copy, as long as I follow the GPL license. But whatever legal excuses you had to copy the music don't apply to me, so we have a legal problem.</p>


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Answer 3: <p>As gnasher729 says, it's clearly not personal use. I'd like to consider the idea that it's not-for-profit.</p>
<p>If you're using itch.io, there seems to be no way to ensure you would not be paid for the game. <a href="https://itch.io/docs/creators/pricing" rel="nofollow noreferrer">Itch.io's website</a> tells us :</p>
<blockquote>
<p>On itch.io, any price you set is the minimum price. Even if you're
giving your content away for free, downloaders will still have the
opportunity to send you money before they download.</p>
</blockquote>
<p>Even if there was a way to ensure you received nothing, itch.io is a commercial entity, so their making games available would count as commercial activity irrespective of whether any payment was made to the individual developers.</p>


Tags: copyright, music, video-games


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Question Title: Can i request a religious forum to delete my posts for GDPR compliance?

Question Body: <p>It's a forum discussing religious stances and personal practice.</p>
<p>Is it possible to request posts to be removed along with the account registry?</p>
<p>As i understand it, forums in general don't have to delete the content and so i wonder if forums dedicated to religion are treated in the same way.</p>


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Answer 1: <p>The GDPR means that people can process and store your data only on a legal basis, and that they have to document their processes and their compliance within the rules.</p>
<p>They can process data</p>
<ul>
<li>based on your (informed and revocable) consent,</li>
<li>in accordance with a contract with you,</li>
<li>if required by law,</li>
<li>to safeguard the vital interests of others (likely not applicable),</li>
<li>as a government agency (almost certainly not applicable),</li>
<li>and finally in a balance of legitimate interests.</li>
</ul>
<p>The first bullet point is the easiest for them and for you, until you ask them to delete. Then they have to use another justification. A forum may argue that keeping discussion threads intact outweighs the desire to have them deleted. Here it <strong>may</strong> matter that data about religious beliefs is one of the specially protected categories. This might shift the balance of interests.</p>


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Answer 2: <h2>Religious forums are not special</h2>
<p>There are no special rules for a forum that deals in religious speech. If a normal forum may retain your posts, then a religious forum may too.</p>
<p>They have to remove all identification of you if you exercise your right to be forgotten, but can do so by anonymizing your posts.</p>


Tags: gdpr


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Question Body: <p>As a layman interested in the law, I'm facing a bit of a conundrum posed by my cousin.</p>
<p>Here are the facts:</p>
<ol>
<li>A records company, M Ltd, has created (e.g. written code for, trained etc.) an <strong>AI</strong> that can generate music. The AI generates music when it is prompted. It can be prompted by either uttering a few random words into a microphone, or by verbally providing it with a cluster of notes (they could be random or have a deliberate structure).</li>
<li>Person YT, an employee of M Ltd, wishes to try the AI out. He has consented to M Ltd's IP policy, which takes the position of the law on who holds the copyright to any copyrightable work created (i.e. the employer holds the copyright over the copyrightable work its employees create).</li>
<li>Person YT utters a few random words and provides the AI with a random arrangement of notes.</li>
<li>The AI generates a song.</li>
</ol>
<p>I have two questions:</p>
<ol>


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<li>Person YT utters a few random words and provides the AI with a random arrangement of notes.</li>
<li>The AI generates a song.</li>
</ol>
<p>I have two questions:</p>
<ol>
<li>With the fact pattern I have presented, can either the AI or M Ltd hold the copyright to the song the AI has generated?</li>
<li>If Person YT only uttered random words, or only provided the AI with random notes, would it make a difference?</li>
</ol>
<p>I am mostly indifferent as to jurisdiction. I only have a slight preference for either the EU, UK or US.</p>
<p>Thanks in advance.</p>


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Answer 1: <h2>Nobody in the <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></h2>
<p><a href="https://www.federalregister.gov/documents/2023/03/16/2023-05321/copyright-registration-guidance-works-containing-material-generated-by-artificial-intelligence" rel="nofollow noreferrer">The AI generaged the music and the contribution of the human does not qualify for authirship, therefore it is <strong>uncopyrightable</strong>.</a></p>
<blockquote>
<p>II. The Human Authorship Requirement</p>


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<blockquote>
<p>II. The Human Authorship Requirement</p>
<p>In the Office's view, it is well-established that copyright can protect only material that is the product of human creativity. Most fundamentally, the term “author,” which is used in both the Constitution and the Copyright Act, excludes non-humans. The Office's registration policies and regulations reflect statutory and judicial guidance on this issue.</p>
<p>[...]</p>
<p>III. The Office's Application of the Human Authorship Requirement</p>
<p>It begins by asking “whether the `work' is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.” [23]


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In the case of works containing AI-generated material, the Office will consider whether the AI contributions are the result of “mechanical reproduction” or instead of an author's “own original mental conception, to which [the author] gave visible form.” [24]</p>
<p>[....]</p>
<p><strong>When an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship.</strong>[31]
As a result, <strong>that material is not protected by copyright and must be disclaimed in a registration application.</strong>[32]</p>
</blockquote>
<p>Since there is no copyright, the question who owns it is moot.</p>


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Question Body: <p>The IT Act (2000) §76 states that any person liable for an offence under the IT Act (2000) shall suffer confiscation of the IT device on which the confiscation has been made. Are there any provisions for how long a confiscation can or cannot last? I researched the act(including drafts) and couldn't find anything regarding this.</p>
<blockquote>
<p>Any computer, computer system, floppies, compact disks, tape drives or any other accessories related thereto, in respect of which any provision of this Act, rules, orders or regulations made thereunder has been or is being contravened, shall be liable to confiscation:</p>


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<p>Provided that where it is established to the satisfaction of the court adjudicating the confiscation that the person in whose possession, power or control of any such computer, computer system, floppies, compact disks, tape drives or any other accessories relating thereto is found is not responsible for the contravention of the provisions of this Act, rules, orders or regulations made thereunder, the court may, instead of making an order for confiscation of such computer, computer system, floppies, compact disks, tape drives or any other accessories related thereto, make such other order authorised by this Act against the person contravening of the provisions of this Act, rules, orders or regulations made thereunder as it may think fit.<br><a href="https://www.indiacode.nic.in/show-data?actid=AC_CEN_45_76_00001_200021_1517807324077&amp;sectionId=13109&amp;sectionno=76&amp;orderno=100" rel="nofollow noreferrer">source</a></p>
</blockquote>


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Answer 1: <h2>Confiscation</h2>
<p>Confiscation comes from Latin &quot;confiscatio&quot; (“to declare property of the fiscus” - To declare the property of the public treasury) is the act of the government seizing an item permanently under its direct meaning.</p>
<h2>Seizure</h2>
<p>A property that is <strong>seized</strong> is taken by the government to do something with it, such as taking the car with the broken window while investigating a crime, temporarily parking the trucks for highway construction, or actually building the highway on.</p>
<p>The seized item or land can become government property by forfeiture, court order (at which point it is confiscated), or might be returned at some point if it isn't confiscated. If compensation is required, usually money is returned instead of the item.</p>


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<p>In the examples, the outcome of the two latter is somewhat easy to deduce: the land for parking is returned, and the owner of the land under the highway instead gets payment for his land that becomes government property.</p>
<p>The car with the smashed window would be generally returned to its real owner if he was not involved in the crime.</p>
<h2>Correct Order Of Operations</h2>
<p>So technically, the Police <em>first</em> seize an item, then the court rules the item to be confiscated, which means it becomes government property.</p>
<h3>Forfeiture?</h3>
<p>Forfeiture is only different from Confiscation in the process of how it happens. Forfeiture and Confiscation both have the same outcome but at times different means. In older legal texts, the two words always come together: Confiscation and Forfeiture.</p>


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<p>In modern parlance, Confiscation is usually used when the seizure of an illegal thing happens, such as drugs, where Forfeiture is used when a legal thing is demanded by the government, such as land.</p>
<p>See also, in the US, <a href="https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United_States" rel="nofollow noreferrer">Civil Asset Forfeiture</a> and Criminal Asset Forfeiture.</p>
<h2>India &amp; Confiscation</h2>
<p>In India, there are actually many more laws that confiscate or forfeit items or land to the government, <a href="https://advocatechenoyceil.com/2020/03/21/confiscation-and-forfeiture-of-properties-in-india" rel="nofollow noreferrer">as this article elaborates</a>. The most relevant one seems to be the Criminal Procedure Code (1973), which deals with property <em>in general</em>, when criminal charges are dealt with:</p>
<blockquote>
<ol start="452">
<li>Order for disposal of property at conclusion of trial.—(1) When an inquiry or trial in any Criminal


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<blockquote>
<ol start="452">
<li>Order for disposal of property at conclusion of trial.—(1) When an inquiry or trial in any Criminal
Court is concluded, <strong>the Court may make such order as it thinks fit for the disposal</strong>, <strong>by destruction, confiscation</strong> or
delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document
produced before it or in its custody, or regarding which any offence appears to have been committed, or which has
been used for the commission of any offence</li>
</ol>
</blockquote>
<p>This paragraph puts the court in charge of determining if, how, and when the property is returned to anyone or if the government owns a shiny new thing or has to put it into a crusher. In the case of the specific paragraph in the IT Act (2000), the court is granted an <strong>additional</strong> option besides confiscation:</p>


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<p>If the judge is satisfied that the person charged was <em>not</em> the culprit for the illegal software, the court may grant <em>other</em> orders enumerated besides seizing the item.</p>


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Question Title: What happens if an insurance company does not mention a critical clause of a policy during a telephone purchase?


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Question Body: <p>Suppose one phones an insurance company and arrange and pays for car insurance.  One then receives the documentation and there is an additional clause that was not mentioned that invalidates the insurance.  Is this clause valid?</p>
<p>The story that prompts this question is real, but I am not asking for advice as I have solved the problem with communication.  I just wonder what would have happened had I said nothing.</p>


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<p>The story that prompts this question is real, but I am not asking for advice as I have solved the problem with communication.  I just wonder what would have happened had I said nothing.</p>
<p>I just phoned my insurance company to arrange my car insurance for next year.  We went through all the details and I was about to accept the offer when I mentioned that my brother was visiting from the US.  At that point the salesperson informed me that the insurance would not cover my brother, as they must be resident in the UK.  At no point prior to this had they mentioned such a requirement.  I therefore declined their offer.  I have done this many times before an it has not been an issue.  However had I not mentioned this I would have accepted the offer.  They may well have sent me a verbose contract with that term in there, but I may not have read it and my brother would have driven the car assuming they were insured.</p>
<p>If this had occurred would my brother have been insured?</p>


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<p>If this had occurred would my brother have been insured?</p>
<p>From answers it seems it may be relevant how frequent such a clause is.  I have two old car insurance contracts and neither mention such a residence requirement.  I have found many more &quot;Certificate of Insurance&quot; with my brother as a named driver and they make no mention of the requirement.  It is those that must be shown to the police on request to prove one has insurance.  <a href="https://assets.wearemarmalade.co.uk/shared/assets/files/privatecar/Classic-PolicyWording.pdf" rel="nofollow noreferrer">I have found a policy document online that does not appear to mention such a requirement</a>.</p>


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Answer 1: <p>In any sane jurisdiction, the clause would hold.</p>
<p>By and large, the legal fiction is that one has read and agreed to execute the entirety of the contracts they signed. If it was otherwise, no contract of substantial length would ever be enforceable upon individuals; yet such contracts are routinely offered and enforced (look at the terms&amp;conditions of any internet website that sells stuff).</p>


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<p>It is absolutely normal that a phone sale would gloss other minor details of the contract, and implicitly refer to the written text for the finer points. If the specific point had been raised in the phone call, and the salesperson erroneously told you X when in fact the contract read Y, you might have a case, but even then it is not necessarily a strong one (you signed the contract <em>after</em> having called; you might have changed your mind when reading the actual text, and you paying the insurance monthly bill is evidence that you agreed with the contract as-formed).</p>
<p>There are some exceptions to that general principle:</p>
<ol>


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<p>There are some exceptions to that general principle:</p>
<ol>
<li><strong>General conditions of validity of a contract.</strong> For instance, in <a href="/questions/tagged/france" class="post-tag" title="show questions tagged &#39;france&#39;" aria-label="show questions tagged &#39;france&#39;" rel="tag" aria-labelledby="tag-france-tooltip-container">france</a>, a contract must have a <a href="https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000032040911" rel="nofollow noreferrer">&quot;definite and legitimate content&quot;</a>. If we sign a contract for &quot;a few apples against a few euros&quot;, and then I give you five apples, you owe me zero euros because the contract was not specific enough to be enforceable. If the whole contract is unenforceable, the clause falls with it.</li>


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<li><strong>General conditions of a validity of a clause.</strong> Specific clauses can be invalidated without bringing down the whole contract (for instance, &quot;in case X fails to perform their obligations under clause 70Z, Y is allowed to take a pound of flesh from X&quot;).</li>
<li><strong>Specific conditions on certain clauses.</strong> Consumer laws in some jurisdictions make certain clauses of certain contracts either invalid entirely, or only valid if they were read aloud to the prospective buyer, or only valid in certain forms. (For instance, in France, a sale of real estate between individuals must be notarized.)</li>
</ol>
<p>I would be extremely surprised if the rule in the OP’s example (residence condition to bring another driver on the insurance policy) would fail under any of those.</p>


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Answer 2: <p>Aside from what others have mentioned, there are a few more barriers to you making a successful claim due to not having been able to read the contract <em>yet</em>.</p>
<p>First is what is reasonable and customary in the market.  If the &quot;no non-residents&quot; clause is boilerplate language found in virtually <em>any</em> auto insurance contract, then you would have no standing to say that as a consumer you were reasonable to presume it would be in this contract.</p>
<p>Second, you had a question in your mind about a non-resident visitor being insured if you drove the car.  Why didn't you ask the agent about that when you were on the telephone?  Here you are likely to face a &quot;reasonable person&quot; test: would a reasonable person in your shoes think it prudent to ask?</p>


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<p>And conversely to the first two, if the insurer had an <em>unusual</em> term/condition contrary to a reasonable insurance buyer's presumption (e.g. only insures EVs), the onus would be on the insurer to make this clear.</p>
<p>Third, there's the question of whether you could have searched the answer on your own, and here the Internet puts you at disadvantage. For instance it's difficult to make the argument that &quot;the claim happened in between when I signed up for the policy and when I finally received a paper copy&quot; when they'll cheerfully deliver you a copy on request via Internet the moment you hang up.</p>


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<p>Indeed <a href="https://www.citizensadvice.org.uk/consumer/insurance/insurance/cancelling-an-insurance-policy/" rel="noreferrer">UK gives you a 14 day &quot;cooling off period&quot;</a> to collect your copy of the policy by mail if needed, read it, and cancel without consequence. Such things are a double edged sword: it creates a presumption that on day 15 you have read everything you need to, and agree to the contract as written.</p>
<p>If a claim arises in that 14 days? Well, that's the case where the insurer is going to raise those three points I mentioned.</p>


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Answer 3: <p><a href="/questions/tagged/washington" class="post-tag" title="show questions tagged &#39;washington&#39;" aria-label="show questions tagged &#39;washington&#39;" rel="tag" aria-labelledby="tag-washington-tooltip-container">washington</a></p>
<p>The nature of your insurance contract is spelled out in the written policy which you will <a href="https://app.leg.wa.gov/rcw/default.aspx?cite=48.18&amp;full=true" rel="noreferrer">by law</a> receive in a timely fashion. There is no specific burden on the insurance company to recite specifics of the contract during a phone sale, other than those necessary to determine what is being insured (vehicle; liability without comprehensive; statutory minimum on liability).</p>


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<p>Therefore, until you receive and read the insurance policy, you do not know exactly what is covered, and you are sort of buying a pig in a poke. <a href="https://app.leg.wa.gov/rcw/default.aspx?cite=46.29&amp;full=true" rel="noreferrer">Liability insurance</a> is somewhat different in that it is mandatory by law and more-highly regulated, and you can easily know in advance what is covered (they don't construct ad hoc contracts, you pick from a standard form). You are expected to know of any relevant limitations on coverage. For example, personal vehicle liability insurance does not cover for-hire livery service, you would need a separate policy. If you fail to mention this need when talking on the phone to the agent, you would not be covered if you then got in an accident.</p>
<p>Verbose contracts are ubiquitous: verbosity does not invalidate the provisions of a contract.</p>


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Question Body: <p>In 2021, the Biden administration created a loan forgiveness program that excluded white farmers. It was ruled unconstitutional and a violation of equal protection. (<em>Wynn v. Vilsack et al</em>)</p>
<p>Washington (state) recently passed a law that gives low interest loans but bars applicants of certain races. (HB 1474)</p>
<p>How did Washington try to change this law to avoid being struck down? Presumably Washington legislators are aware of the previous ruling and have modified the new law accordingly.</p>
<p>Ideas:</p>
<ol>
<li>Reduction of loan principle v. loan interest?</li>
<li>Federal law v. state law?</li>
<li>Farm loans v. home loans?</li>
</ol>
<p>They seem to be aware that there is likely to be a constitutional challenge, since Sec 14-15 specify what to do in the case when it is held unconstitutional (it disperses the money without regard to race).</p>


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<p>EDIT: The law is explicit that it applies to anyone of a certain &quot;race, national origin, or sex&quot;.  The races, national origins, and sexes will be determined by a committee. Is there precedent for racial testing? <em>Wygant v. Jackson Bd. of Educ</em> and <em>Coral Construction Co. v. King County (1991)</em> limit historical arguments about past discrimination to discrimination by the government in the recent past. Covenants were private and ceased in 1968.</p>
<p>EDIT: Still haven't seen an answer that answers how this is consistent with <em>Wygant v. Jackson Bd. of Educ</em> and <em>Coral Construction Co. v. King County (1991)</em>. Can the government impose race tests based on claims on non-governmental action in the distant past?</p>


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Answer 1: <p>Washington's <a href="https://lawfilesext.leg.wa.gov/biennium/2023-24/Pdf/Bills/Session%20Laws/House/1474-S2.SL.pdf?q=20230527161703" rel="noreferrer">HB 1474</a> actually does not give low interest loans to all but white borrowers. It initiates the process of creating a bureaucracy that will eventually provide loans for down payment and closing cost assistance for first-time home buyers (a loan that must be repaid when the house is sold). There are various qualifications that a program participant must meet, such as below-average income, being a resident, and <em>also</em> they must be a state resident before April 11, 1968 or a descendant of someone who was, and</p>
<blockquote>
<p>was or would have been excluded from homeownership in Washington state
by a racially restrictive real estate covenant on or before April
11,28 1968</p>
</blockquote>


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<blockquote>
<p>was or would have been excluded from homeownership in Washington state
by a racially restrictive real estate covenant on or before April
11,28 1968</p>
</blockquote>
<p>The &quot;would have&quot; part refers to the fact that a person may have been interested in buying a particular house but gave up when they were told that there is a racially restrictive covenant associated with the property. It is then the duty of the covenant homeownership program commission to determine what such covenants may have existed, and also</p>
<blockquote>
<p>to what extent existing programs and race-neutral approaches have been
insufficient to remedy this discrimination and its impacts</p>
</blockquote>
<p>The law simply states that eligibility is based on</p>
<blockquote>
<p>a recorded covenant or deed restriction that includes or included
racial restrictions on property ownership or use against protected
classes


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<blockquote>
<p>a recorded covenant or deed restriction that includes or included
racial restrictions on property ownership or use against protected
classes
that are unlawful under <a href="https://app.leg.wa.gov/rcw/default.aspx?cite=49.60.224" rel="noreferrer">RCW 49.60.224</a></p>
</blockquote>
<p>which would include any covenants against sale to Irish or any other anciently discriminated-against Europeans, if such are found to exist.</p>
<p>Referring to <a href="https://casetext.com/case/wynn-v-vilsack" rel="noreferrer">Wynn v. Vilsack</a>, it was noted that</p>
<blockquote>
<p>A strong basis in evidence cannot rest on an amorphous claim of
societal discrimination, on simple legislative assurances of good
intention, or on congressional findings of discrimination in the
national economy. However, a governmental entity can justify
affirmative action by demonstrating gross statistical disparities
between the proportion of minorities hired and the proportion of


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national economy. However, a governmental entity can justify
affirmative action by demonstrating gross statistical disparities
between the proportion of minorities hired and the proportion of
minorities willing and able to do the work.</p>
</blockquote>
<p>Analogous reasoning would apply to government action that deprived individuals of the opportunity to purchase a home based on their race. If (when) this new law is challenged, one of the central questions would be what remedial actions the government(s) took to correct this past discrimination. While it is clear that such discrimination was ended in 1968, it is far from clear that there was any remedial action taken by the state. Of course there is always the possibility that SCOTUS will discover new law that changes the landscape, but as it stands, such corrective actions are legal.</p>


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Question Body: <p>I inherited an empty lot in a residential neighborhood in Kingsville, Texas from my grandfather when he died several years ago.  I have been paying taxes on this property since then, but I would like to stop paying taxes on this property and abandon it. Is there a legal way to go about this?</p>
<p>The city has recently been sending me notices telling me that I need to have the yard maintained. They are threatening to fine me if I don't do this.</p>
<p>I tried to sell this lot a few years ago, and that is when I discovered that the title on the property is not clear. My grandfather apparently paid cash for it when he bought it twenty years ago, and he didn't bother have the title transferred over in a legal way. The original owner has since died and his three children now have some claim on this property.</p>


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<p>The county lists me as the owner, so I'm responsible for upkeep and taxes, and yet I can't sell it because the title is not clear. I have consulted a real estate lawyer, and he wants to charge me more money to try to fix things than the property is worth, and without any guarantees that he can clear the title.</p>
<p>Is there anyone versed in real estate law that can offer advice? Why can't I just abandon this lot? What can the county do to me if I just stop paying taxes? What can the city do to me if don't maintenance the yard and end up getting fines? I don't live anywhere near this town -- I'm 250 miles away in Houston. My poor grandfather thought he was doing me a favor, but it's ended up being a curse.</p>


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Answer 1: <p>Sometimes you can't. In Washington, for example, it is possible to <a href="https://app.leg.wa.gov/rcw/default.aspx?cite=11.86&amp;full=true" rel="nofollow noreferrer">disclaim property</a>, because RCW 11.86.021 says</p>
<blockquote>
<p>(1) A beneficiary may disclaim an interest in whole or in part, or
with reference to specific parts, shares or assets, in the manner
provided in RCW 11.86.031.</p>
</blockquote>
<p>and there is a procedure for writing up and filing that disclaimer. However, there is a time limit that you have to do it</p>
<blockquote>
<p>by nine months after the latest of: (a) The date the beneficiary
attains the age of twenty-one years; (b) The date of the transfer; (c)
The date that the beneficiary is finally ascertained and the
beneficiary's interest is indefeasibly vested; or (d) December 17,
2010, if the date of the transfer is the date of the death of the
creator of the interest and the creator dies after December 31, 2009,


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2010, if the date of the transfer is the date of the death of the
creator of the interest and the creator dies after December 31, 2009,
and before December 18, 2010</p>
</blockquote>
<p>and RCW 11.86.051 gives a list of reasons why you cannot disclaim an interest. &quot;Indefeasible&quot; means &quot;you can't get out of it&quot;.</p>
<p>If you fail to pay taxes on real estate, it can be <a href="https://statutes.capitol.texas.gov/Docs/TX/htm/TX.33.htm" rel="nofollow noreferrer">seized and sold</a> by the county to satisfy the tax delinquency. The county will then attempt to sell the property, perhaps for exactly the amount of taxes owed. That sale &quot;clears&quot; the title so that the purchaser does not have to worry about a could over the title (Sec. 34.01.(n) of the Texas tax code).


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The city can also separately assess you for violation of whatever ordinance they are concerned with: there will be some procedure for the abatement of the nuisance (weeds, usually), an assessment which is made against the property. Notice is given to the owner (or, the person they think is the owner), but the &quot;risk&quot; is shouldered by the property.</p>


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Question Title: In Texas is it legal for my employer to pay two separate wages

Question Body: <p>I've been trying to find this answer for a minute, my question is in Texas is it illegal for my employer to pay two separate wages on the same stub? Example I have a CDL Class A they're giving me one wage while driving the CDL Vehicles then ask me to work another day not on the required CDL license truck and pay me a lower wage driving the other vehicle. Is that legal or illegal in Texas</p>


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Answer 1: <p>First, <a href="https://texas.public.law/statutes/tex._labor_code_section_62.003" rel="nofollow noreferrer">Texas law</a> requires the employer to give a written earnings statement to any employee which reports the rate of pay, the total amount of pay, deductions, and hours worked if the job is paid at an hourly rate. The law also says that an earnings statement may be in any form determined by the employer. Second, there is no law requiring there to be a single earnings statement or a combined statement, in case a person is paid at different rates, the requirement is simply that the information must be provided. It is legal to hire a person to work at different rates, as long as they have some mechanism for tracking what a person is doing. It is <em>required</em> that they pay you a different rate for working more than a certain number of hours, which will therefore be reflected in the earnings statement.</p>


Tags: payment


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Question Title: Can a person *choose* to be a citizen?

Question Body: <p>As a layman, it appears to me that citizenship is thrust upon an individual. This may happen by accident of birth, or choice.</p>
<ul>
<li>Can a person relinquish citizenship without becoming a citizen/permanent resident of another nation?</li>
<li>What, if any, global legislation/accord makes it mandatory for an individual to be a citizen of atleast one nation?</li>
</ul>
<p>The bottom line is what forms the title of this question - Can a person be a citizen by choice?</p>


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Answer 1: <p>@DaleM isn't wrong, but some elaboration is in order.</p>
<ol>
<li><p>You (almost always) gain your citizenship (or nationality) in the first instance, at birth, without the agreement or assent of you or your parents. It is thrust upon you.</p>
</li>
<li><p>Usually, your country of citizenship must consent to end your citizenship (or authorize you to do so unilaterally) under that country's laws.</p>
</li>


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</li>
<li><p>Usually, your country of citizenship must consent to end your citizenship (or authorize you to do so unilaterally) under that country's laws.</p>
</li>
<li><p>Once you have citizenship or nationality, in practice, in most countries, you can generally only renounce your citizenship if you contemporaneously or already have a citizenship somewhere else. You are at a minimum strongly dissuaded from doing so and are not a sympathetic candidate for relief under laws related to statelessness if you willfully put yourself in this position knowing the consequences. This is a feature of the citizenship laws of most countries in order to implement international treaties designed to prevent statelessness which are widely adopted.</p>
</li>
<li><p>When an adult is naturalized as a citizen of a new country, usually, their old citizenship is revoked by operation of law under the laws of their old country.</p>
</li>


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</li>
<li><p>When an adult is naturalized as a citizen of a new country, usually, their old citizenship is revoked by operation of law under the laws of their old country.</p>
</li>
<li><p>In many countries, including the U.S., there are high fees and tax consequences for renouncing your citizenship. Any potential tax liabilities in the future that were not yet due under U.S. law (e.g. capital gains taxes an appreciated assets not yet sold, and estate taxes that would be due if the person renouncing their citizenship had died on that date) are owed immediately upon applying to renounce your citizenship.</p>
</li>
<li><p><strong>A stateless person is, subject to quite narrow exceptions, still subject to all of the laws of the place where they are located, including almost all of its criminal laws (except treason) and its tax laws (at least on income earned in that country).</strong></p>
</li>


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</li>
<li><p><strong>A stateless person lacks many rights.</strong> They can't travel internationally (there are exceptions under treaty in some cases, but obtaining those rights is cumbersome at a minimum). They can't vote. They typically aren't entitled to domestic welfare state benefits like national health insurance, disability payments, unemployment benefits, subsidized housing, old age or retirement benefits, etc. They can't work in a licensed or regulated profession. They may not even be able to sign a lease. They may not be allowed to own a company or serve as an officer or director of a company or as a trustee of a trust. They aren't entitled to diplomatic assistance.</p>
</li>
</ol>


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</li>
</ol>
<p><strong>There are many fraudulent legal movements such as the &quot;sovereign citizen movement&quot; (and the <a href="https://www.splcenter.org/fighting-hate/extremist-files/group/moorish-sovereign-citizens" rel="nofollow noreferrer">Moorish Sovereign Citizens</a>) that assert that citizenship is voluntary and that just by disavowing it in some official feeling way, they can be exempt from taxes, court jurisdiction, and/or other laws. This is false and people who act on this fraudulent misinformation often suffer serious legal consequences as a result.</strong></p>


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Answer 2: <h2>Yes, sometimes</h2>
<p>Citizenship laws are unique to each country, however, with respect to any given country a person may:</p>
<ul>
<li>be a citizen,</li>
<li>be a <a href="https://www.immihelp.com/what-is-us-national/" rel="nofollow noreferrer">national</a> but not a citizen,</li>
<li>be eligible to become a citizen by taking some active step(s) - a choice if you will,</li>
<li>be neither a citizen nor eligible to become one.</li>
</ul>
<p>Similarly, each country has its own rules on:</p>
<ul>
<li>if citizenship (or nationality) can be revoked by the government, and if it can, how it can, including if there are protections to prevent <a href="https://en.wikipedia.org/wiki/Statelessness" rel="nofollow noreferrer">statelessness</a>,</li>


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<li>if citizenship (or nationality) can be relinquished by the individual (a choice), and if it can, how it can, including if there are protections to prevent <a href="https://en.wikipedia.org/wiki/Statelessness" rel="nofollow noreferrer">statelessness</a>.</li>
</ul>


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Answer 3: <p>It depends on what you exactly mean by “choose”. For example, many EU citizens living in the UK have the right to apply for Uk citizenship and most of them would receive it (unless you are a serious criminal, for example). So this is quite close to “choosing” to become a Uk citizen.</p>


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Answer 4: <p><a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a></p>
<p>Germany used to operate on the <a href="https://en.wikipedia.org/wiki/Jus_sanguinis" rel="nofollow noreferrer">ius sanguinis</a> principle, citizenship by descent. It is partially transitioning to the <a href="https://en.wikipedia.org/wiki/Jus_soli" rel="nofollow noreferrer">ius soli</a> principle, and there are <strong>some</strong> people born in Germany who received German citizenship in addition to another citizenship and who get asked after turning adult which one they want to <a href="https://de.wikipedia.org/wiki/Deutsche_Staatsangeh%C3%B6rigkeit#Neuregelung_der_Optionspflicht_ab_20._Dezember_2014" rel="nofollow noreferrer">keep</a>.</p>


Tags: citizenship


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Question Title: Does the GDPR&#39;s &quot;right to be forgotten&quot; extend to Google&#39;s search results?

Question Body: <p>I have recently &quot;googled&quot; my own full name and found out that some comments I made during my teens have been indexed by Google. Back then I have used my full name as a user-name on that website. I have deleted those comments from the indexed website successfully and they have now disappeared from the website entirely. However, they still show up on google searches, although if one accesses that website, none of my entries are there anymore, so the way I see it, the website did its job and respected my right to be forgotten.
I wonder if the indexed entry will ever disappear from Google now. This is very concerning for me as I feel that my right to be forgotten is blatantly violated as that Google search entry is still there, even though that entry does not exist anymore.</p>


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Answer 1: <p>Yes. The GDPR's right to be forgotten is even modeled after case law that was developed around Google search results. Thus, you <em>may</em> have a right – depending on your individual circumstances – to order Google to stop showing search results in Europe, where those results relate to you.</p>
<p>Note that this only affects search results in Europe, not searches from other regions. (See CJEU case C-131/12)</p>
<p>In your particular case, there's nothing to do but to wait. Google regularly checks and updates the pages that it has crawled and indexed. This can easily take multiple weeks. But once Google sees that the page no longer contains the information in question, the information will no longer appear in search results. Any process you'd try to accelerate this will probably take longer than just waiting.</p>


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<p>Other sites may be keeping archives of the old version of the page, e.g. the Wayback Machine (<a href="https://web.archive.org" rel="nofollow noreferrer">https://web.archive.org</a>) or <a href="https://archive.is" rel="nofollow noreferrer">https://archive.is</a>. These will not typically be deleted automatically, and due to the way how these sites operate they might not be subject to GDPR.</p>
<hr />
<p>Details on the RTBF:</p>
<ul>
<li><p>The GDPR enshrines a Right to Erasure / RTBF in Art 17.</p>
</li>


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<hr />
<p>Details on the RTBF:</p>
<ul>
<li><p>The GDPR enshrines a Right to Erasure / RTBF in Art 17.</p>
</li>
<li><p>This right only applies under certain circumstances, for example if the personal data was collected based on a “legitimate interest” and you successfully “objected” to further processing. Such an objection would have to override the legitimate interests, and depends on your particular situation – why you want this data to be gone. Sometimes, there might be very good reason to keep the information, for example politicians should not be able to use this mechanism to censor reports of past misconduct.</p>
</li>
<li><p>More relevant in this context is Art 17(3): when the website on which the information was published fulfilled your request to erasure, then,</p>
<blockquote>


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</li>
<li><p>More relevant in this context is Art 17(3): when the website on which the information was published fulfilled your request to erasure, then,</p>
<blockquote>
<p>taking account of available technology and the cost of implementation, [it] shall take reasonable steps, including technical measures, to inform [other] controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data.</p>
</blockquote>
<p>This is legalese for: if someone removed personal data from their public website, they're supposed to tell Google that the information is gone and should be deleted from Google's indexes. This is possible e.g. by providing a <code>sitemap.xml</code> with accurate last-modified times, or by providing appropriate HTTP status codes like “410 Gone” when an entire URL is deleted.</p>
</li>
</ul>


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Question Body: <p>I have recently learned about a high-tech premium bed base that incorporates Bluetooth speakers, plus massage actuators and other features controllable via a smartphone app.</p>
<p>Like many insecure Bluetooth speakers, the ones in the bed base will pair with any Bluetooth device without any form of authentication, not even a pairing button.</p>
<p>This basically allows anyone with a smartphone to:</p>
<ul>
<li><p>Walk within Bluetooth range of the device (for example from the street)</p>
</li>
<li><p>Open their phone and notice the device advertising itself on Bluetooth</p>
</li>
<li><p>Click on it to select it as audio output device</p>
</li>
<li><p>Play any kind of audio file on it</p>
</li>
</ul>
<p>There is no microphone, so it is not possible to remotely record audio. This is not like insecure Bluetooth headsets which allow anyone within range to connect and use the microphone to record.</p>


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<p>Neither hacking nor password is necessary to perform this feat, as the device advertises itself as available for connection, and simply accepts all incoming pairing requests. It may even be possible to control the bed position and massage features remotely.</p>
<p>Now I'm wondering what the legal implications are:</p>
<ul>
<li><p>For someone who does not own the device, yet connects to it (perhaps by mistake) and plays audio on it without the owner's consent, or manages to remotely control the motors...</p>
</li>
<li><p>For the manufacturer: is it legal to even sell this? Can the buyers sue the manufacturer after the neighbor's kids decide to make the bed speakers play heavy metal at 4AM every night, rendering the bed base features unusable?</p>
</li>


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</li>
<li><p>For the owner: I know if someone hosts an insecure WiFi and someone else connects to it and uses it for nefarious purposes, the owner of the insecure WiFi can face consequences. In this case the device uses Bluetooth not WiFi, and it is not connected to the internet, so this should not apply... unless maybe?</p>
</li>
</ul>
<p>I'm definitely not planning to buy one of these (nor prank it) anyway, so I'm not focusing on any particular jurisdiction.</p>


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Answer 1: <p>It is legal for a manufacturer to sell a device which is capable of being misused. For example, a wifi-capable router can be sold even if it is &quot;open&quot; by default. A Bluetooth device has a shorter range than wifi, but in principle can connect to any other device. An owner's legal liability is not different given wifi vs. Bluetooth.</p>


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<p>Whether or not there is criminal liability for a third person who connects to the device also does not specifically depend on whether the device uses Bluetooth technology, as opposed to some other technology. <a href="https://www.law.cornell.edu/uscode/text/18/1030" rel="nofollow noreferrer">18 USC 1030</a> is the general federal law prohibiting &quot;unauthorized access&quot;. In the case of a bed, two legal question arise: is it a <a href="https://www.law.cornell.edu/definitions/uscode.php?width=840&amp;height=800&amp;iframe=true&amp;def_id=18-USC-599163109-692694671&amp;term_occur=999&amp;term_src=" rel="nofollow noreferrer">&quot;computer&quot;</a>, and is it <a href="https://www.law.cornell.edu/definitions/uscode.php?width=840&amp;height=800&amp;iframe=true&amp;def_id=18-USC-695191731-692694672&amp;term_occur=999&amp;term_src=title:18:part:I:chapter:47:section:1030" rel="nofollow noreferrer">&quot;protected&quot;</a>? It is an electronic high speed data processing device which


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rel="nofollow noreferrer">&quot;protected&quot;</a>? It is an electronic high speed data processing device which performs logical, arithmetic, storage and communications facilities, i.e. it is a computer (in the legal sense). It <em>probably</em> is not protected, because it is not &quot;used in or affecting interstate or foreign commerce or communication&quot;, that is, it is not connected to the internet (unless it is). State laws tend to be broader, not having the &quot;interstate commerce&quot; limitation, so accessing the bed would violate <a href="https://app.leg.wa.gov/RCW/default.aspx?cite=9A.90&amp;full=true" rel="nofollow noreferrer">Washington's</a> analog of the federal law. However, under Washington law, the access is probably not &quot;without authorization&quot;. That term is defined as</p>


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<blockquote>
<p>knowingly circumvent technological access barriers to a data system in
order to obtain information without the express or implied permission
of the owner, where such technological access measures are
specifically designed to exclude or prevent unauthorized individuals
from obtaining such information, but does not include white hat
security research or circumventing a technological measure that does
not effectively control access to a computer. The term &quot;without the
express or implied permission&quot; does not include access in violation of
a duty, agreement, or contractual obligation, such as an acceptable
use policy or terms of service agreement, with an internet service
provider, internet website, or employer. The term &quot;circumvent
technological access barriers&quot; may include unauthorized elevation of
privileges, such as allowing a normal user to execute code as
administrator, or allowing a remote person without any privileges to
run code.</p>


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privileges, such as allowing a normal user to execute code as
administrator, or allowing a remote person without any privileges to
run code.</p>
</blockquote>


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<p>One question is whether there is any technological access barrier that the user circumvents (I don't know if it is possible to circumvent &quot;hidden mode&quot;). Since the term &quot;may include ... allowing a remote person without any privileges to run code&quot;, and since playing music on speakers involves running code, then the remote user may be criminally liable. On the third hand, the language of that paragraph (&quot;technological access measures are specifically designed to exclude or prevent unauthorized individuals from obtaining such information, but does not include ... circumventing a technological measure that does not effectively control access to a computer&quot;) clearly indicates a legislative intent to address deliberately overcoming active access barriers and not accidentally connecting to an unprotected, open system. Plus, the law also says that you are accessing the computer &quot;in order to obtain information&quot;, but that is not the purpose of


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and not accidentally connecting to an unprotected, open system. Plus, the law also says that you are accessing the computer &quot;in order to obtain information&quot;, but that is not the purpose of transmitting sound to speakers.</p>


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Question Title: Is there a reason not to use liability insurance?

Question Body: <p>I was recently hit by a car while riding my bike home from work, and the police determined that the driver was at fault and wrote her a ticket. She is insured, and presumably has enough liability coverage to take care of my damages (mainly bike repair/damaged clothing, etc. and no serious injuries).</p>

<p>However, she has insisted that she will just write me a check for the damages and doesn't want to go through insurance. Her exact quote from our email exchange was "I am not reporting to insurance. Long story."</p>

<p>I'm conflicted about this because on the one hand, I'm getting reimbursed either way, but on the other, she seems to just want this problem to go away and may be affecting generosity to avoid higher premiums.</p>

<p>Is there a legal, or at least ethical, obligation to report this to her insurance company?</p>


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<p>Is there a legal, or at least ethical, obligation to report this to her insurance company?</p>


Answer 1: <p>She damaged <em>you</em> - your beef is with her.</p>
<p>If she has insurance, the choice of is she wants to claim or not is up to her. She is not obliged to make a claim and probably not obliged to tell her insurer about it. Perhaps she has a $20,000 excess. Perhaps she is a person not covered by the policy (too young or otherwise excluded) Perhaps she is (legitimately) concerned that making claims will increase her premium.</p>
<p>Now, her contract may have a clause requiring her to disclose all accidents either ongoing or on renewal. However, the doctrine of privity of contract means that whether she does or not is no one’s business but hers and her insurer.</p>


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Answer 2: <p>There is no legal requirement for either party to report a loss to their insurance company: the only legal obligation is to report an injury or property damage above a certain dollar amount to the police. Especially when a person is demonstrably at fault, making a liability claim against an insurance policy is likely to have negative repercussions (either raising of rates or even cancelling of policy). Since ultimately her obligation is to you, her insurance company only indemnifies her against her loss – if she wants to be indemnified.</p>


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Answer 3: <p>Yes, two possible reasons off the top of my head.</p>
<p>She is possibly afraid that having the insurance company cover it, would be uneconomical.  This could easily be the case if she has a high deductible, the amount she is going to pay you could easily be in less than her deductible, in which case reporting it does nothing but increase her risk of having her rates increased.  Even if it is greater than the deductible, it may not be greater than the deductible and the feared change in her premiums.</p>
<p>Alternatively, her insurance may not be her insurance but something someone else pays for, and she may not, for whatever reason, want them to know about the accident and considers the payment worthwhile in order to keep the accident from them.</p>


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<p>Note that regardless of the reason, you are not doing anything illegal or immoral, someone damaged you and they are quite properly making good on that.  Her dealings with other parties does not involve you and are not your concern as long as you are adequately compensated for your damages.</p>


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Question Title: What was the basis/reasoning for Pennsylvania&#39;s Supreme Court decision to declare the state old-age assistance program unconstitutional in the 1920s?

Question Body: <p>I read <a href="https://www.ssa.gov/policy/docs/ssb/v55n1/v55n1p63.pdf" rel="noreferrer">that</a></p>
<blockquote>
<p>From 1918 to 1927 [Abe] Epstein served as research director of the
Pennyslvania Commission on Old Age Pensions. In that capacity,
he was instrumental in having the State adopt an old-age
assistance law in 1923. The law, however, was declared
unconstitutional by the State Supreme Court.</p>
</blockquote>
<p>What was the basis/reasoning invoked by the Pennsylvania Supreme Court in finding that law unconstitutional?</p>


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Answer 1: <p>The case is <a href="https://casetext.com/case/busser-et-al-v-snyder-et-al" rel="nofollow noreferrer">Busser v. Snyder, 282 Pa. 440, 128 A. 80 (Pa. 1925)</a>.  The law is cited as the &quot;Old Age Assistance Act of May 10, 1923, P. L. 189&quot;, but I could not find the text of the act.  The court case explains that it established a pension of up to one dollar per day for residents over the age of seventy having annual income below $365 and assets below $3000.</p>
<blockquote>
<p>The provision of the [Pennsylvania] Constitution under which the act was declared void [by the lower court] reads as follows: &quot;No appropriations, except for pensions or gratuities for military services, shall be made for charitable, educational or benevolent purposes, to any person or community, nor to any denominational or sectarian institution, corporation or association.&quot;</p>
</blockquote>


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</blockquote>
<p>And the Pennsylvania Supreme Court agreed.  They also distinguished it from other laws that remained constitutional:</p>
<ul>
<li><p>Laws to assist the poor and indigent were still constitutional.  The state argued that the Old Age Assistance Act fell in that category, but the court held that the income and property limits were not a reasonable definition of &quot;poor&quot;, especially since the law would pay pensions to people even if they were able to work.</p>
</li>
<li><p>The state apparently had a retirement pension system for public employees.  This was also held to be different in that it was delayed compensation for employees, in exchange for the service they performed, and thus not charitable or benevolent.</p>
</li>
</ul>


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Question Title: Can one make a Subject Access Request of a telephone Communications Provider?

Question Body: <p>I have received a suspected scam telephone call.  Searching the internet for the number I found that &quot;phone block 247520 is operated by DIDWW Ireland Limited&quot;.  Searching this I came across the <a href="https://www.ofcom.org.uk/__data/assets/pdf_file/0024/214917/scam-nuisance-calls.pdf" rel="nofollow noreferrer">Ofcom response to a very similar incident</a> that makes no mention of the possibility of using the GDPR to require the Communications Provider to identify the source.</p>
<p>It seems to me that the Communications Provider would be a data processor, as they are routing the call to my number, with is personal information.  Would a subject access request set to the GDPR contact email on their <a href="https://www.didww.com/" rel="nofollow noreferrer">web site</a> be valid, in that they would be legally required to sent it to the relevant data controller?</p>


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Answer 1: <p>I don't see this getting you anywhere, an SAR to the telecoms provider will put them in the position of having to give you the PII they have of yours, but I doubt they would be giving you anyone else's. So you might get the what you already know: that you received a call at the date and time. DDIW are just a SIP/VoIP provider, they aren't the ones that called you and they aren't going to be giving you the customer's identity who did.</p>


Tags: gdpr, personal-information


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Question Title: Is it legal to store gold at home in the USA?

Question Body: <p>Is it legal to store physical gold at home in the US? If so, what taxes may be applied on the gold held at home, in form of both jewelry or raw gold?</p>


Answer 1: <p>Private ownership of gold has been legal in the US since the passage of <a href="https://www.congress.gov/93/statute/STATUTE-88/STATUTE-88-Pg445.pdf" rel="nofollow noreferrer">Pub. L 93-373</a>, which repealed <a href="https://en.wikipedia.org/wiki/Executive_Order_6102" rel="nofollow noreferrer">the prohibition of private ownership of gold</a>. You may therefore store it wherever you want. There is no tax on gold, kept as gold, though if you sell it there may be capital gains tax owed on the profits (just as there would be for many other things).</p>


Tags: tax-law, investment, prohibition


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Question Title: Can I be subjected to physical punishment by the police in the US as long as it is outside criminal proceeding?


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Question Body: <p>In <a href="https://www.oyez.org/cases/1976/75-6527" rel="nofollow noreferrer">Ingraham v. Wright</a>, the US Federal Supreme Court ruled that it had &quot;limited the application of the Eighth Amendment’s <em>cruel and unusual</em> language to <strong>criminal</strong> punishment&quot;.</p>
<p>Can I be subjected to a &quot;cruel and unusual&quot; punishment by the police, as long as it is done outside of a criminal proceeding?</p>
<p>For example, suppose I jaywalk. A police officer catches me.</p>
<ol>
<li><p>Suppose the punishment is a result of a bargain. Suppose that me and the police officer agrees that the police officer will give me a slap in the hand, and in return the police officer will not press charges against me. Can we make out such a bargain?</p>
</li>


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</li>
<li><p>If yes to (1), suppose that after that I change my mind and sue the officer on Eight Amendment grounds. Can the officer defend himself/herself by saying that the punishment doesn't violate the Eight Amendment because this amendment only applies to &quot;<em>criminal</em> punishment&quot; (<em>Ingraham v. Wright</em>) and this was not a &quot;<em>criminal</em> punishment&quot;, because it was outside of a criminal proceeding? After all, charges were never pressed and so I was not convicted of any crime</p>
</li>
<li><p>How does the answer to number (1) change if the punishment is imposed against my will?</p>
</li>
</ol>


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Answer 1: <p>No. Police are not permitted to impose any punishment whatsoever. Their role in the American justice system is to prevent and investigate criminal offenses.</p>
<p>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.</p>


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Answer 2: <p>If the government are not punishing you as part of a criminal offense, then under what guise are they subjecting you to physical punishment?  (Separating the &quot;police&quot; out of this, as it's really &quot;the government&quot; more broadly here.)</p>
<p>If they subject you to physical punishment <em>not</em> part of a criminal proceeding, and in a venue not otherwise covered by due process, then they are violating your civil rights - see the 14th Amendment:</p>
<blockquote>
<p>nor shall any State deprive any person of life, liberty, or property, without due process of law</p>
</blockquote>
<p>In the cited case, this &quot;due process&quot; was <em>covered in Florida law</em> by explicitly prohibiting excessive use of force, and thus the victims could and should apply for protection under those statutes (and more generally, under the standards of tort law).  (I assume they did and did not receive a satisfactory outcome, but can't find the case trivially).</p>
<hr />


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<hr />
<p>I will note that I wonder if this case would have a different outcome now; note (from the Oyez summary):</p>
<blockquote>
<p>While acknowledging the general abandonment of corporal punishment as a means of punishing criminals, Justice Powell looked to the common law history of similar punishment in schools and discerned no trend towards its elimination. Rather, common law suggested that teachers could legally impose reasonable, non-excessive force on their students.</p>
</blockquote>


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</blockquote>
<p>That's certainly no longer the case, and so (politics aside) it's possible this specifically would have a different outcome.  Schools are somewhat of a special case, acting <em>in loco parentis</em>, which was generally the rationale behind the use of corporal punishment - parents also during that period of time typically used corporal punishment; even now, <a href="https://en.wikipedia.org/wiki/Corporal_punishment_of_minors_in_the_United_States#cite_note-Phoenix-7" rel="nofollow noreferrer">the <em>majority</em> of (U.S.) General Social Survey respondents believe spanking is sometimes appropriate</a>, though most likely the majority don't use it as a matter of course, and the majority of states explicitly prohibit it in schools.  So perhaps the &quot;common law&quot; rationale might not apply; but either way, it's likely a special case that schools are permitted to act in this way, and would not apply more broadly.</p>


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Answer 3: <p>The 8th Amendment is much stronger in prohibiting types of punishment than in prohibiting disproportionate punishments. Corporal punishment such as a slap on the hand, is <em>per se</em> prohibited under the 8th Amendment as punishment for a criminal offense, whether or not the consent of the person upon whom it is imposed is obtained (subject to narrow exceptions like the death penalty not applicable here).</p>
<p>Also, a non-judicial bargain to accept a corporal punishment, or any punishment, would usually constitute a punishment imposed in violation of various 5th and 6th and 14th Amendment rights and would provide a basis for a civil rights lawsuit under § 1983 for violation of a clearly established constitutional right against the officer who did so.</p>


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<p>It would also probably constitute a simple assault by the officer because no exception to the simple assault statute that prohibits a person from slapping another person would apply because no statute would authorize the officer to enter into or accept such a bargain.</p>
<p>It is a criminal matter because it is punishment for violation of a criminal or quasi-criminal statute prohibiting jay walking. An officer attempting to raise this defense would surely lose.</p>
<p>The officer's better defense, although not a tenable one in a world where the true facts and intent are known to be as set forth in the question, would be that the officer engaged in a reasonable use of force to apprehend the defendant and then exercised in unilateral discretion to not cite the person slapped.</p>


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<p>Another defense that might hold up under these facts would be that the &quot;punishment&quot; was so <em>de minimis</em> that it does not justify any legal action against him and does not really amount to a &quot;punishment&quot; any more than a verbal warning, which is not considered to be a punishment, would.</p>


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Answer 4: <p>In the first place, the police cannot legally impose any punishment: that is the prerogative of the judicial branch and the people.  They can decline to arrest, but any physical compensation could be considered bribery which would make both of you guilty of a much more serious crime than jaywalking.</p>
<p>So, to answer your first question, you cannot enter into such an agreement legally because the officer would be guilty of accepting a bribe and you would be guilty of paying a bribe.</p>
<p>Secondly, if you did enter into such an illegal agreement, in order to have 8th Amendment grounds, the officer would have to be acting per policy not simply as an individual actor. Since as an individual actor the officer doesn’t have any right to inflict punishment, any such “punishment”, would have to be considered either (a) bribery, (b) consensual behavior between adults, (c) assault.</p>


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<p>How it got treated would depend upon the exact circumstances, but it wouldn’t be considered a violation of your rights under the 8th Amendment.</p>
<p>If it was official policy, then it would more likely fall afoul of the 5th.</p>


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Question Title: Is it a crime to take out a loan with no intention to repay?

Question Body: <p><a href="https://money.stackexchange.com/questions/28530/defaulting-on-credit-cards-before-leaving-the-country?rq=1">This question on Money.SE</a> concerned a person who had taken out a number of loans.  He didn't intend to repay these loans in full, planning instead to default and leave the country.  Several posters on Money.SE claimed that such actions would constitute fraud or theft or some similar crime.  Would they?</p>

<p>For the purposes of this question, let us assume:</p>


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<p>For the purposes of this question, let us assume:</p>

<ul>
<li><p>The borrower received a single unsecured loan in the amount of $10,000.</p></li>
<li><p>The borrower did not misrepresent any facts (such as income, assets, etc) on his loan application.</p></li>
<li><p>At the time of applying for the loan, the borrower had already made up his mind that he would not fully repay the loan; and there is evidence to establish this.  (Perhaps he wrote a diary entry to that effect, or bragged about it to someone.)</p></li>
<li><p>The borrower has sufficient assets and/or income that he could make the payments without undue burden, if he wanted to.</p></li>
<li><p>The jurisdiction is California, USA (though if other jurisdictions are different, that would also be interesting).</p></li>
</ul>


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<p>Followup: Suppose instead that at the time of applying for and receiving the loan, the borrower did sincerely intend to make his best efforts to repay it in full, but at some later time he changed his mind and decided that, although he had sufficient available funds to make the payments, he wasn't going to do so anymore; and did in fact stop paying.  Would that constitute a crime of any kind?</p>

<p>Obviously the borrower could be sued in civil court and have his assets seized, etc, - but the question here is whether he could be subject to <em>criminal</em> sanctions.</p>


Answer 1: <p>If, at the time of application for the loan, the borrower has no intention of repaying, it appears that it is a crime.  From <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&amp;sectionNum=532.">California Penal Code section 532</a>:</p>


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<blockquote>
  <p>(a) Every person who knowingly and designedly, by any false or fraudulent representation or pretense, defrauds any other person of money, labor, or property, whether real or personal, or who causes or procures others to report falsely of his or her wealth or mercantile character, and by thus imposing upon any person obtains credit, and thereby fraudulently gets possession of money or property, or obtains the labor or service of another, is punishable in the same manner and to the same extent as for larceny of the money or property so obtained.</p>
</blockquote>

<p>The false representation in this case is that you falsely represent your intention to repay the loan.  </p>


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<p>The false representation in this case is that you falsely represent your intention to repay the loan.  </p>

<p>Variations of your scenario invoke other sections of the law.  If the false representation is instead about the <em>ability</em> to pay, then <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&amp;sectionNum=532a.">section 532a</a> applies.  If it's with regards to a <em>secured</em> loan, it's <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&amp;sectionNum=532f.">section 532f</a></p>

<p>Deciding not to repay the loan after the fact appears to be a purely civil matter: nothing in <a href="http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PEN&amp;division=&amp;title=13.&amp;part=1.&amp;chapter=8.&amp;article=">Chapter 8 (false personation and cheats)</a> looks like it applies.</p>


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Answer 2: <p>The crime of fraud or theft will probably have a specific definition in the California Criminal Code.</p>
<p>At common law, a person steals if</p>
<ol>
<li>without the consent of the owner, that person</li>
<li>fraudulently and</li>
<li>without a claim of right made in good faith</li>
<li>takes and caries away</li>
<li>anything capable of being stolen belonging to another</li>
<li>with the intent at the time of taking to permanently deprive the owner of it.</li>
</ol>
<p>The person you described:</p>
<ol>
<li>Does not have the owner's consent for his proposed actions (i.e. taking the money and not repaying it)</li>
<li>Has obtained the money by deception; he has not revealed his intention to not repay (i.e. fraudulently)</li>
<li>Does not have a right to the money, nor does he believe, in good faith, that he does;</li>
<li>Has taken it away; in cash or by putting it into his own bank account</li>
<li>Money; which is something capable of being stolen</li>


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<li>Has taken it away; in cash or by putting it into his own bank account</li>
<li>Money; which is something capable of being stolen</li>
<li>With the intention of permanently depriving the owner of it.</li>
</ol>
<p>This is common law theft (and probably meets whatever statute definition is applied) and is a crime punishable by the state.</p>


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Question Title: Is lying in an application for a job at a private company, signed under penalty of perjury, prosecutable as perjury?

Question Body: <p>A person applies for a job at the XYZ company. The XYZ company is a private company. As part of applying he fills out an application and signs it under penalty of perjury. The application has several lies in it. Can he be criminal prosecuted for perjury? If his signature had been notarized after he signed it, would that effect the answer?</p>


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Answer 1: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>


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<p>A &quot;penalty of perjury&quot; statement includes not just the warning about penalty of perjury, the person signing avows that the statements are true to the best of their knowledge. If you lie on such a statement, and if the &quot;penalty of perjury&quot; statement is legally allowed (typically, mandated), then the person can be prosecuted. However, XYZ cannot arbitrarily inject the risk of perjury, that requires some legal authorization. An example would be if XYZ is employing the person under a Defense Department contract that requires a sworn statement. The <a href="https://www.law.cornell.edu/uscode/text/18/1621" rel="noreferrer">federal perjury statute</a> characterises this as being when &quot;a law of the United States authorizes an oath to be administered&quot;. The only effect of notarization is that it decreases the probability that the person could effectively argue &quot;I never even signed this statement, that's a forgery&quot;.</p>


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Answer 2: <p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<p>It won't be perjury, but (with or without the &quot;under penalty of perjury&quot; phrase) it will be fraud.</p>


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Answer 3: <h2>No</h2>
<p><a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" aria-label="show questions tagged &#39;australia&#39;" rel="tag" aria-labelledby="tag-australia-tooltip-container">australia</a></p>
<p><a href="http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s327.html#:%7E:text=(1)%20Any%20person%20who%20in,to%20imprisonment%20for%2010%20years." rel="noreferrer">Perjury</a> is making a false statement in connection with a judicial proceeding.</p>
<h2>You could be asked to sign a <a href="https://www.ag.gov.au/legal-system/statutory-declarations/you-complete-statutory-declaration#:%7E:text=If%20you%20make%20a%20false%20statement%20in%20a%20statutory%20declaration,for%20up%20to%204%20years." rel="noreferrer">Statutory Declaration</a></h2>
<p>Anyone can ask you to sign one of those although it will usually be a state one rather than the Federal one linked to.</p>


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<p>Anyone can ask you to sign one of those although it will usually be a state one rather than the Federal one linked to.</p>
<p>Lying on one of those is a criminal offence that carries serious gaol time.</p>
<h2>Of course, lying on a job application is technically <a href="http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s192e.html" rel="noreferrer">fraud</a></h2>
<p>Whether you get prosecuted depends on how big the lie is. Run of the mill padding is unlikely to get you in trouble. Saying you’re a surgeon when you aren’t likely will (it has happened).</p>


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Answer 4: <p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<p>In Engilsh law, the term 'Perjury' holds a very specific meaning, to wit lying in a legal proceeding where you are under oath to tell the truth.</p>
<blockquote>
<p><strong>Perjury Act (1911)</strong></p>
<p>If any person lawfully sworn as a witness or as an interpreter <em><strong>in a
judicial proceeding</strong></em> wilfully makes a statement material in that
proceeding, which he knows to be false or does not believe to be true,
he shall be guilty of perjury</p>
<p>...</p>
<p>The expression “judicial proceeding” includes a proceeding before any court, tribunal, or person having by law power to hear, receive, and examine evidence on oath.</p>
</blockquote>


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<p>...</p>
<p>The expression “judicial proceeding” includes a proceeding before any court, tribunal, or person having by law power to hear, receive, and examine evidence on oath.</p>
</blockquote>
<p>So no, your actions do not meet the legal requirement for perjury unless your individual has been lawfully sworn as a witness.</p>


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Question Title: Neighbor trees&#39; shade impact solar panel production?

Question Body: <p>Is there any case law or precedent or? regarding a neighbor's trees whose shadow covers another's roof for a good part of the day and thus block solar panels from working as efficiently as they might. The trees were there first if that makes a difference. </p>


Answer 1: <p>It isn't precisely clear which jurisdiction you are located in (recall that this website handles matters from everywhere in the world).</p>

<p>But, generally speaking, in the United States, you have no right to limit someone's existing tree on their property merely because it casts a shadow on your solar panels. The installer should have known better.</p>


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<p>A minority of U.S. states, including California, consider new construction that blocks the view of existing structures a form of "nuisance" that can be abated if it unreasonably interferes with the enjoyment of the existing property. But, that protects existing structures, rather than new ones.</p>

<p>In Japan, there are building code requirements designed to insure that key portions of every home get natural sunlight daily. Again, this only applies to the construction of new buildings.</p>

<p>I know of no law that gives someone who newly installs a solar panel a right to remove or trim a neighbor's tree simply by virtue of doing so. And, without knowing whose law is involved it would be impossible to determine with any reliability. </p>


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<p>The property with the solar panel could seek to buy the right to an unobstructed view from the property with the tree, in what would probably be called a "view easement", but that would only happen if the terms were such that both consented and it was written up in a legal document to that effect.</p>


Tags: property, trees


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Question Title: Is there any branch of the law, where a foetus is given legal personality separate to that of the mother?


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Question Body: <p>If the rights or wrongs of abortion are a judicial matter rather than political, central to it would seem to be the question of what defines a &quot;person&quot;.</p>
<p>Critical to the idea that abortion should be illegal seems to be that a foetus is defined as a person, and is entitled to all the rights etc as such.</p>
<p>Civil law (including commercial law, in the United States and all English-speaking jurisdictions) has its own definitions of <em>persona</em> which is in some ways more extensive and in others less so than in criminal law. For example legally constituted companies, or governmental bodies etc have legal personality and can sue or be sued.</p>
<p>But is there ANY branch of the law, in any country of which subscribers may be aware - where a foetus is given legal personality separate to that of the mother?</p>


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<p>But is there ANY branch of the law, in any country of which subscribers may be aware - where a foetus is given legal personality separate to that of the mother?</p>
<p>For example, I could leave money in my will to my 5 year-old granddaughter, and, should she not survive me, - to &quot;any of her ( currently unborn) issue&quot;. That would not mean that the unborn issue at the time of writing the will had legal personality - but they would acquire it at birth. But is there any country where they might acquire it at e.g. conception? The question is not as irrelevant as it might sound, since if a foetus, for example, inherited money, but did not survive birth - would the money in question become part of a separate estate in their name, and dealt with appropriately, under laws of intestacy. Does anyone know of any country where that, for example, might be the case?</p>


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Answer 1: <h2>The law isn’t just concerned with people</h2>
<p>Animal welfare laws, for example, impose obligations on people to do or refrain from doing things for the benefit of animals who are clearly not people.</p>
<p>Pro- or anti-abortion law could be made with or without recognising a foetus as a person.</p>
<h2><a href="https://www.murdoch.edu.au/news/articles/when-unborn-children-are-killed-how-does-the-law-deal-with-culpability" rel="nofollow noreferrer">Example</a> of laws that give legal status to a foetus</h2>
<p>In <a href="/questions/tagged/queensland" class="post-tag" title="show questions tagged &#39;queensland&#39;" rel="tag">queensland</a> you can murder a foetus.</p>


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Answer 2: <p><a href="http://www.cidh.org/Basicos/English/Basic3.American%20Convention.htm" rel="nofollow noreferrer">The American Convention on Human Rights</a> Art. 4(1) says that</p>
<blockquote>
<p>Every person has the right to have his life respected. This right
shall be protected by law and, in general, from the moment of
conception. No one shall be arbitrarily deprived of his life.</p>
</blockquote>
<p>States also have distinct &quot;fetal murder&quot; statutes such as Washington's <a href="https://app.leg.wa.gov/rcw/default.aspx?cite=9A.32.060" rel="nofollow noreferrer">RCW 9A.32.060</a> which prohibits</p>
<blockquote>
<p>intentionally and unlawfully kill[ing] an unborn quick child by inflicting
any injury upon the mother of such child.</p>
</blockquote>


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<blockquote>
<p>intentionally and unlawfully kill[ing] an unborn quick child by inflicting
any injury upon the mother of such child.</p>
</blockquote>
<p>While the law does not declare a fetus to be a person, it treats a fetus as more person-like than for example a dog (dogslaughter is a civil matter). Under <a href="https://statutes.capitol.texas.gov/Docs/PE/htm/PE.19.htm" rel="nofollow noreferrer">Texas Penal Code 19.03(8)</a>, capital murder includes murdering an individual under 10 years of age, where &quot;individual&quot; is defined in <a href="https://statutes.capitol.texas.gov/Docs/PE/htm/PE.1.htm" rel="nofollow noreferrer">Penal Code §1.07(26)</a> as &quot;a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth&quot;. The word &quot;person&quot; is not used, instead &quot;individual&quot; is substituted (and also includes people who are already born).</p>


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<p>Art. 6 para 2 of the <a href="https://lovdata.no/dokument/NLE/lov/1814-05-17?q=grunnloven" rel="nofollow noreferrer">Norwegian Constitution</a> (pertaining to royal succession) states that</p>
<blockquote>
<p>An unborn child shall also be included among those entitled to the
succession and shall immediately take her or his proper place in the
line of succession as soon as she or he is born into the world</p>
</blockquote>
<p>however this proviso does not say &quot;person&quot; (which is the Norwegian word for 'person', but I can't swear that in legal contexts the word is used the same as it is in).</p>


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</blockquote>
<p>however this proviso does not say &quot;person&quot; (which is the Norwegian word for 'person', but I can't swear that in legal contexts the word is used the same as it is in).</p>
<p><a href="https://en.wikipedia.org/wiki/Fetal_rights" rel="nofollow noreferrer">This page</a> gathers together pertinent instances of legal person-like treatment of fetuses. The difficulty lies in concluding that a particular advantageous position of a fetus is because of their &quot;person&quot; status. There are a number of conjectured future developments of the idea of fetal personhood discussed <a href="https://time.com/6191886/fetal-personhood-laws-roe-abortion/" rel="nofollow noreferrer">here</a> which also refers to has treatments of a fetus as a person in light of child-endangerment laws.</p>


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Question Title: Does Romeo &amp; Juliet (1968) constitue Child Porn?

Question Body: <p>In Romeo and Juliet (1968), the actress playing Juliet (age 15 at the time), had her bare chest exposed for a bit after sleeping with Romeo. Romeo's actor (who was also underage) had his naked bottom exposed in the same scene. Basically, two underage actors were shown nude after a (presumed) sexual encounter.</p>
<p>Would this make the film constitute child porn, and would possession of it be cause for arrest? It is a fairly celebrated film that's still openly on sale, so I'd imagine it isn't regarded as CP. I'm just not sure what the relevant standard is for why it wouldn't (or would) be considered CP.</p>


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Answer 1: <p>From the <a href="https://www.justice.gov/criminal-ceos/child-pornography" rel="nofollow noreferrer">justice.gov site</a></p>
<blockquote>
<p>Federal law defines child pornography as any visual depiction of
sexually explicit conduct involving a minor (persons less than 18
years old).</p>
</blockquote>
<p>So no, the mere showing of a naked chest or bare bottom does not constitute child pornography.</p>


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Answer 2: <p>Child pornography laws vary between the federal and state government, and then from state to state, as well. At the federal level, the 1968 version would not constitute child pornography.</p>
<p>Under <a href="https://www.law.cornell.edu/uscode/text/18/2256" rel="nofollow noreferrer">18 USC 2256</a>, child pornography only includes depictions of minors (under the age of 18) engaged in actual or simulated &quot;sexually explicit conduct,&quot; which is defined to include only:</p>
<blockquote>
<p>(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;</p>
<p>(ii) bestiality;</p>
<p>(iii) masturbation;</p>
<p>(iv) sadistic or masochistic abuse; or</p>
<p>(v) lascivious exhibition of the anus, genitals, or pubic area of any person;</p>
</blockquote>
<p>I don't see a good argument that the film meets any of those criteria.</p>


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<p>(v) lascivious exhibition of the anus, genitals, or pubic area of any person;</p>
</blockquote>
<p>I don't see a good argument that the film meets any of those criteria.</p>
<p>I'd call it unlikely that the film meets the criteria for child pornography under any state law. I don't believe I've ever seen such a law that both (1) goes beyond prohibiting depictions of sexual conduct to mere depictions of nudity; and (2) contains no exceptions for material with serious literary, artistic, political, or scientific value in hopes of avoiding First Amendment problems.</p>
<p>This is not to say that such a law does not exist or that such a law would be unconstitutional under the First Amendment.</p>


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<p>In <a href="https://casetext.com/case/new-york-v-ferber#p758" rel="nofollow noreferrer"><em>New York v. Ferber</em>, 458 U.S. 747 (1982)</a>, a defendant who sold videos depicting young boys masturbating was convicted under New York's child-pornography laws, which imposed felony penalties on anyone who &quot;produces, directs or promotes any performance which includes sexual conduct by a child less than sixteen years of age.&quot; New York's appellate courts overturned his conviction, holding that even if Ferber's videos were not protected by the First Amendment, the entire child pornography law was unconstitutional because it would not protect materials that &quot;deal with adolescent sex in a realistic but nonobscene manner.&quot; But the U.S. Supreme Court reversed and reinstated the conviction, rejecting Ferber's argument that the First Amendment required such accommodations:</p>
<blockquote>


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<blockquote>
<p>While some States may find that this approach properly accommodates its interests, it does not follow that the First Amendment prohibits a State from going further. [This] standard, like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question ... of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be &quot;patently offensive&quot; in order to have required the sexual exploitation of a child for its production.</p>
</blockquote>


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</blockquote>
<p>One might therefore write a law broadly enough to include the 1968 version of Romeo and Juliet within the definition of child pornography. For instance: &quot;It is illegal to create, possess, or distribute child pornography. &quot;Child pornography&quot; means any visual depiction of (1) a minor engaged in sexual conduct; or (b) a minor's breasts, genitals, or buttocks.&quot;</p>
<p>There would still be plenty of room to argue about whether it was constitutional, primarily because the state's interest in protecting minors from sexual exploitation is less obviously implicated by a film depicting minors kissing or walking around naked than by a film depicting them engaged in actual sexual conduct.</p>


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<p>But if that law did survive a First Amendment challenge, Romeo and Juliet would likely become illegal. Virtually all of the objections raised in the various comments throughout this post would be legally irrelevant, as it would not matter where the film was made, when it was made, whether the children were above the age of consent, whether the actors lied about their ages, that the actors were only partially nude, that the film doesn't meet the standard for obscenity, that the film has serious artistic value, or that the actors suffered no actual injury from participating.</p>
<p>The only things that would matter would (1) whether the film depicts a minor's breasts, genitals, buttocks, or sexual activity; and (2) whether you have created, possessed, or distributed that film.</p>


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Answer 3: <blockquote>
<p>Would this make the film constitute as child porn, and would possession of it be cause for arrest?</p>
</blockquote>
<p>Since the film was made in Italy, Italian law would apply.</p>
<p>The Italian Penal Code, for Articles 528 and 529 contains the word <strong>Obscene</strong> in conection of shows/activities.</p>
<p>It is not clear which Articles covers <strong>softcore porn</strong> in Italy.</p>
<p>Minors cannot give their consent on their own, so it would be a matter of the parents to deside.</p>
<blockquote>
<p>In Romeo and Juliet (1968), the actress playing Juliet (age 16 at the time iirc), had her bare chest exposed for a bit after sleeping with Romeo. Romeo's actor (who was also underage) had his naked bottom exposed in the same scene.</p>
</blockquote>
<p>It is unlikely that a judge would come to the conclusion that the scene was <strong>Obscene</strong>, if anything <strong>softcore porn</strong> would be more likely.</p>


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</blockquote>
<p>It is unlikely that a judge would come to the conclusion that the scene was <strong>Obscene</strong>, if anything <strong>softcore porn</strong> would be more likely.</p>
<p>Since, it is claimed that the producers had the parents written consent, it is unlikely that anything would come about in this case if it were held in Italy.</p>
<hr />
<blockquote>
<p><a href="https://en.wikipedia.org/wiki/Pornography_in_Italy#Legal_status" rel="nofollow noreferrer">Pornography in Italy Legal status - Wikipedia</a><br />
Articles 528, 529, and 725 of the Italian Penal Code, which respectively sanction as felonies &quot;<strong>Obscene</strong> publications and shows&quot;, &quot;<strong>Obscene</strong> activities and objects&quot;, and &quot;Commerce of publications, images or other objects <strong>offending public decency</strong>&quot;.<br />


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Minors cannot give legal consent to appear in pornographic productions of any kind, even though the age of consent in Italy varies from 14 to 16 years.</p>
</blockquote>
<blockquote>
<p><a href="https://www.theguardian.com/stage/2023/jan/06/franco-zeffirelli-son-criticises-romeo-juliet-actors-olivia-hussey-leonard-whiting-nudity-lawsuit" rel="nofollow noreferrer">2023-01-06: Franco Zeffirelli’s son criticises Romeo and Juliet actors for nudity lawsuit | Franco Zeffirelli | The Guardian</a><br />
Zeffirelli [son of Franco Zeffirelli] pointed out that Hussey went on to work in Franco Zeffirelli’s miniseries Jesus of Nazareth, and that Whiting attended his funeral.<br />
Zeffirelli said he believed the film’s two producers, John Brabourne and Anthony Havelock-Allan, <strong>had consent forms from the actors’ parents</strong>.</p>
</blockquote>
<hr />
<p><strong>UPDATE</strong>:</p>
<blockquote>


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</blockquote>
<hr />
<p><strong>UPDATE</strong>:</p>
<blockquote>
<p><a href="https://www.bbc.co.uk/news/entertainment-arts-65725714" rel="nofollow noreferrer">2023-05-26: BBC News - Actors lose Romeo &amp; Juliet nude scene lawsuit</a><br />
<strong>A Los Angeles judge says she will dismiss a child sex abuse lawsuit brought by the stars of the 1968 film Romeo and Juliet.</strong></p>
<p>Olivia Hussey and Leonard Whiting alleged the film's director coerced them into filming nude while underage.</p>
<p>A Superior Court judge found the scene <strong>wasn't &quot;sufficiently sexually suggestive&quot;</strong> to overrule First Amendment protections.</p>
<p>Hussey was 15 at the time of filming and Whiting 16.</p>


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<p>Hussey was 15 at the time of filming and Whiting 16.</p>
<p>In a <strong>tentative ruling</strong> issued on Thursday, Los Angeles Superior Court Judge Alison Mackenzie said the plaintiffs &quot;cherry picked&quot; which statutes applied to their case. She also said <strong>the lawsuit did not meet the requirements for suspending the statute of limitations</strong> for child sexual abuse.<br />
...</p>
</blockquote>
<p>I see this as a confirmation of my opinion.</p>


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Question Title: Is it legal to file two insurance claims for the same loss?

Question Body: <p>Say my car started a fire and the fire caused damage to my house, resulting in a loss of $1000. Is it legal/ethical for me to file a claim with my car insurance while at the same time filing a claim with my house insurance?</p>
<ul>
<li>If yes, will I get $1000 (possibly minus any deductibles) from each insurance policy?</li>
<li>If no, which insurance company should I file a claim from?</li>
</ul>


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Answer 1: <p>Assuming that both policies actually cover the loss, this is called “double insurance.” Generally speaking, you can claim against both insurers, but you can only recover the loss once. See my answer to another question about <a href="https://law.stackexchange.com/a/26335/5045">double recovery</a> for more about the general principles that apply when a plaintiff attempts to recover the same loss from multiple defendants.</p>
<p>In the specific context of insurance, there will normally be terms in the insurance contract as well as local statutes which require the claimant to notify the insurers of one another’s existence, and determine the extent to which the insurer who paid can recover <a href="https://en.wikipedia.org/wiki/Contribution_claim_(legal)" rel="noreferrer">contribution</a> from the insurer who didn’t. This issue is particularly complex in the United States where insurance is separately regulated in each state.</p>


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<p>Some of the complexities that arise are reviewed in Russ, <a href="https://repository.uclawsf.edu/cgi/viewcontent.cgi?article=1678&amp;context=hastings_law_journal" rel="noreferrer">The double insurance problem – a proposal</a> (1961) 13(2) <em>Hastings Law Journal</em> 183, although this is now rather outdated. In the context of health insurance, the adjustment of liability for doubly-insured risks is referred to as <a href="https://content.naic.org/sites/default/files/model-law-120.pdf" rel="noreferrer">coordination of benefits</a> and may be regulated by model laws promulgated by the National Association of Insurance Commissions. I am not aware of any model law or legal principles applicable throughout the United States that would determine the outcome in the case you describe of home and car insurance.</p>


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Answer 2: <h1>You don't get to profit off an insurance claim.</h1>
<p>The aim of insurance is merely to return you to a previous financial position after some sort of disaster or unseen circumstance.</p>
<p>Generally, the only insurance you can have as much of as you like is life insurance. In your case if you double insure your house there will be assessment of the damages and each insurer will pay half.</p>
<p>If you take the full amount of damages from more than one insurer then you are committing plain old insurance fraud. Depending on the amount of money involved, you can get into a lot of trouble for doing that.</p>
<p>If you pay for 100K worth of coverage on the same event happening to the same thing, from two insurers you will not have 200K coverage: you will have 100K coverage with payouts split by two insurers. That makes the second policy redundant.</p>


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<p>It is also worth noting that some insurance is illegal to be doubled (in my jurisdiction at least). Medical insurance (Medical Aid) is illegal to have double. Although there are certain top up policies you can have for serious illness like cancer, these are just additional cover and not a full medical aid.</p>


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Answer 3: <p>I have been through a house fire and went through a few intricacies with the 2 insurance companies involved.  A few issues are relevant here.</p>
<p>A booster seat for the car was stored in the attic.  The car was not damaged but the Insurance company insisted that I file a separate claim for the car as the seat belonged to the car.  This way they could claim two lots of excesses.  I refused, and they eventually settled.</p>
<p>As mentioned by others, generally</p>
<ol>
<li>Only one insurance policy applies if you have two policies with the same company.</li>
<li>You can't benefit from the insurance claim</li>
</ol>
<p>If the total damage is $1000 and you claim under two policies, that would be $500 each.  If your excess is $500 each, you won't get a cent.</p>


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</ol>
<p>If the total damage is $1000 and you claim under two policies, that would be $500 each.  If your excess is $500 each, you won't get a cent.</p>
<p>(1) I had an interesting scenario.  The house policy and the contents policy each paid 3 months of rent while the house was getting rebuilt.  My argument with them was that they knew it would take a year to rebuild, so they should have offered me options.  So they re-interpreted their policy (supposedly &quot;just for me&quot;).  Once the first policy had paid out for 3 months, it no longer applied, so then they paid me for 3 months from the other policy.</p>
<p>(2) I had 2000 books, many of which were damaged. I could have purchased newer ones on Amazon.  But then I would have benefited.  Instead, they made me buy a similar, second-hand one for each damaged book.  I had to track each book down.  And in each case, it was more expensive than buying newer ones.  <strong>But I did not benefit</strong></p>


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Question Title: What standard of evidence is used for a subpoena of documents in a criminal case? How does it compare to probable cause?

Question Body: <p>A Website I use received subpoenas from the US Department of Justice for data related to certain specified usernames. What standard of evidence must that subpoena have met and how does it compare to the probable cause required for a search warrant?</p>


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Answer 1: <p>Probable cause is not required to issue a subpoena.</p>
<p>But, a recipient of a subpoena (or a party to a case in which a subpoena is issued, or a person whose records a subpoenaed), may file a motion to quash the subpoena in the court that issued it, before the information is disclosed pursuant to the subpoena.</p>
<p>A claim that the subpoenaed material is privileged is always a legitimate reason to quash a subpoena. A subpoena can also be quashed on the grounds that the materials sought are unrelated to the matter for which it is issued, or that it is unduly burdensome in a manner unrelated to a legitimate interest in obtaining the information sought (this list of objections is not exhaustive).</p>


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<p>You can see an example of a motion to quash a subpoena duces tecum from a federal grand jury, together with the subpoena itself attached to the motion at the end of the linked file as an exhibit, at <a href="https://int.nyt.com/data/documenttools/twitter-motion-to-quash-subpoena-nunes/b78134fbcd4badd4/full.pdf" rel="nofollow noreferrer">this link</a>. The federal court rule governing subpoenas in federal criminal cases is <a href="https://www.law.cornell.edu/rules/frcrmp/rule_17" rel="nofollow noreferrer">Federal Rule of Criminal Procedure 17</a>. In federal court civil cases, <a href="https://www.law.cornell.edu/rules/frcp/rule_45" rel="nofollow noreferrer">Federal Rule of Civil Procedure 45</a> applies.</p>


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<p>Short of actually quashing the subpoena, the court issuing it could also modify the obligation by imposing a protective order on the materials to be disclosed (e.g. trade secrets or private financial information). This would prevent the materials disclosed from being shared with people other than the recipient.</p>
<p>Incidentally, the penalty for failing to respond to a subpoena is for the person to whom it is directed to hold the person in contempt of court, punishable by incarceration or a fine (often a fixed amount per day). Often, if testimony is part of what is required, a warrant for the arrest of the person who fails to appear is summarily issued by the court.</p>
<p><strong>Footnote regarding terminology</strong></p>


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<p><strong>Footnote regarding terminology</strong></p>
<p>Strictly speaking, the word &quot;subpoena&quot; unmodified, refers to a subpoena directing the person to whom it is addressed to testify under oath at a certain place and time, sometimes a grand jury, sometimes a trial in a court, sometimes a deposition, sometimes an arbitration, and sometimes an interview with a government official.</p>
<p>When a subpoena is asking for the turnover of records or things or data it is strictly speaking called a &quot;subpoena duces tecum&quot; (from the Latin <em>duces tecum</em>, meaning &quot;you shall bring with you&quot;).</p>
<p>Historically, in response to the subpoena duces tecum, the custodian of the records would appear personally at a deposition or grand jury proceeding or trial with the records or things and would testify under oath briefly at that time to authenticate them.</p>


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<p>These days, the federal rules of evidence and most state rules of evidence provide that the custodian of records can <a href="https://www.law.cornell.edu/rules/fre/rule_902" rel="nofollow noreferrer">sign an affidavit, or a declaration</a> (i.e. a statement made under penalty of perjury which is not notarized), regarding the authenticity of the records (and their status as &quot;business records&quot; or &quot;public records&quot; where appropriate). Then, this affidavit or declaration is delivered along with the records by a courier or mail, in lieu of actually providing live testimony regarding the authenticity and business records status of the records.</p>


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<p>Delivery of documents by courier or mail or electronically, accompanied by an affidavit or declaration is what is usually done these days, except in exceptional cases where the authenticity and/or business records status of the records is genuinely in dispute and complicated in some way. For example, in person testimony of the custodian of records might be required in a case where there are allegations of forgery of documents or that digital files were hacked.</p>


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Question Title: Can you double press charges on a person?

Question Body: <p>Okay, let's just use Person A and B for the question.</p>
<p>Person A gets harassed by Person B. Then Person B takes all Person A's belongings and money, and he dumps it. Then Person A goes crazy red angry, then starts attacking Person B by punching, kicking, hair pulling, and then making Person B fall. Person B responds, but repeating it <em>harder,</em> until the point that it makes Person A call the police. Person A was so mad he wants to press charges for assault, 2 times. So, can you press charges two  times (double press charges)?</p>


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Answer 1: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<p>See <a href="https://laws-lois.justice.gc.ca/eng/acts/c-46/FullText.html" rel="nofollow noreferrer"><em>Criminal Code</em></a>, s. 581(1):</p>
<blockquote>
<p>Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused or defendant committed an offence therein specified.</p>
</blockquote>
<p>If there were two assaults, not as part of a continuing transaction, these should be indicted as two separate counts.</p>


Tags: criminal-law


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Question Title: What provisions existed in UK law for handling a tied Brexit vote?

Question Body: <p>The UK left the European Union because of a public referendum where <a href="https://en.wikipedia.org/wiki/Causes_of_the_vote_in_favour_of_Brexit#:%7E:text=Factors%20included%20sovereignty%2C%20immigration%2C%20the,of%20leaving%20the%20European%20Union." rel="nofollow noreferrer">51.8% of the votes were in favour in leaving the EU</a>.</p>
<p>Suppose it had resulted in an tie, i.e. 50% in favour of leaving the EU, 50% against leaving the EU.</p>
<p>What legal framework existed at the time for handling such a tie? Would the government have been required to run the referendum a second time? Would they have settled it with a coin flip? Or was there no law about this possibility at all?</p>


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Answer 1: <p>You can see the whole regulations on <a href="https://www.legislation.gov.uk/ukpga/2000/41/contents" rel="noreferrer">www.legislation.gov.uk</a>.</p>
<p>It is a referendum. There does not need to be a &quot;winner&quot;. A referendum is meant to understand what the general populace <em>wants</em>. And &quot;they are split exactly 50/50 between X and Y&quot; is a valid result in that frame.</p>
<p>The point that made this referendum special was that the ruling party had promised, that they would actually <em>do</em> what the referendums outcome would suggest, even if they were <em>not</em> legally bound by it and were not even in favor of it as a political party.</p>


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<p>So what the ruling party would have done when confronted by an absolute exact tie (not only percentages, but actual votes) is anybodies guess. I don't think anybody had a backup plan for what happens if the 33,577,342 votes came out <em>exactly</em> 16,788,671 to 16,788,671. The chance of that... was not real. You prepare for that about as much as for an alien invasion on election day.</p>


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Question Title: Oregon decriminalized possession of certain drugs. Is the act of buying still illegal?


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Question Body: <p>Oregon decriminalized &quot;the possession&quot; of certain drugs. But the act of manufacturing and selling drugs is still illegal, according to this article:</p>
<p><a href="https://www.opb.org/article/2020/11/04/oregon-measure-110-decriminalize-drugs/" rel="nofollow noreferrer">https://www.opb.org/article/2020/11/04/oregon-measure-110-decriminalize-drugs/</a></p>
<p>My question is: is the act of &quot;purchasing&quot; these legal drugs still an offense? The measure says:</p>
<blockquote>
<p>A &quot;yes&quot; vote supported making personal non-commercial possession of a controlled substance no more than a Class E violation (max fine of $100 fine) and establishing a drug addiction treatment and recovery program funded in part by the state's marijuana tax revenue and state prison savings.</p>
</blockquote>


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</blockquote>
<p>It says &quot;possession&quot; is now a minor violation. But what if you get caught in the act of &quot;purchasing&quot; it? Is that still a crime? I couldn't find any mention of it.</p>


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Answer 1: <p><a href="https://sbtreatment.com/blog/oregon-decriminalized/" rel="noreferrer">It's still illegal to sell most drugs like that in Oregon</a></p>
<blockquote>
<p>Oregon did not pass the law to make the state a haven for drug users. It’s still illegal to purchase, carry, and consume illicit substances in the state of Oregon. Measure 110 will change the laws around the possession of decriminalized substances. Under the new law, carrying small amounts of any of these drugs is a civil violation that is punishable by a fine. Before, having any quantity of illicit drugs was a misdemeanor and was automatically punishable by jail time.</p>
</blockquote>
<p>It is, however, legal to grow and sell marijuana, <a href="https://www.oregon.gov/olcc/marijuana/pages/default.aspx" rel="noreferrer">provided the seller is licensed to do so</a>.</p>


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Answer 2: <p>In addition, many of these substances are still illegal to posses under Federal Law, which means the DEA can still prosecute you for drug offenses even when Oregan does not.  All that said, unless you are a major player in trafficking illegal drugs, you're likely not going to have to worry about Hank Schrader and pals knocking on your door.   As with most crime in the U.S., the state is more likely to prosecute than the Federal Government.</p>


Tags: oregon, drugs


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Question Title: Are global user account systems now illegal following the EU&#39;s May 2023 fine of Meta?


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Question Body: <p>The fine: <a href="https://www.theguardian.com/technology/2023/may/22/facebook-fined-mishandling-user-information-ireland-eu-meta" rel="nofollow noreferrer">https://www.theguardian.com/technology/2023/may/22/facebook-fined-mishandling-user-information-ireland-eu-meta</a></p>
<p>Like any website, we have an account system where people log in to access their orders and activate their software. So we have usernames, passwords, real names, recent IP addresses (for abuse protection), as well as the data of people's orders.</p>
<p>This is stored in the AWS East-1 datacenter in N. Virginia. Our users are mainly EU and US, and being in N. Virginia gives users the best overall latency.</p>
<p>We're about to incorporate in Europe, and I seem unable to interpret the recent rulings in any other way than that having a single account system is illegal, unless the account system in its entirety is hosted in the EU.</p>


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<p>The engineering challenge is unfathomable, and it seems it would be for any business from a WordPress blog to a Google account system. If an EU user has a Google login, and the account system contains their first name, and Google's account system is global, how is this not just as illegal? Aren't all account systems illegal now?</p>


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Answer 1: <p>I assume this refers to the case covered here:
<a href="https://www.theguardian.com/technology/2023/may/22/facebook-fined-mishandling-user-information-ireland-eu-meta" rel="noreferrer">https://www.theguardian.com/technology/2023/may/22/facebook-fined-mishandling-user-information-ireland-eu-meta</a></p>
<p>The gist is: Under GDPR you can only transfer personal data from inside the European Union to the outside if you have procedures in place that ensures it is still protected to European standards. Facebook was found to have failed in that regards, specifically when it came to access by US spy agencies. It seems indeed quite plausible that it is not possible to transfer personal data from the EU to the US in a way that is compatible with both EU and US law. The EU and the US are in negotiations to find a way to make this legally possible.</p>


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<p>But until then, it seems that if you do have a European subsidary and want to keep all of your account data in the same place, it needs to be a place with robust privacy protections. That doesn't require it to be in the EU, but something like US, Russia or China would be illegal.</p>


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Answer 2: <p>Basically yes, but</p>
<ol>
<li>It is not really since the fine, but since the ruling in <a href="https://curia.europa.eu/juris/document/document.jsf?text=&amp;docid=228677&amp;pageIndex=0&amp;doclang=en" rel="noreferrer">2020 that the EU-U.S. Privacy Shield</a> fails to protect Europeans' rights to data privacy when companies are transferring those data to the U.S.</li>
<li>You can still do it, but you have to be really careful.</li>
</ol>
<p>What this fine does is demonstrate that Meta has failed in doing this. One could take that as evidence that it is a hard problem to solve and it would be easier to move your data to the EU. The best summary I have come across is <a href="https://iapp.org/news/a/the-schrems-ii-decision-eu-us-data-transfers-in-question/" rel="noreferrer">this from the International Association of Privacy Professionals</a> which says:</p>
<blockquote>


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<blockquote>
<p>The CJEU reaffirmed the validity of SCCs but stated that companies must verify, on a case-by-case basis, whether the law in the recipient country ensures adequate protection, under EU law, for personal data transferred under SCCs and, where it doesn’t, that companies must provide additional safeguards or suspend transfers. The ruling placed the same requirement on EU data protection authorities to suspend such transfers on a case-by-case basis where equivalent protection can not be ensured.</p>
<p>This is where it gets tricky, particularly in the U.S. context.</p>


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<p>This is where it gets tricky, particularly in the U.S. context.</p>
<p>The CJEU itself assessed the sufficiency of protections with regard to U.S. government access to data and found them lacking. The question regulators and companies now face is whether the concerns raised by the court are applicable in the context of particular transfers and can be remedied through additional protections — again, not only in the U.S., but also in all countries without an adequacy determination.</p>
<p>Privacy professionals may need to consider whether relevant surveillance programs and authorities apply in particular contexts. If they do, they could then assess whether those authorities include proportional limitations in the given context, as well as whether effective judicial remedies exist. Alternatively, they might consider ways to limit the context itself through additional safeguards. Encryption, for instance, might be a consideration.</p>
</blockquote>


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Question Title: What is the idea behind German courts having both professional judges and lay judges?

Question Body: <p>In this <a href="https://en.wikipedia.org/wiki/Judiciary_of_Germany" rel="noreferrer">wiki</a>, it is mentioned that in trial courts there are both professional judges and lay judges involved. What is the basis behind this set up?</p>


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Answer 1: <h2>Lay Judges?</h2>
<p>The lay judges in Germany are called Schöffen. I will refer to them as such in the following because just calling them <em>lay judges</em> as a German feels kind of wrong, as they carry the full power of the court.</p>
<h2>Tracing the origin...</h2>
<p>The origin of the Schöffe goes back to the high medieval time, when a Schöffe, Schöppe or Schöpfe was a person tasked with judging and executing law on the lowest level.</p>
<p>Before the Schöffen, all men of a region had to convene to make judgments. As a member of those, the word appears in 8th century. Under Charlemagne, the law was changed from <em>all</em> men to a group of 7, and Schöffen was the name applied to that group. The same edict also made them crown officers. They were to assist the judge (who could be a noble) by answering direct questions, for example by determining guilt.</p>


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<p>This institution then branched. Over time, in England this institution (traveling in the baggage of a certain <a href="https://en.wikipedia.org/w/index.php?title=William_the_Bastard" rel="noreferrer">William the Bastard)</a> they would become the jurors.</p>
<p>In Germany, the path was somewhat different. In the free cities, Schöffengerichte would appear in the high medieval time, going totally without a judge and staffed just with (wealthy) laymen that handled the whole law. However, when the 15th century came around, the common law was started to be replaced by <em>Roman Law</em> and recorded other laws, so pretty much a shift to written laws. In the wake, many Schöffenkammern were fully replaced by studied judges. For example, the <a href="https://en.wikipedia.org/wiki/Reichskammergericht" rel="noreferrer">Reichskammergericht</a> was established in 1495 and only allowed people that had studied law to judge or even speak on behalf of a party.</p>


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<p>By the time of the neighboring French Revolution and <a href="https://en.wikipedia.org/wiki/Napoleon" rel="noreferrer">Napoleon</a> and the total disruption of the Roman Law tradition he brought in his wake, Schöffen as laymen giving judgments on their own were phased out but for the absolute lowest layers, such as the resolution of cases in villages.</p>
<p>Then... Germany... took quite a few decades to re-invent itself between Napoleon's defeat in 1814 and the founding of the <a href="https://en.wikipedia.org/wiki/German_Empire" rel="noreferrer">German Empire</a> in 1871. First as a loose alliance with self-proclaimed enlightened rulers, then as a tighter alliance under Prussian hegemony, and finally as the German Empire under Prussian hegemony. With those re-inventions of themselves came sweeping re-constructions of the legal body over and over again, and with each step nobility was robbed of some influence.</p>


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<p>In effect, by the late 19th century, Germany finally had formed its own interpretation that was based in part on the French Code Civil - or rather <a href="https://en.wikipedia.org/wiki/Napoleonic_Code" rel="noreferrer">Code Napoléon</a>, bits and pieces of Roman Law and canonized laws from the Holy Roman Empire, the various legal codes from the lower layers that made up the German Empire and over that a very Prussian onlook, but in general, it was meant to be <em>enlightened</em>.</p>
<p>In this environment, the Schöffen (and jurors) were meant as a means to limit the nobility's influence on court judgments and in part to bring a pragmatic non-jurist's view on problematic cases into the courts.</p>
<h2>Origin of the modern Schöffen: The Weimar Republic!</h2>


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<h2>Origin of the modern Schöffen: The Weimar Republic!</h2>
<p>Between 1879 and 1924 technically Jurors <em>also</em> existed in the Schwurgerichtskammer which had 12 Jurors and 3 professional Judges and was operating very similar to a common law court in that jurors decided on guilt and judges on punishment. This setup was created during the German Empire and just kept when the First World War ended with the loss of all nobility. In the so-called Weimar Republic times or the Interwar period, this part of the German judiciary was not touched for 6 years, as there were far more pressing matters.</p>


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<p>However, in 1924 a wide-sweeping justice reform took place. Erich Emminger, the German justice minister, is often blamed for this &quot;Emminger-Novelle&quot;, or rather the <em>Verordnung über Gerichtsverfassung und Strafrechtspflege</em>. As a result, the Jurors were entirely removed and replaced with 6 layman judges - now called Schöffen - that had to assist the professional judges.</p>
<h2>Modern Schöffen - and where to find them</h2>
<p>After a few smaller reforms since the Emminger-Novelle, today a German Schwurgerichtskammer (or Große Strafkammer) is comprised of 3 professional judges and 2 Schöffen. In a similar fashion, the Landgerichte - or rather the chamber of appeals of the Landgericht - is comprised of one professional judge and 2 Schöffen, forming the Kleine Strafkammer, which is doing criminal appeals cases of the Amtsgericht. Both types are prescribed in <a href="https://www.gesetze-im-internet.de/gvg/__76.html" rel="noreferrer">§ 76 (1) GVG</a>.</p>


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<p>Amtsgerichte, the layer below the Landgericht, has specific matters that are to be given to the Schöffengericht under <a href="https://www.gesetze-im-internet.de/gvg/__28.html" rel="noreferrer">§ 28 GVG</a> and is set up with one professional judge as well as 2 Schöffen under <a href="https://www.gesetze-im-internet.de/gvg/__29.html" rel="noreferrer">§ 29 GVG</a>. The court may decide to <em>double up</em> the professional judges, if the prosecution (Staatsanwaltschaft) requests this and the court finds the case to be complicated enough. In that case, an appeal to the Kleine Strafkammer <em>also</em> doubles up the judges automatically.</p>
<p>The general rule if a case gets to the Schöffengericht or a Straftrichter is based on the type of case and the estimated punishment:</p>
<ul>


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<p>The general rule if a case gets to the Schöffengericht or a Straftrichter is based on the type of case and the estimated punishment:</p>
<ul>
<li>All civil cases in the first instance get you to just a professional judge in the shape of an Einzelrichter - which is the term §22 GVG uses to demark a professional judge. No way to get a Schöffen there.</li>
<li>Civil cases in appeals or revision get seen by (up to) 3 professional judges and there are no Schöffen involved.</li>
<li>In a criminal case that would commonly end in less than 2 years if guilty goes to just a professional judge in the shape of an Einzelrichter, who acts as the Strafrichter. He <em>can</em> however sentence up to 4 years, even without Schöffen.</li>
<li>For a criminal case between 2 years and 4 years of estimated punishment, if the case ends with guilty, the Schöffengericht is to be consulted, set up of one professional Judge and two Schöffen.</li>


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<li>If the case brings up evidence that more than 4 years are warranted, the Amtsgericht gives the case to the Landesgericht.</li>
<li>Criminal cases that have an estimated punishment of 4 years or more, the case will be handled by the Landesgericht in the first place.</li>
</ul>
<p>There are no Schöffen in any of the layers of Oberlandesgericht, which among others handles appeals cases of the Landgericht as well as revision cases of both Amtsgericht and Landgericht.</p>
<h2>How do Schöffen influence judgments?</h2>
<p>The Schöffen are deemed to have not only the same weight but also the same influence on the court case. Since Germany is an inquisitorial system, they can ask questions to witnesses and others <em>during trial</em> just as much as the professional judge and they get the same case file. However, there is a fine limit:</p>
<ul>


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<ul>
<li>Unlike judges, they are not allowed to request visitation to the crime scene and may not do further investigations outside of the courtroom.</li>
</ul>
<p>Besides this point, they are equal in all questions - or rather: the court speaks with a single voice that is made up of all the judges, professionals and Schöffen together. To decide on guilt, a 2/3 majority of the chamber is needed, so in the normal first-instance chamber, the Schöffen could decide on guilt alone, while an enlarged chamber allows them to block a conviction against their will. In mere procedural questions, a simple majority is sufficient, but it is often customary for the Schöffen to follow the opinion of the professional Judge in those administrative matters.</p>
<p>Schöffen are called upon for 5 years for as many trials as needed</p>


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Question Title: How would one protect one self from a suit while skiing?

Question Body: <p>I am skiing and cause unintentional injury to another slope patron/client.
How would I protect myself from being sued?
Is there insurance if sued that could protect my assets if found negligent and cover legal costs of lawyer and trial, regardless if found negligent?</p>


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Answer 1: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<blockquote>
<p>I am skiing and cause unintentional injury to another slope
patron/client. How would I protect myself from being sued?</p>
</blockquote>
<p>Use reasonable care to avoid harming others, and follow all applicable rules of the ski area. Keep your equipment in good repair. Don't ski when you are drunk or high or in circumstances you can't handle. Try not to collide with people.</p>
<p>If you do collide with someone do what you can to mitigate their injuries, identify ways to document facts favorable to you, and promptly contact your insurance company.</p>
<blockquote>
<p>Is there insurance if sued that could protect my assets if found
negligent and cover legal costs of lawyer and trial, regardless if


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<blockquote>
<p>Is there insurance if sued that could protect my assets if found
negligent and cover legal costs of lawyer and trial, regardless if
found negligent?</p>
</blockquote>
<p>For this, you need liability insurance. In the United States, liability insurance is typically included in homeowner's or renter's insurance. These kinds of liability insurance typically cover the cost of a legal defense of a covered claim and any damages awarded or paid in a settlement of those claims (up to the policy limits).</p>
<p>These kinds of liability insurance would typically cover liability arising from a skiing accident and most other claims for negligence, but would typically not cover claims related to intentional acts or a criminal prosecution. A homeowner's or renter's insurance policy would also not typically cover vehicle accidents (e.g. your liability while operating a snowmobile), claims related to a business or an occupation,  or claims related to contractual liability.</p>


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Answer 2: <p>This is what liability insurance is for: It covers you if you accidentally cause damage to someone else. My understanding is that liability insurance would typically handle the entire legal process for you.</p>


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Answer 3: <p><a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a></p>
<p>Not really a &quot;law&quot; question, but anyway: The liability insurance you want is called &quot;Privathaftpflicht&quot; (private liability). It is offered by all major insurance providers.</p>
<p>It is ridiculously cheap for what it covers. The first Google hit says 3.17€ a month, and that is just the sponsored first hit, not the cheapest. So expect almost everybody in Germany to have one.</p>


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<p>It covers damages to things and people you cause, by anything but intent. So negligence and even gross negligence. It does not cover damages caused to your own things (so if drop your friends expensive camera and it shatters your glass table, it will pay the for the damage to the camera, it will not pay for the damage to your own table) or damages that animals you own cause (that is an extra insurance). Also, most motor vehicles (cars, trucks etc.) are legally required to have liability insurance to drive them on public roads - this is checked during vehicle registration.</p>
<p>One prominent example of what such an insurance covers is:</p>
<blockquote>
<p>When crossing the street, you overlook a cyclist. While swerving, the cyclist falls onto the curb and breaks his thigh.</p>
<p>Damage: approx. 75,000 euros</p>
<p>Private liability covers hospital and household costs as well as compensation for pain and suffering.</p>
</blockquote>


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<p>Damage: approx. 75,000 euros</p>
<p>Private liability covers hospital and household costs as well as compensation for pain and suffering.</p>
</blockquote>
<p>That is basically a reskinned ski accident.</p>
<p>It will also cover all lawyer costs if you <em>didn't</em> actually do it. Which is basically in their own interest, because if found guilty, they would have to pay it anyway.</p>
<p>As always, read all the fine print on any contract, what I wrote here is the normal default, your specific contract may vary.</p>


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Answer 4: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<p>In Canada, many home or renter insurance products include coverage for property damage or bodily injury caused by your negligence, no matter whether happening in your residence or elsewhere. This portion of the product is called &quot;liability coverage&quot; or something similar.</p>


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Answer 5: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>As others have pointed out, liability insurance derived from your homeowner's or renter's insurance can give you protection.</p>
<p><em><strong>If you have significant assets in addition to your home</strong></em>, you can add an &quot;Umbrella&quot; policy for additional liability coverage in excess of your home's value. It's not very expensive to add coverage for an additional million or more dollars.</p>


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<p>Also, you might take a chapter from the car driver's playbook. Some drivers install a dash cam to provide a video record of the events leading up to a crash. This can save your bacon if the other driver has no compunction against lying about an accident and there are no witnesses. <em><strong>Skiers can wear a harness or helmet mount to hold a GoPro</strong></em> or other video recorder. In the event of an accident where you injure someone, the video record can prove that you were following the rules and not hot dogging. But remember, video evidence can be used against you too, so be sure this is a prudent liability safeguard for your skiing style.</p>


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Answer 6: <p>It's similar to driving on the road:</p>
<ol>
<li><p>Be well trained and get plenty of practice in a safe area.</p>
</li>
<li><p>Be aware of your surroundings (other people, objects, type of snow and weather).</p>
</li>
<li><p>Be in a fit condition to ski.</p>
</li>
<li><p>Consider a helmet-mounted crash or go-pro type camera, minding privacy laws in your area.</p>
</li>
<li><p>Consider relevant insurance (minding exactly what you're covered for and the excess, etc.):</p>
<ul>
<li>Travel (this is the usual one, covering equipment damage/loss and injury to yourself and others),</li>
<li>Health (for you),</li>
<li>Liability (more for hosted activities),</li>
<li>Property insurance might cover such (not usually).</li>
</ul>
</li>
</ol>


Tags: liability


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Question Title: Small claims when insurance refuses to pay

Question Body: <p>If a delivery driver damages property when making a delivery and the company's insurance refuses to pay, can I sue the driver directly?</p>
<p>Can I sue the company and/or the owner of the company directly?</p>
<p>If insurance is only willing to pay part of an estimated repair bill, can I sue the driver, company and company owner for the remainder?  ie. The estimated repair costs are $1400 but the insurance company says they will only pay $600.  They have given no rational on how they came up with $600 and have not had anyone come out to provide an alternate estimate.  They just somehow decided it looked like $600 in damages based on photographs and aren't going to pay more than that.</p>
<p>Since the amount is relatively small, could these be handled in small-claims court?</p>


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Answer 1: <p>Generally speaking, if someone does damage to you, you can sue for the extent of the damage. There will be arguments about what the actual dollar figure is, and jury (judge) will determine that number is correct. The defendant's insurance company plays a relatively minor (?) role in this process since they may (usually must) provide the lawyer arguing the defendant's side – the insurance company does not have veto power.
If you accept a partial payment, you might have waived your right to sue for the rest, but you can hire an attorney to read over everything that you sign so that you don't unwittingly agree to accept a lowball figure.</p>


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<p>Since this is a small amount (not a 32 Million dollar class action suit), you can sue in small claims court, which simplifies matters. You have to submit the correct form and sue the right person, and the courts do not tell you who that is. Your attorney will know the answer, and you might be able to find out what the answer is <a href="https://legalaidnc.org/resource/a-guide-to-small-claims-court/" rel="nofollow noreferrer">here</a>.</p>


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Question Title: Charged $70 for using wrong dumpster

Question Body: <p>Email from complex: Trash Reimbursement-2 bags found in constrution dumpster $70</p>
<p>My son came over mother's Day took out my trash. he put it in the construction dumpster instead of the regular dumpster which is about 30 ft away. My apartment complex has charged me $70 for two Amazon boxes is that legal?</p>
<p>Lease:
Rubbish Removal - Tenant agrees to keep the apartment in a reasonably clean condition. Garbage and refuse should be wrapped/tied in</p>
<p>plastic bags and regularly removed from the apartment to avoid unsanitary/odor conditions. No trash shall be stored in public view
(example: common hallways, patios/balconies, etc). Trash removal from common areas will be billed at $35 per item. Tenant shall place rubbish/trash in designated trash containers for waste removal service pick up. Tenant agrees to abide by all property recycling
requirements.</p>


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Answer 1: <p>We'd need to know more about the jurisdiction, but in the US at least I think the general conclusion would be &quot;yes&quot;, it is.  Use of trash bins and dumpsters is pretty tightly regulated. Your lease most likely includes specific terms about the use of dumpsters, as well.</p>
<p>For a simple explanatory hypothetical, think &quot;a junkie (or neighbor who hates you, etc.) tosses drugs and/or drug paraphernalia into my trash, but leaves the lid off; a neighbor sees it, calls the police; police think they're my drugs, now I have to deal with charges on that&quot;. That's a major pain and a potentially serious disruption to your entire life and reputation.  It'd be nice if there were laws to discourage that and absolve you of responsibility when some ne'er-do-well comes along, right?  Well, there are: in all US jurisdictions I'm aware of, you may use only those receptacles you are authorized to use or you can be fined (or worse, depending).</p>


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<p>An additional reason is that trash pickup is done under contracts—in your case, between your apartment complex and a trash disposal company, and a construction company and a potentially different trash disposal company. A given receptacle may only be expected and contracted to have specific kinds and amounts of refuse in it, and is only expected to be serviced for that.  Having excessive refuse or inappropriate refuse causes problems for the one disposing of the trash, and may incur additional fees or breach of contract issues to the one(s) authorized to dispose into the receptacle. This can result in disruption or termination of disposal services, too. Certain jurisdictions may also legally require that a certain percentage of certain refuse types (e.g. recyclables) go into particular bins, and may impose fines for failure to comply. Understandably, a construction business (or apartment complex, or private resident, etc.) is not going to want to deal with these issues when someone


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bins, and may impose fines for failure to comply. Understandably, a construction business (or apartment complex, or private resident, etc.) is not going to want to deal with these issues when someone drops additional trash into their bin.</p>


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<p>In short: dumpsters are not public free-for-alls, and you can expect to be fined for ignoring that.  Same goes for private trash bins: you can't just freely toss a bit of trash you have into a neighbor's garbage bin just because it's on the curb for pickup and it's convenient.</p>


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Question Title: Made aware of a utility easement a year on

Question Body: <p>Assume that around 1911 a utility sewer is laid down on private land with an easement that was limited “until a public sewer pipe be built”, with the document being properly filed. Such a construction never happens and the easement eventually is forgotten to be put on the title documents to the house on the register.</p>
<p>Now, the house is sold without notice of that easement. It comes back up when the water company actually comes along a year after the sale to do some work on the pipe they have the easement to. However, a copy of the easement document can be located, dated and filed in some old drawer of some registry.</p>
<p>Can this easement be revoked or is it forever?</p>


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Answer 1: <p>While this question was initially posed as a request for legal advice, I've stated some general principles of this kind of situation generically.</p>
<p>You are deemed to have &quot;constructive notice&quot; for legal purposes of all documents filed in the public record pertaining to your property whether you know it or not.</p>
<p>You are also on notice of anything that a reasonably informed person could assume to exist from observable facts (like that existence of municipal water and sewer service) upon an inspection of the property. In terms of reasonable expectations, almost every urban home is subject to multiple utility easements. If your home has (or most homes in your neighborhood have) municipal water service, municipal sewer service, electrical service, and cable or telephone lines, there are almost certainly easement in place for all of these things.</p>


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<p>Typically, in a contract for the purchase of real estate, there is a fixed deadline for you (or a title company on your behalf) to review the public record to find what is there. If you don't object by that deadline to any title issues, you can't get out of the real estate contract or undo it.</p>
<p>Typically, the deed from the seller will contain an exclusion from the warranty of title for &quot;all easement of record.&quot;</p>
<p>If the title insurance policy contains an exclusion for easements, you can't make a claim against that title insurance policy.</p>


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<p>If the title insurance policy contains an exclusion for easements, you can't make a claim against that title insurance policy.</p>
<p>Even if there weren't an easement in the public real property records, anything that has been there since 1911 would benefit from a &quot;prescriptive easement&quot; which is the equivalent of adverse possession a.k.a. squatter's rights, for easements. In New Jersey, for example, <a href="https://cdn.ymaws.com/www.njspls.org/resource/resmgr/2018_HANDOUTS/n-2017_Jersey-Prescriptive_s.pdf" rel="noreferrer">the prescriptive easement time period is usually twenty years</a> and never more than sixty years.</p>


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<p>Furthermore, utilities usually have the power, delegated to them by the government that grants them permission to operate or by the state, to create new easements at the very modest price associated with a reduction in fair market value caused by the easement. This is often estimated to be half of the fair market value of the unimproved land per square foot times the actual square footage occupied by the utility when it isn't working on its infrastructure.</p>
<p>Easements, once established, run with the land, and generally can't be removed without the permission of the party for whose benefit the easement is granted a.k.a. the owner of the dominant estate (<a href="https://en.wikipedia.org/wiki/Servitude_in_civil_law" rel="noreferrer">in legal terminology</a>, the utility's rights in the easement are called the &quot;dominant estate&quot; and the home owner's rights in the property subject to the easement are called the &quot;servient estate&quot;).</p>


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<p>There may be implied in law duties of someone using an easement to restore damage caused after using it, but it wouldn't be worth suing over that for a bit of displaced grass and a rose bush.</p>


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Answer 2: <h2>Sewers have statutory easements</h2>
<p><a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" aria-label="show questions tagged &#39;new-south-wales&#39;" rel="tag" aria-labelledby="tag-new-south-wales-tooltip-container">new-south-wales</a></p>
<p>That is, wherever the sewer lies, it has an easement that doesn't have to be registered. This does not apply to drains.</p>
<p>A sewer is a pipe or conduit for sewage owned and operated by a statutory body tasked with providing sewerage services; a drain is a pipe for sewage owned and operated by a private person. The drains from your house usually connect to a sewer.</p>


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<p>Water utilities have the same benefit for their water mains. However, gas, electricity, and telecommunications utilities don't. Why that is is a historical accident - water and sewerage utilities already existed when the land titles system was developed in New South Wales, but the others are Johnny-come-latelies.</p>


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Answer 3: <p>In the Netherlands, you're out of luck.</p>
<p>You're supposed to do proper research about such things before purchasing the property, and property is purchased as is (with a mandatory clause about hidden defects, but that doesn't include things like easements and improper zoning, only construction flaws in the house basically).</p>
<p>That's one reason there is a mandate to use a professional for such transactions, and it's their job to do the research and do it properly. This can turn up things like unlisted easements, improper property boundaries, zoning violations, which can then be corrected in the public record, and may or may not lead to the purchase falling through or the purchase price being adjusted to account for them.</p>
<p>And those notaries do tend to do a proper job. And their job is needed as sometimes mistakes in the public record are found that even the selling party wasn't aware of.


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<p>And those notaries do tend to do a proper job. And their job is needed as sometimes mistakes in the public record are found that even the selling party wasn't aware of.
For example the notary I used when buying my house told a story where he'd (on another transaction) had found that the garden shed was not on the plot of land being sold, it was zoned separately. The public zoning record was adjusted, the plots were merged, problem solved. Had he not found that, the house'd have been sold but the garden shed would still have belonged to the previous owner.</p>


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Question Title: Is it legal to create a website that freely provides the contents of books which are another company&#39;s IP?

Question Body: <p>This question is rather specific. I am a fan of the tabletop roleplaying game 'Call of Cthulhu' by Chaosium Inc., but find since it isn't hugely popular that there aren't enough easily accessible online resources for the game. <br>
I want to create a website which serves as an electronic resource for finding the information strewn throughout Chaosium's many source books for the game.
<br><br>
Would it be legal for me to do so?<br>
My best reference for this is a very similar website for Dungeons and Dragons, <a href="https://5e.tools" rel="nofollow noreferrer">5etools</a>, which has almost all the content from all of Wizard of the Coast's books freely available on it. Is this not plagiarism? Piracy? It doesn't quite feel fully legal to me.
<br> <br>
Thanks!</p>


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Answer 1: <p>You cannot legally publish someone else's materials on a website.</p>
<p>It is no different from publishing a copy of a book for profit.</p>


Tags: copyright, intellectual-property, internet


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Question Title: Does a possible municipal code violation have to be warned about immediately and what is the standard? Can they warn you years after work is complete?


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Question Body: <p>This is somewhat of a follow up to another post I made recently. If someone is building on a site newly purchased, and hires contractors / gets permits when required, and then three years later the city has a change of leadership, how long does the city have to decide you did something wrong and make you stop work? For example, let's say that the work you went to the city to get a permit for, you were told that you don't need a permit for... then three years later with a new leader the complaints made about your project by your neighbor get the attention of leadership, can they say oops sorry you did need a permit because your property was on a steep slope or in a protected area, and then blame the landowner / property owner and make them stop work?</p>


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<p>Does the &quot;waive an objection&quot; / consent doctrine apply to building and possible code violations? Is it ok for them to do this if they previously gave you permission to work without a permit on some specific aspect of the job, while you sought permits on other parts in good faith?</p>
<p>This is kind of interwoven with whatever an SOL would be on this particular action.
Landowner isn't necessarily trying to deceive, but was acting in good faith based on relying on the city's advice.</p>
<p>Seems like the home owner / land owner detrimentally relied on the bad advice of the city.</p>
<p>What notice should the city have to give the landowner for a fine to be legal? Do they have to notify right away as soon as a violation is brought to their attention? And if no, how long do they have to change their minds?</p>


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Answer 1: <p>The statute of limitations for this varies greatly from place to place and may vary as well based upon the remedy sought. There might be one statute of limitations for imposing a fine, another for injunctive relief to tear down work, and a third to impose the sanction of not authorizing further work until past violations are cleared up.</p>
<p>For example, a stop work order is obviously moot once the work is done.</p>
<p>Whether you can rely on a statement from a city official to waive an obligation under a municipal ordinance depends upon the authority of that official to do so.</p>
<p><em>United States v. Laub</em>, 385 U.S. 475 (1967), <em>Cox v. Louisiana</em>, 379 U.S. 559 (1965), and <em>Raley v.
Ohio</em>, 360 U.S. 423 (1959), stand for the proposition that a defendant may not be punished for
actions taken in good faith reliance upon authoritative assurances that he will not be punished for
those actions.</p>


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actions taken in good faith reliance upon authoritative assurances that he will not be punished for
those actions.</p>
<p>Usually, no one, except possibly the city attorney or the city council has that authority. But this can vary significantly from one jurisdiction to another.</p>
<p>Ignorance of the law is no excuse. The City doesn't have to provide you with any notice that you are violating the law.</p>


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Question Title: Can hypothesis-publishing make one liable for defamation?

Question Body: <p>It is understandable that if Bob says &quot;Rob murdered Alice&quot;, Bob will be liable for defamation unless he can prove that Rob indeed murdered Alice on the preponderance of evidence (this is true even if Rob has been acquitted of murdering Alice — because the standard of proof in the criminal trial would have been much higher than in the defamation case).</p>
<p>But what if Bob instead publishes a <em>hypothesis</em> that Rob murdered Alice: he analyses the well known facts about Rob, Alice and the circumstances of her death, and concludes that those facts are <em>consistent with</em> Alice being murdered by Rob?</p>
<p>Would Bob be still liable for defamation? Or does the form of hypothesis reasonably based on facts (vs outright accusation) save him from that trouble?</p>
<p>(Any jurisdiction)</p>


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Answer 1: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<p>The aspects of a defamation claim that seem to be in issue are the following:</p>
<ul>
<li>is the publication defamatory in the sense that it <a href="https://law.stackexchange.com/a/85996/46948">tends to lower the reputation of the subject in the eyes of a reasonable person</a></li>
<li>does the statement fall within a defence to defamation, specifically fair comment or truth</li>
</ul>
<p>Your statement of the scenario is somewhat ambiguous for the purposes of the above analysis:</p>
<blockquote>
<p>But what if Bob instead publishes a hypothesis that Rob murdered Alice: he analyses the well known facts about Rob, Alice and the circumstances of her death, and concludes that those facts are consistent with Alice being murdered by Rob?</p>


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</blockquote>
<p>It matters whether Bob:</p>
<ul>
<li>simply publishes &quot;Rob murdered Alice&quot;, Bob's hypothesis</li>
<li>publishes &quot;Rob murdered Alice&quot; accompanied with language or context that communicates that it is merely a hypothesis</li>
<li>publishes the underlying facts, the analysis, along with the conclusion of consistency</li>
</ul>
<p>Your description is ambiguous because despite talking about Bob's methodology in arriving at his conclusion, you don't clearly say that he publishes that along with the hypothesis.</p>
<h3>The plaintiff's threshold burden: Is the statement defamatory?</h3>
<p>Depending on the precise content of the published statement it may meet the low threshold of tending to lower the reputation of the subject in the eyes of a reasonable person.</p>


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<p>Depending on the precise content of the published statement it may meet the low threshold of tending to lower the reputation of the subject in the eyes of a reasonable person.</p>
<p>If it does, then the burden will flip to the defendant to establish a defence, such as truth or fair comment. Of these, based on the methodology you have described, I view fair comment as the more directly applicable defence, but it does really depend on what the content of the publication is.</p>
<h3>Fair comment defence</h3>
<p>The <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/5670/index.do" rel="noreferrer">test for fair comment is</a>:</p>
<blockquote>
<p>(a) the comment must be on a matter of public interest;</p>
<p>(b) the comment must be based on fact;</p>
<p>(c) the comment, though it can include inferences of fact, must be recognisable as comment;</p>


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<p>(b) the comment must be based on fact;</p>
<p>(c) the comment, though it can include inferences of fact, must be recognisable as comment;</p>
<p>(d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts?</p>
<p>(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.</p>
</blockquote>
<p>For a fair comment defence, the receivers of the impugned statement must be able to identify the underlying facts on which the statement is based. Therefore, it would not be enough for the hypothesis to be &quot;reasonably based on facts&quot;; those facts need to be also published to the listeners/readers and a reasonable listener/reader needs to be able to associate the impugned statement as being based on those.</p>


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<p>Another component of the fair comment defence is that the statement must be one of opinion, not fact. If the statement, considered in its full context, is not amenable to empirical verification or falsification, then it is a statement of opinion.</p>


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Answer 2: <p><a href="/questions/tagged/france" class="post-tag" title="show questions tagged &#39;france&#39;" aria-label="show questions tagged &#39;france&#39;" rel="tag" aria-labelledby="tag-france-tooltip-container">france</a></p>
<p>I will not address procedure in detail because to be frank it’s really subtle and way beyond my knowledge - it is full of technical points in favor of the defendant (intentionally, it makes <a href="https://en.wikipedia.org/wiki/SLAPP" rel="noreferrer">SLAPPs</a> harder). All I will say about it is that it ends up treated as a criminal rather than civil matter. The plaintiff must <em>porter plainte</em> (press criminal charges), which triggers a criminal procedure, in which they then make a <em>constitution de partie civile</em> (become a civil party to the case), and they get reparation only if the criminal trial convicts the defendant.</p>


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<p>The statutory basis is <a href="https://www.legifrance.gouv.fr/loda/article_lc/LEGIARTI000006419790" rel="noreferrer">article 29 of the 29 July 1889 law about freedom of the press</a>:</p>
<blockquote>
<p>Toute allégation ou imputation d'un fait qui porte atteinte à l'honneur ou à la considération de la personne ou du corps auquel le fait est imputé est une diffamation. La publication directe ou par voie de reproduction de cette allégation ou de cette imputation est punissable, même si elle est faite sous forme dubitative ou si elle vise une personne ou un corps non expressément nommés, mais dont l'identification est rendue possible par les termes des discours, cris, menaces, écrits ou imprimés, placards ou affiches incriminés.</p>
</blockquote>
<blockquote>


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</blockquote>
<blockquote>
<p>Any factual claim that attacks the honor or standing of another person or group is libel. Publishing or reproducing that claim is punished, even if put as a question, or if the person or group is not readily named but is identifiable [via the context].</p>
</blockquote>


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</blockquote>
<p><em>Note that &quot;diffamation&quot; (translated above by &quot;libel&quot;) is constituted as soon as a claim is factual and objectively disgraceful, regardless of whether the claim is true, or whether it attracts liability. It is common to have the losing instigator of a SLAPP to claim a &quot;victory&quot; against journalists, quoting a part of the verdict where tribunal recognizes the claims to be &quot;diffamatoires&quot; (&quot;libelous&quot;). This sometimes fools the public into thinking that the factual claims were false, even if the tribunal made no such determination, and in fact might have made the opposite determination in another part of the verdict. I will use the English term &quot;defamation&quot; for the common English meaning of &quot;factual claims published in violation of the law&quot; and the term &quot;libelous&quot; for the French legal meaning of &quot;factual claims that attack one’s honor or standing&quot;.</em></p>


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<p>Claiming that someone committed a crime is a factual claim that &quot;attacks the honor or standing&quot;. That claim need not be written out explicitly, if a reasonable reader would deduce it. That would depend a lot on the exact wording, but &quot;I observe fact A, fact B, fact C, and I have the feeling that all of it leads to the conclusion that Rob murdered Alice&quot; is going to be treated as a claim that Rob murdered Alice.</p>
<p>Now, we move onto the affirmative defenses to defamation. One defense is the exception of truth, where the defendant must prove the allegations to be true or substantially true; however, in the case at hand, they are not going to be able to do it.</p>


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<p>Another defense is a creation of case law, the <em>exception de bonne foi</em> (good-faith defense). The general feeling is that it is similar to the US &quot;actual malice&quot; standard in reverse, where the defendant must prove that he or she made significant efforts to verify the truth of the matter, and was measured in their expression. Because it is a creation of case law, it is difficult for a non-expert such as myself to be quite sure of the limits (also, I was told that in recent years, there was a trend towards larger freedom of speech due to ECtHR influence).</p>


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<p>An example case would be <a href="https://www.legifrance.gouv.fr/juri/id/JURITEXT000007052660?init=true&amp;page=1&amp;query=02-19.136&amp;searchField=ALL&amp;tab_selection=all" rel="noreferrer">Cour de Cassation, Chambre civile 2, du 24 février 2005, 02-19.136</a>, according to which good faith requires some objective prudence in the way the assertion is made. A tabloid-style newspaper published an article attacking a singer. A lower-court dismissal was reversed by the Cour de Cassation:</p>
<blockquote>
<p>Attendu que les imputations diffamatoires sont réputées de droit faites avec intention de nuire et que cette présomption n'est détruite que lorsque les juges du fond s'appuient sur des faits justificatifs suffisants pour faire admettre la bonne foi ; (...)</p>
<p>Attendu que pour les débouter de leurs demandes, l'arrêt retient que (...) la bonne foi s'apprécie en fonction du genre du journal (...)</p>


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<p>Attendu que pour les débouter de leurs demandes, l'arrêt retient que (...) la bonne foi s'apprécie en fonction du genre du journal (...)</p>
<p>Qu'en statuant ainsi, alors que le caractère provocateur et sarcastique du magazine dans lequel avait été publié l'article litigieux ne dispensait pas des devoirs de prudence et d'objectivité, la cour d'appel a violé les textes susvisés ; (...)</p>
</blockquote>
<blockquote>
<p>Given the presumption that libelous claims are not made in good faith [i.e. good faith is an affirmative defense], and rebutting that presumption requires that justifying elements be given; (...)</p>
<p>Given that to dismiss the case, the verdict holds that (...) good faith is appreciated based on the type of journal [i.e. based on context] (...)</p>
<p>By ruling so, although the provocative and sarcastic nature of the publishing newspaper did not remove the need for prudence and objectivity, the lower court did not follow the law; (...)</p>
</blockquote>


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Answer 3: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>The fact that a statement is made in a form other than an assertion of fact is not an absolute defense to a defamation claim in the U.S., if the statement can fairly be understood as a veiled or coded statement of fact.</p>
<p>This is for the trier of fact (usually a jury) to decide if a judge determines that a reasonable juror could interpret the statement in this way.</p>


Tags: defamation


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Question Title: If pharmaceutical manufacturing meets US CFR 21, or its European equivalent is it automatically accepted by all other countries?

Question Body: <p>If pharmaceutical manufacturing meets US CFR 21, or its European equivalent is it automatically accepted by all other countries?</p>
<p>Do other countries automatically accept any other countries manufacturing standards if they are more stringent?</p>


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Answer 1: <blockquote>
<p>If pharmaceutical manufacturing meets US CFR 21, or its European equivalent is it automatically accepted by all other countries?</p>
<p>Do other countries automatically accept any other countries manufacturing standards if they are more stringent?</p>
</blockquote>
<p>There may be countries that do this, but certainly not <em>all</em> countries do it, to address the question in the first paragraph.</p>
<p>The European Union, for example, has several <a href="https://www.ema.europa.eu/en/human-regulatory/research-development/compliance/good-manufacturing-practice/mutual-recognition-agreements-mra" rel="nofollow noreferrer">mutual recognition agreements</a> in place with several countries that have comparably strict manufacturing standards in place (Australia,
Canada,
Israel,
Japan,
New Zealand,
Switzerland, and the
United States).</p>


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Canada,
Israel,
Japan,
New Zealand,
Switzerland, and the
United States).</p>
<p>From <a href="https://www.ema.europa.eu/en/human-regulatory/research-development/compliance/good-manufacturing-practice" rel="nofollow noreferrer">https://www.ema.europa.eu/en/human-regulatory/research-development/compliance/good-manufacturing-practice</a>:</p>
<blockquote>
<p>Manufacturing sites outside the EU are inspected by the national competent authority of the Member State where the EU importer is located, unless a mutual recognition agreement (MRA) is in place between the EU and the country concerned. If an MRA applies, the authorities mutually rely on each other's inspections.</p>
</blockquote>


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</blockquote>
<p>It's easy to imagine that some of the countries that would rather accept the results of (for example) FDA inspections than inspect manufacturers themselves do not have the technical level required by the FDA to conclude a mutual recognition agreement.  Such countries could unilaterally decide to honor the results of FDA inspections.  Whether any countries actually do this, I do not know.</p>


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Question Title: If non-employee whistle blows and reports/tips to government organization, what are the protections offered?

Question Body: <p>If non-employee whistle blows and reports something else to government organization via anonymous tip or non-anonymous tip, what are the protections offered/possible in theory?</p>


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Answer 1: <p>A &quot;whistleblower&quot; is by definition an employee, so I assume you mean &quot;what protections does the government provide if a person provides some evidence of wrong-doing?&quot;. Basically, you may be protected against violent retribution via some kind of witness-protection program, in case you are actually a witness in a criminal prosecution. On the other hand, if you call the local health department and (truthfully) tell them that some restaurant is mixing rat feces into their hamburger, the restaurant (if it survives the experience) can legally refuse to serve you in the future if they find out. They can also refuse to serve you if you smell bad or talk back to the waitress. On the third hand, a mechanic cannot confiscate or destroy your car because you informed the tax man that they aren't properly collecting sales tax. Employee whistleblowers on the other hand do enjoy special privileges, for example they cannot be fired for reporting illegal conduct, even


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the tax man that they aren't properly collecting sales tax. Employee whistleblowers on the other hand do enjoy special privileges, for example they cannot be fired for reporting illegal conduct, even though an employer can generally fire an employee for any or no reason.</p>


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Question Body: <p>I recently had a message from PayPal telling me that my account has been permanently suspended due to 'unacceptable risk'.
I have only ever used it to make small payments to eBay and such, and I have a maximum credit score on Experian. So there must be some mistake. The 'permanently' language is pretty obnoxious. I logged into my account to check and this is legitimate and not phishing</p>
<p>What kind of rights do I have in this situation? Do I have a right to an explanation of what the 'unacceptable risk' is?
Do I have a right to know whether this decision was made by a human being or by an automated system? (It looks pretty much definitely automated to me)
Do I have a right to have a human being review the decision?
Do I have any other relevant rights that may be helpful for for me to know about before ringing Paypal to discuss this?</p>
<p>I live in the UK.</p>
<p>Edit;


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Do I have any other relevant rights that may be helpful for for me to know about before ringing Paypal to discuss this?</p>
<p>I live in the UK.</p>
<p>Edit;
o.m. pointed out in the comments that if I am with the EU subsidiary of PayPal then the situation may be different as PayPal is considered a bank in this jurisdiction. It looks like this is the case and I am registered with the EU version</p>


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Answer 1: <p>Read the terms: <a href="https://www.paypal.com/uk/legalhub/useragreement-full#resolving" rel="nofollow noreferrer">https://www.paypal.com/uk/legalhub/useragreement-full#resolving</a></p>
<blockquote>
<p>These are the terms and conditions of the contract between you and
PayPal (Europe) S.à r.l. et Cie, S.C.A. (“PayPal”) governing your use
of your PayPal account and the PayPal services, which we call our user
agreement. It applies only to PayPal accounts of residents of the
United Kingdom (UK), Guernsey, Isle of Man and Jersey.</p>
</blockquote>
<p>PayPal is a private business; the terms you agreed to allow them to  suspend your account for any of the many listed reasons and stipulations in the terms. (As long as that reason is itself isn't illegal, such as discrimination against protected classes, breaking clear financial laws, etc.)</p>


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<p>You may get some help from <a href="https://www.gov.uk/consumer-protection-rights" rel="nofollow noreferrer">https://www.gov.uk/consumer-protection-rights</a></p>


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Question Title: Tax implications when assigning a patent application to a non-US company?

Question Body: <p>When a US company transfers ownership for a pending patent application via an assignment to a company outside the US, say for 1 Dollar, are there any tax implications to worry about?</p>

<p>As for the 1 Dollar, I suppose at the pending stage, the argument can be made that the patent application has no substantial value yet and is potentially worthless (and potentially rejected).</p>


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Answer 1: <p>A $1 is often used to transfer things between companies, purely because there is no realised value yet and the contract needs an amount to be paid for it to be valid.  My lawyer had done this with Company shares when the company was just starting.  The same with IP in software, when we hadn't started selling it yet.  It was still under development.</p>
<p>The tax could apply in some situations - such as for software if the company has claimed the cost of development in their accounts.  But in this case, both companies had the same shareholders.</p>
<p>For a patent, that has not been used yet, the value is whatever someone is prepared to pay for it</p>
<p>I am looking for my contracts, then I can upload relevant pages.  But I found this</p>
<blockquote>


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<p>I am looking for my contracts, then I can upload relevant pages.  But I found this</p>
<blockquote>
<p>In order for a contract to be valid and enforceable, it must meet certain legal criteria. One such criterion is “consideration”. Consideration requires that each party receive a benefit or advantage for fulfilling its obligations under the contract. Generally, except in cases where the consideration is unconscionable, such as when a party abuses a superior bargaining position, the Courts will not enquire into the adequacy of the consideration. This old and trite concept was recently tested by MemoryLink Corp (MemoryLink) in MemoryLink Corp v Motorola Solutions Inc, No. 08 C 3301, 2013 WL 4401676 (ND Ill Aug 15, 2013).</p>


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<p>MemoryLink was a corporation formed by one of the inventors of a handheld camera recording technology that was developed jointly with Motorola Solutions Inc (Motorola). At some point, all of the inventors had signed an assignment agreement that transferred all their rights in the technology to MemoryLink and Motorola. Thus, MemoryLink and Motorola became joint owners. The assignment began with the statement:</p>
<p>“[f]or and in consideration of the sum of One Dollar to us in hand paid, and other good and valuable consideration, the receipt of which is hereby acknowledged . . . .” [Emphasis added]</p>


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<p>“[f]or and in consideration of the sum of One Dollar to us in hand paid, and other good and valuable consideration, the receipt of which is hereby acknowledged . . . .” [Emphasis added]</p>
<p>MemoryLink later sued Motorola for patent infringement relating to the technology, arguing that the assignment was void for lack of consideration. In rejecting the arguments relating to the inadequacy of the consideration and holding the assignment to be valid, the United States District Court for the Northern District of Illinois granted summary judgment in favour of Motorola on August 15, 2013. This decision was affirmed by the United States Court of Appeals on December 5, 2014.</p>
</blockquote>
<p>From <a href="https://www.dww.com/articles/%E2%80%9Cone-dollar%E2%80%9D-sufficient-consideration-for-an-assignment" rel="nofollow noreferrer">Is “One Dollar” Sufficient Consideration For An Assignment?</a></p>


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Answer 2: <h2>The US company is liable for tax at the market value of the thing sold</h2>

<p>This won’t be less than $1 but could be considerably more. The IRS will accept a reasonable valuation of the asset based on reasonable assumptions. Factors involved would include the likelihood of a successful application, the cost of commercialising it and the expected revenue, all assessed on a forward looking basis (i.e. without the benefit of hindsight).</p>


Answer 3: <p>As in many situations like this, the answer to the question can be easily found if another, preliminary question is asked: why?</p>

<p>Assuming that, economically, the fair market value of the transferred asset (whatever it is) is $1,000 and it was transferred for only $1 - there must be some reason why this was done that way, as opposed to a sale for $1,000, which is what you would expect if the transaction was done at arm's length:</p>


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<p>Maybe the transferree is a charity and the the transfer was done for charitable purposes: that's one possible tax treatment.</p>

<p>Maybe the the transferor received stock/equity in the transferre: that's another.</p>

<p>Maybe the transferee is owned by a relative of the transferor and it was done as a gift: yet another.</p>

<p>Or there may have been some other, unstated, reason (repayment of debt?). </p>

<p>So, find out the reason and the tax treatment will suggest itself.</p>


Tags: international, tax-law


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Question Title: Could the act of emailing publicly available information be deemed illegal?

Question Body: <p>Andy and Mary are friends. Andy discovers that Mary is secretly working as an escort. Nobody knows about this activity beyond Andy. He tries to convince her that escorting is harmful and will have a serious impact on her mental well-being in the future. Mary disagrees and asserts that her activities are solely relevant to her private life.</p>
<p>To stop her, Andy decides to send an anonymous email to her family in which he provides a link to the PUBLIC page she is using to promote her escort services.</p>
<p>Does Andy commit any crime in revealing a PUBLIC website to her family? Could this in particular be considered a cyberstalking crime?</p>
<p>I stress that all the information shared by Andy is PUBLIC and visible on the web.</p>


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Answer 1: <p>In the <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a>, those actions would be fully protected by the First Amendment. Andy has a constitutional right to speak freely about essentially whatever he wants -- including Mary's criminal conduct -- unless his speech falls into one of several <a href="https://law.stackexchange.com/questions/56001/in-the-usa-can-treason-be-protected-by-the-first-amendment/56002#56002">narrowly defined categories</a>, none of which would apply in this case. And because Mary has already put this information out on the Internet, it is likely not sufficiently private to support an invasion-of-privacy claim.</p>


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<p>However, the unfortunate reality is that complainants, police, prosecutors, and judges frequently ignore First Amendment protections. Indeed, many states have laws against &quot;cyberstalking&quot; and &quot;telecommunications harassment&quot; that are incredibly broad, and that clearly apply to conduct protected by the First Amendment. For instance, <a href="https://codes.ohio.gov/ohio-revised-code/section-2917.21" rel="nofollow noreferrer">Ohio's telecommunications harassment statute</a> makes it a crime to send an e-mail &quot;with purpose to abuse, threaten, or harass another person.&quot;</p>


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<p>This means that many people who engage in First Amendment-protected speech end up getting prosecuted anyway. If they pay for a good lawyer who knows how to properly raise a First Amendment defense, they may escape any penalties. But because most defendants do not have those resources, and because many lawyers are unaware of the First Amendment implications of such prosecutions, most defendants in such situations likely end up being convicted despite behaving perfectly legally.</p>


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<p>In the <a href="/questions/tagged/united-kingdom" class="post-tag" title="show questions tagged &#39;united-kingdom&#39;" aria-label="show questions tagged &#39;united-kingdom&#39;" rel="tag" aria-labelledby="tag-united-kingdom-tooltip-container">united-kingdom</a>, though, the situation is very different. Even if Mary is breaking the law, and even if Andy limits himself to strictly factual information about what's he's learned about her conduct, he may still be held civilly liable. Mary may also be able to pursue Andy criminally for harassment if his e-mail causes her substantial emotional distress, and civilly for &quot;harassment by publication.&quot; The fact that this information is already public is likely not going to go very far in changing the analysis.</p>


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<p>Andy's best course of action is therefore to play it safe by keeping his mouth shut. Doing so has both legal and nonlegal benefits: He avoids exposure to the hassles of defending himself from criminal charges and he gets some time to examine the resentment, jealousy, paranoia that makes him want to humiliate his &quot;friend.&quot;</p>


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Answer 2: <p><a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a></p>
<p>I cannot see what law could be violated by pointing a third party to publicly available, truthful information about somebody else.</p>
<p>In particular, German criminal law excludes provably truthful statements from the slander definition (<a href="https://www.gesetze-im-internet.de/stgb/__186.html" rel="nofollow noreferrer">§186 StGB</a>). If you prostitute yourself you have to live with how it reflects back on yourself. I would think that even if Mary's escort side gig was not public but Andy discovered it e.g. by simple observation or because he was a customer, emailing that information to a third party would still not be forbidden.</p>


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<p>Back to the &quot;link to webpage&quot; case: A possible exception may be if the linked contents is criminal — hyperlinks to criminal contents e.g. of terrorist organizations can constitute criminal acts themselves (see <a href="https://de.wikipedia.org/wiki/Zul%C3%A4ssigkeit_von_und_Haftung_f%C3%BCr_Hyperlinks" rel="nofollow noreferrer">https://de.wikipedia.org/wiki/Zul%C3%A4ssigkeit_von_und_Haftung_f%C3%BCr_Hyperlinks</a>). I doubt though that this extends to email, which is private communication — and in the concrete example the page linked to is likely not criminal in itself in the first place.</p>


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Question Title: Is an AI model considered a derivative work?

Question Body: <p>Suppose an AI art model was trained exclusively on Mr. X's artwork. Suppose Mr. X managed to prove that the model was only capable of producing derivative works. He would then own the copyright to all the art produced by this model. But would Mr. X also own the AI model?</p>
<p>Now, let's take this question one step further. Suppose an AI art model was trained on art generated by millions of different artists. And suppose these artists managed to prove that the model was only capable of producing derivative works of at least one of these artists. Would the model then become public domain?</p>
<p>Whether AI-generated art is derivative has already been hotly debated, and that is not the point of my question. If the artwork is proven to be derivative, who owns the model?</p>


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Answer 1: <p>There is no provision for automatically relicensing infringing works (for example, distributing a program that contains parts covered by the <a href="https://www.gnu.org/licenses/gpl-3.0.en.html" rel="noreferrer">GNU GPL</a> and that is therefore a derived work will not automatically place the infringing program under GPL, even if that is the expected way for derived works to comply with the license.</p>
<p>Instead, the derived work becomes at the very least undistributable, as there are competing copyright holders that disagree.</p>


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Answer 2: <h2>No one has copyright in the model</h2>
<p>The person who created the code has copyright in the code. The person(s) who provided the training data, assuming it’s something subject to copyright (art is, facts aren’t) owns copyright in the input(s).</p>
<p>As an artefact of a computer algorithm, no one has copyright in the model. Similarly, no one owns copyright in the non-original parts of the output art although it can still be infringing.</p>


Tags: intellectual-property, artificial-intelligence


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Question Title: Why don&#39;t alcoholic beverages have the ingredients list?

Question Body: <p>Most alcoholic beverages (such as beers and wines) don't list the ingredients or nutritional information. Why is this? Is there a special exception for alcoholic beverages?</p>


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Answer 1: <blockquote>
<p>Is there a special exception for alcoholic beverages?</p>
</blockquote>
<p><a href="https://inspection.canada.ca/food-labels/labelling/industry/alcoholic-beverages/eng/1624281662154/1624281662623?chap=0" rel="noreferrer">Yes</a></p>
<blockquote>
<p>Standardized alcoholic beverages (those with compositional standards in Division 2 of the FDR such as beer, wine, rum and bourbon whiskey) are exempt from the requirement to show a list of ingredients on the label [B.01.008(2)(f), FDR].<br />
This also applies to icewine which, in addition to meeting the prescribed standard in Volume 8 of the Canadian Standards of Identity document, also needs to meet the wine standard in Division 2 of the FDR.</p>
</blockquote>
<p>But this only applies to standardized alcohol (as laid out in <a href="https://laws-lois.justice.gc.ca/eng/regulations/C.R.C.,_c._870/page-19.html#h-569708" rel="noreferrer">B.02</a> of the Food and Drugs Regulations)</p>


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<p>They are also exempt from the nutrition facts if they have an alcohol content of more than 0.5% :</p>
<blockquote>
<p>Beverages with an alcohol content of more than 0.5% are usually exempt from carrying a Nutrition Facts table [B.01.401(2)(b)(i), FDR].</p>
</blockquote>
<p>Except in the cases where this doesn't apply (<a href="https://inspection.canada.ca/food-labels/labelling/industry/nutrition-labelling/exemptions/eng/1389198015395/1389198098450?chap=3" rel="noreferrer">Reasons for losing the exemption</a>)</p>


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Question Title: Do “out-of-pocket expenses” typically include someone’s time?

Question Body: <p>The Residential Tenancies Act (2006) of Ontario states the following:</p>
<blockquote>
<p>A landlord may charge a tenant only for the landlord’s reasonable out-of-pocket expenses incurred in giving consent to an assignment to a potential assignee.</p>
</blockquote>
<p>My landlord is charging $150 claiming that this is for “their time.” They were only involved in giving consent to the assignment, not finding the assignee.</p>
<p>What is considered an out-of-pocket expense? I can’t find a definition to that effect in the Act itself. Does the landlord’s time count?</p>


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Answer 1: <h2><a href="https://www.investopedia.com/terms/o/outofpocket.asp#:%7E:text=What%20Does%20Out%2Dof%2DPocket,outlay%20reaches%20the%20insurance%20deductible." rel="nofollow noreferrer">Out of pocket expenses</a> are those that are actually paid in cash or cash equivalents</h2>
<p>If your landlord pays an external lawyer or real estate agent for their time, that is an out of pocket expense. Their own time is not.</p>


Tags: ontario, language, fair-housing-acts


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Question Title: Trading authority and incapacitation

Question Body: <p>Person X gives Person Y the authority to trade person's X brokerage account and to take money out of the account for the benefit of person X. It is not a durable power.</p>
<p>After some time, person Y has good reason to believe that person X is no longer legally competent, in part, because two doctors have expressed that view. However, no court has ruled that person X is no longer legally competent. Has person Y lost his ability to trade for person X?</p>


Answer 1: <blockquote>
<p>Has person Y lost his ability to trade for person X?</p>
</blockquote>
<p>Yes. A power of attorney that is not a durable power is not longer effective when the principal is incapacitated.</p>
<p>If the agent believes that the principal is incapacitated the agent cannot in good faith use the power.</p>
<p>FWIW, non-durable powers of attorney aren't very common.</p>


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Question Title: Can a lease last forever?

Question Body: <p>If two parties agree to a lease on real property, can the lease be binding in perpetuity if it lacks a termination date? Can the lease ever be rescinded because the lessor wishes to terminate the lease?</p>


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Answer 1: <p>A lease agreement can terminate for many reasons. One of them is that the lease specifically states a termination date. Another is that there could be a clause allowing unilateral or bilateral termination, e.g. &quot;the parties may mutually agree to terminate the lease&quot;, or &quot;tenant may terminate the lease by providing 30 days notice&quot;. There can be other statutorily mandated grounds, such as the tenant being shipped out in the military, being harassed by the landlord, the premise being unsafe. If you don't pay rent, or if you run a meth factory (among other activities) the lease can be terminated.</p>


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<p>Certain <a href="https://www.lsd.law/define/perpetual-lease" rel="nofollow noreferrer">perpetual leases</a> may be impossible in some jurisdictions, for example <a href="https://apps.leg.wa.gov/rcw/default.aspx?cite=59.18&amp;full=true#59.18.200" rel="nofollow noreferrer">in Washington</a>, a residential lease without a specific termination period is construed to be a month-to-month lease (it terminates every month, possibly subject to renewal). I don't know of a state that allows perpetual residential leases.</p>


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<p>One might have a commercial perpetual lease, where the tenant can automatically renew the lease at the end of each period (which could be 5 years). If you don't have any stated termination period whatsoever (and the maximum duration of the lease is not statutorily stipulated), the law is &quot;generally skeptical&quot; about such perpetuities, see <a href="https://casetext.com/case/ginsberg-v-gamson-1" rel="nofollow noreferrer">Ginsberg v. Gamson</a> for discussion. However, &quot;courts will enforce a lease provision that grants a tenant the right to unlimited renewals, so long as the parties' intent to create that right is explicit and clear&quot;. A contract will be construed to impose an obligation in perpetuity only when the language unequivocally compels such a construction. If the agreement fails to be crystal clear on the maximum number of renewals allowed, the court may find that, for example, only two renewals are possible (basically, looking at prior case law to see if


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the agreement fails to be crystal clear on the maximum number of renewals allowed, the court may find that, for example, only two renewals are possible (basically, looking at prior case law to see if there is some existing common law rule).</p>


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Question Title: The nature of do not contact requests and crafting one that is irrevocable and permanently keeping away an ex


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Question Body: <p>Firstly, as a premise, what is the legal effect of expressly asking one not to contact them? Does it alter the nature of any future attempts to do so that are not of a legal-procedural nature? Off the cursory top of my head, I cannot think of any decisive way in which it would (such as a trespass warning in the United States would render future visits to a property a criminal offence) other than perhaps changing potential future police attitudes towards each party in future attendances of disputes, or perhaps in a less clear cut way it could render the future contact <em>arguable</em> harassment under the protection from harassment act.</p>
<p>Onto the meat then, of the question… Alice is in an abusive relationship which she has left many times, always regretting previously again returning to it each time and wishing she wouldn’t be so desperate as to have gone back yet once more.</p>


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<p>All of her friends admonish her that the abusive relationship is destroying her and reducing her to sheer ruin over the course of several years.</p>
<p>She begins seeing a therapist who urges her to leave it permanently, but her abusive predator partner always comes back to entice her when she is most desperate.</p>
<p>On one occasion she reports the situation to the police but just knows inside that like so many times before she may succumb again to her desperation.</p>
<p>The two pieces of the solution are discouraging her predatory ex from making future attempts at contact and enticing her to return to him, and obviously, reinforcing her own willpower to resist any temptations that are put forth.</p>


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<p>If she is sufficiently strong willed then simply giving a clear and firm do not contact notice would solve the problem but if she can always be tempted to waive and negate it subsequently to issuing one, then it is useless. When Alice is with her friends, or taking stock of the situation in a more sober setting such as with her therapist or the police, she always vows never to go back, and it is only when she is lonely, isolated and desperate that she succumbs to her ex’s demonic temptations.</p>
<p>If while she is with the police she wishes to issue a notice to her ex never to contact her again (ideally that would have some actual fangs in repercussions for violating it) that is not possible for her to later override under temptation, at least insofar as removing the disincentive/repercussions for her ex to recontact her, what wording or device can she use to achieve this?</p>


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Answer 1: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>Generally, the relief sought in a case like this is a &quot;restraining order&quot; or a &quot;protective order&quot;. One might also pursue a criminal prosecution for stalking in the appropriate circumstances.</p>
<p>Typically, if one can meet the high standard for issuance of such an order, a court issues a temporary order <em>ex parte</em> (i.e. based only upon what you have said and evidence you have provided) and then sets the matter for a hearing at which the person against whom the order is sought can defend themselves in court in a fairly short time period.</p>


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<p>If the judge finds that the high threshold to issue to order is met after considering the evidence at an adversarial evidentiary hearing, then the order becomes permanent or in force for a long period of time.</p>
<p>The circumstances that can justify the issuance of such an order vary from state to state but usually must involve either a clear risk of serious physical harm or extreme harassment short of physical harm.</p>
<p>Generally a court's restraining order or protective order cannot be waived by the protected person without another court order vacating it.</p>


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<p>Generally a court's restraining order or protective order cannot be waived by the protected person without another court order vacating it.</p>
<p>Unlike most court orders, protection orders can usually be enforced directly by law enforcement rather than solely in an after the fact contempt of court proceeding in the court that issued the order originally. This said, even though the law may say that enforcing a protection order is mandatory, in practice, law enforcement discretion means that it is not. <em>See Castle Rock v. Gonzales</em>, <a href="https://supreme.justia.com/cases/federal/us/545/748/" rel="noreferrer">545 U.S. 748</a> (2005).</p>
<p>Also, as a matter of practical reality, law enforcement is often not able to stop someone who is violating a restraining order before it is too later, or because law enforcement is unable to confirm that a cyber stalker really is the person against whom a protection order has been issued.</p>


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<p>The U.S. Supreme Court is <a href="https://www.scotusblog.com/2023/04/justices-hear-true-threat-protected-speech-case/" rel="noreferrer">currently considering a case from Colorado</a> regarding what kind of evidence that someone's communications amount to a &quot;true threat&quot; that is sufficient to justify legal consequences for this kind of contact.</p>
<p>Simply continuing to contact you after you ask them to not contact you is rarely sufficient. But if someone who repeatedly contacts you in a way that you make clear is unwanted this is one factor among many used to consider if the conduct justifies issuance of an order or a criminal prosecution of some kind such as a stalking prosecution.</p>
<p>Repeatedly contacting someone against their wishes can also get someone banned from an online platform outside the court process. Many online platforms have developed filters, blocking, and privacy controls in an attempt to make it harder to engage in this kind of conduct.</p>


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<p>The cycle of behavior of a victim in this case is a common one and it can make it very frustrating for lawyers, law enforcement, and other supportive people to help someone in this situation. I've certainly seen it play out first hand.</p>
<p>In Colorado, the primary statutes are found at Colorado Revised Statutes, Sections <a href="https://www.womenslaw.org/laws/co/statutes/ss-13-14-106-procedure-permanent-civil-protection-orders" rel="noreferrer">13-14-100.2 to 13-14.5-111</a>. Colorado also imposes protection orders on a temporary basis during the divorce proceedings, many kinds of criminal cases, and certain other family law cases. Under the most common kind of case under these statutes, an order may be issued to:</p>
<blockquote>
<p>(I) To prevent assaults and threatened bodily harm;</p>
<p>(II) To prevent domestic abuse;</p>
<p>(III) To prevent emotional abuse of the elderly or of an at-risk
adult;</p>
<p>(IV) To prevent sexual assault or abuse; and</p>


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<p>(II) To prevent domestic abuse;</p>
<p>(III) To prevent emotional abuse of the elderly or of an at-risk
adult;</p>
<p>(IV) To prevent sexual assault or abuse; and</p>
<p>(V) To prevent stalking.</p>
</blockquote>
<p>Some select definitions used include:</p>
<blockquote>
<p>“Abuse of the elderly or of an at-risk adult” means mistreatment of a
person who is sixty years of age or older or who is an at-risk adult
as defined in section 26-3.1-101(1.5), including but not limited to
repeated acts that: (a) Constitute verbal threats or assaults; (b)
Constitute verbal harassment; (c) Result in the inappropriate use or
the threat of inappropriate use of medications; (d) Result in the
inappropriate use of physical or chemical restraints; (e) Result in
the misuse of power or authority granted to a person through a power
of attorney or by a court in a guardianship or conservatorship
proceeding that results in unreasonable confinement or restriction of


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of attorney or by a court in a guardianship or conservatorship
proceeding that results in unreasonable confinement or restriction of
liberty; or (f) Constitute threats or acts of violence against, or the
taking,  transferring, concealing, harming, or disposing of, an animal
owned, possessed, leased, kept, or held by the elderly or at-risk
adult,  which threats or acts are intended to coerce, control, punish,
intimidate, or exact revenge upon the elderly or at-risk adult.</p>
<p>“Domestic abuse” means any act, attempted act, or threatened act of
violence, stalking, harassment, or coercion that is committed by any
person against another person to whom the actor is currently or was
formerly related, or with whom the actor is living or has lived in the
same domicile, or with whom the actor is involved or has been involved
in an intimate relationship. A sexual relationship may be an indicator
of an intimate relationship but is never a necessary condition for


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in an intimate relationship. A sexual relationship may be an indicator
of an intimate relationship but is never a necessary condition for
finding an intimate relationship. For purposes of this subsection (2),
“coercion” includes compelling a person by force, threat of force, or
intimidation to engage in conduct from which the person has the right
or privilege to abstain, or to abstain from conduct in which the
person has a right or privilege to engage. “Domestic abuse” may also
include any act, attempted act, or threatened act of violence against:
(a) The minor children of either of the parties; or (b) An animal
owned, possessed, leased, kept, or held by either of the parties or by
a minor child of either of the parties, which threat, act, or
attempted act is intended to coerce, control, punish, intimidate, or
exact revenge upon either of the parties or a minor child of either of
the parties.</p>
<p>“Sexual assault or abuse” means any act, attempted act, or threatened


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exact revenge upon either of the parties or a minor child of either of
the parties.</p>
<p>“Sexual assault or abuse” means any act, attempted act, or threatened
act of unlawful sexual behavior, as described in section
16-11.7-102(3), C.R.S., by any person against another person
regardless of the relationship between the actor and the
petitioner.</p>
<p>“Stalking” means any act, attempted act, or threatened act of stalking
as described in section 18-3-602, C.R.S.</p>
</blockquote>
<p>The referenced section defines stalking as follows:</p>
<blockquote>
<p>A person commits stalking if directly, or indirectly through another
person, the person knowingly:</p>
<p>(a) Makes a credible threat to another person and, in connection with
the threat, repeatedly follows, approaches, contacts, or places under
surveillance that person, a member of that person's immediate family,
or someone with whom that person has or has had a continuing
relationship; or</p>


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surveillance that person, a member of that person's immediate family,
or someone with whom that person has or has had a continuing
relationship; or</p>
<p>(b) Makes a credible threat to another person and, in connection with
the threat, repeatedly makes any form of communication with that
person, a member of that person's immediate family, or someone with
whom that person has or has had a continuing relationship, regardless
of whether a conversation ensues; or</p>
<p>(c) Repeatedly follows, approaches, contacts, places under
surveillance, or makes any form of communication with another person,
a member of that person's immediate family, or someone with whom that
person has or has had a continuing relationship in a manner that would
cause a reasonable person to suffer serious emotional distress and
does cause that person, a member of that person's immediate family, or
someone with whom that person has or has had a continuing relationship


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does cause that person, a member of that person's immediate family, or
someone with whom that person has or has had a continuing relationship
to suffer serious emotional distress. For purposes of this paragraph
(c), a victim need not show that he or she received professional
treatment or counseling to show that he or she suffered serious
emotional distress.</p>
<p>(2) For the purposes of this part 6:</p>
<p>(a) Conduct &quot;in connection with&quot; a credible threat means acts that
further, advance, promote, or have a continuity of purpose, and may
occur before, during, or after the credible threat.</p>
<p>(b) &quot;Credible threat&quot; means a threat, physical action, or repeated
conduct that would cause a reasonable person to be in fear for the
person's safety or the safety of his or her immediate family or of
someone with whom the person has or has had a continuing relationship.
The threat need not be directly expressed if the totality of the


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someone with whom the person has or has had a continuing relationship.
The threat need not be directly expressed if the totality of the
conduct would cause a reasonable person such fear.</p>
<p>(c) &quot;Immediate family&quot; includes the person's spouse and the person's
parent, grandparent, sibling, or child.</p>
<p>(d) &quot;Repeated&quot; or &quot;repeatedly&quot; means on more than one occasion.</p>
</blockquote>


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Question Title: Does a US company moving its PII and web servers to the EU solve the Meta fine problem?


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Question Body: <p><a href="https://law.stackexchange.com/questions/92634/are-global-user-account-systems-now-illegal-following-facebook-fine">As discussed in this question</a> <a href="https://www.theguardian.com/technology/2023/may/22/facebook-fined-mishandling-user-information-ireland-eu-meta" rel="noreferrer">about the Meta fine</a> it is a problem for companies that host websites with access to EU user registration data in US datacenters.  This is based on the <a href="https://curia.europa.eu/juris/document/document.jsf?text=&amp;docid=228677&amp;pageIndex=0&amp;doclang=en" rel="noreferrer">'Schrems II' decision in 2020 that the EU-U.S. Privacy Shield</a> fails to protect Europeans' rights to data privacy when companies are transferring those data to the U.S.  The details and requirements are discussed by the <a href="https://iapp.org/news/a/the-schrems-ii-decision-eu-us-data-transfers-in-question/" rel="noreferrer">International Association of Privacy Professionals</a>.</p>


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<p>Suppose Alice Inc. was in this situation, in that they are a US company with their websites running on the cloud in US datacenters, let us say in a single docker container with apache and MySQL and their simple site.  They could with a simple purchase of alternative hosting and a few commands deploy their webserver on an EU host.  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.</p>
<p>If they did this, would this satisfy the particular aspect of the GDPR that was covered by the 'Schrems II' decision and the Meta fine?</p>


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Answer 1: <p>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.</p>
<h2>Definition of an international data transfer</h2>
<p>The GDPR unfortunately does not define what an international transfer is, and just explains when they may be lawful:</p>
<blockquote>
<p>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 […]. […]</p>
</blockquote>


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</blockquote>
<p>This has been interpreted, in particular by the official EU SCCs and by <a href="https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-052021-interplay-between-application-article-3_en" rel="nofollow noreferrer">EDPB guidance</a>, to imply two roles: the data exporter, and the data importer. Per those EDPB guidelines, a transfer occurs when three criteria are fulfilled together:</p>
<ol>
<li>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).</li>
<li>The exporter discloses or makes available personal data to the importer.</li>
<li>The importer is in a &quot;third country&quot; (for EU GDPR: anything outside the EU/EEA).</li>
</ol>
<p>Note that these importer/exporter aspects are independent from roles like &quot;controller&quot; or &quot;processor&quot;. It also does not depend on where in the world the exporter is situated.</p>
<h2>Applying this to your scenario</h2>


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<h2>Applying this to your scenario</h2>
<p>How does this apply to your scenario?</p>
<ul>
<li><p>I am assuming Alice Inc is subject to the GDPR (criterion #1). Now, Alice Inc can process personal data, and <strong>that's not an international transfer</strong>, 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.</p>
</li>


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</li>
<li><p>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.</p>
</li>
<li><p>If those data importers are based in the EU/EEA, then criterion #3 is not fulfilled and <strong>there's no international transfer</strong>. For example, using an EU-based hosting providers would sidestep Chapter V of the GDPR completely.</p>
</li>
<li><p>If those data importers are based outside of the EU/EEA, <strong>then criterion #3 is triggered and we have an international transfer</strong>.</p>
</li>
</ul>
<h2>Lawfulness of international data transfers</h2>


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</li>
</ul>
<h2>Lawfulness of international data transfers</h2>
<p>When there is an international transfer, it must be adequately protected. In order of decreasing priority:</p>
<ul>
<li>country has an EU adequacy decision</li>
<li>appropriate safeguards
<ul>
<li>for a group of companies: Binding Corporate Rules (BCRs)</li>
<li>Standard Contractual Clauses (SCCs)</li>
</ul>
</li>
<li>Art 49 specific situations</li>
</ul>
<p>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.</p>


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<p>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.</p>
<p>In the <a href="https://edpb.europa.eu/system/files/2023-05/final_for_issue_ov_transfers_decision_12-05-23.pdf" rel="nofollow noreferrer">DPC Ireland decision against Meta Ireland (PDF)</a>, the DPC finds:</p>
<blockquote>
<p>7.202 In summary, therefore, I am satisfied (and I so find) that:</p>


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<blockquote>
<p>7.202 In summary, therefore, I am satisfied (and I so find) that:</p>
<p>(1) US law does not provide a level of protection that is essentially equivalent to that provided by EU law;<br />
(2) Neither the 2010 SCCs nor the 2021 SCCs can compensate for the inadequate protection provided by US law; and<br />
(3) Meta Ireland does not have in place any supplemental measures which would
compensate for the inadequate protection provided by US law.</p>
<p>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.</p>
</blockquote>
<h2>Implications of using non-US vendors</h2>
<p>As already mentioned, using EU-based data processors avoids the international transfer problem due to the way how international transfers are defined.</p>
<p>Even if an international transfer occurs, that might not be a problem.</p>
<ul>


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<p>Even if an international transfer occurs, that might not be a problem.</p>
<ul>
<li><p>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.</p>
</li>
<li><p>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.</p>
</li>
</ul>
<h2>But isn't that a contradiction?</h2>
<p>You correctly point out a problem with the GDPR's approach to data transfers:</p>
<blockquote>
<p>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.</p>
</blockquote>


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</blockquote>
<p>Yes, this is arguably a loophole.</p>
<p>However:</p>
<ul>
<li><p>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.</p>
</li>
<li><p>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).</p>
</li>


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</li>
<li><p>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.</p>
</li>
</ul>
<h2>This won't help Meta</h2>


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</li>
</ul>
<h2>This won't help Meta</h2>
<p>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.</p>


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Question Title: Is handing out bibles near school property a 1st amendment violation?

Question Body: <p>Context: There was some random guy handing out pocket bibles on the road path leading out of the school a few weeks ago. I don't think they were on school property, but they were close if that is important. They were holding out bibles, but never forced or asked anyone to take it. They did not show up ever again.</p>
<p>The next day, some kids were arguing that the bible guy was indoctrinating us into their religion.</p>
<p>Given that this guy wasn't an employee of the school, wasn't in the school itself, and that the school was public rather than private, would this be a violation of the 1st amendment of the United States? Specifically the part that states that the government should not promote one religion over another.</p>


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Answer 1: <p>The Establishment Clause of the First Amendment to the United States Constitution does not prohibit people with no affiliation with the government from trying to convert people to their religion in a way not endorsed by a government official or agency.</p>
<p>It could be that there is some content neutral prohibition on strangers accosting young school children if that person is so persistent that it amounts to content neutral harassment, or that the person might actually be a sex offender prohibited from contacting children. But, the facts of the question don't seem to compel this conclusion.</p>
<p>Even if it violates any law to do this, it is not a violation of the U.S. Constitution.</p>


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Answer 2: <p><em>&quot;Given that this guy wasn't an employee of the school, and wasn't in the school itself&quot;</em> why would there be a First Amendment violation??</p>
<p>What part of this situation even vaguely looks like &quot;The Government&quot; is promoting religion?</p>
<p>From your description, a private citizen, in a public space (<em>&quot;I don't think they were on school property&quot;</em>) was exercising Free Speech, and was doing so somewhat politely (<em>&quot;never forced or asked anyone to take it.&quot;</em>)</p>
<p>Where is there even a question?  This is <em><strong>obviously</strong></em> protected speech.</p>


Tags: united-states, education, first-amendment, religion, school


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Question Title: Rear ended auto accident

Question Body: <p>A driver in car A is driving down a road and encounters the following that forces a hard brake:</p>
<ol>
<li>A branch or electrical line dropping on the roadway.</li>
<li>A dog running out into the roadway, as per driver A. Disputed by driver B. (Brake check)</li>
<li>A ball rolling into the roadway.</li>
</ol>
<p>A driver in car B following is unable to stop and an accident ensues.</p>
<p>Would all the above scenarios result in driver of car B being found most blamable?
United States, no-fault</p>


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Answer 1: <h2>In a rear-end accident the car at the back is (almost) always at fault</h2>
<p><a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" aria-label="show questions tagged &#39;australia&#39;" rel="tag" aria-labelledby="tag-australia-tooltip-container">australia</a></p>
<blockquote>
<p><strong><a href="https://legislation.nsw.gov.au/view/html/inforce/current/sl-2014-0758#sec.126" rel="nofollow noreferrer">126</a>   Keeping a safe distance behind vehicles</strong></p>
<p>A driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle.</p>
</blockquote>


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<p>A driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle.</p>
</blockquote>
<p>That means, you should always leave enough space between you and the vehicle in front to <a href="https://www.nsw.gov.au/driving-boating-and-transport/roads-safety-and-rules/safe-driving/safe-stopping-distance#:%7E:text=As%20a%20general%20rule%2C%20when,vehicle%20in%20front%20of%20you." rel="nofollow noreferrer">stop safely</a> should they undertake an emergency stop for whatever reason. As a general rule of thumb, the gap needs to be about 3 seconds (about 0.85m per km/h or 4.5 feet per mile/h). At highway speeds this is about 90m or 240 feet - very few people do this but a lot more people should.</p>


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<p>Almost invariably in a nose-to-tail accident, the rear car was not following this rule. There have been a number of cases where a rear driver avoided liability because they could demonstrate that they were following the rule but there were other circumstances that caused the collision. A recent case in Victoria had to do with a poorly designed road layout that meant the rear driver could not see the forward car until the distance was too short to stop. There have also been cases of sun-glare, insects/spiders in the rear car, and a prolonged sneezing fit.</p>


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Answer 2: <blockquote>
<p>Would all the above scenarios result in driver of car B being found most blamable? United States, <strong>no-fault</strong></p>
</blockquote>
<p><a href="https://www.bankrate.com/insurance/car/no-fault-coverage/#what" rel="nofollow noreferrer">In a no-fault auto accident state, who is responsible for the accident is not necessarily checked first.</a> Instead, getting everybody <em>whole</em> again is the first step.</p>
<p>So, first, everybody <strong>has to</strong> file a claim with their own insurance and gets paid up to the limits. Only if the damages exceed the limits, fault actually needs to get assessed. If someone is at fault, and the costs exceed that limit, then there are methods to recoup the costs to the party that had no fault, like suing the party at fault.</p>


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<p>In the case of someone breaking, the one bumping from behind usually has violated multiple statutes, among them keeping a safe distance, driving in a manner that allows them to break safely, or anything that might make him notice too late. So unless the front car did some really weird shit, <strong>usually</strong> the fault will be found with the back car.</p>
<p>However, there's more going on: the insurance will try to prove that one of the insured drivers was negligent, so they don't need to pay for the negligent party. For the bumping from behind, usually, the back car can be found having driven negligently, and actually the claim &quot;he suddenly stopped&quot; can lead to &quot;then you negligently drove too close&quot;.</p>


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Question Title: Legality of an Ohio mariage if the ceremony was outside the state

Question Body: <p>A friend of mine recently told me an interesting detail about her mariage ceremony. She got her mariage licence in Ohio but they had the ceremony just across the border in another state. Neither of them was a resident in Ohio at that time. As far as I understand, non residents need to marry in the county where they received their mariage licence. Using a mariage certificate in another state doesn't seem to be possible in most states.</p>
<ul>
<li>Does this make the mariage void or voidable?</li>
<li>Is it legal now that they've lived together for 8 years?</li>
<li>Is there any criminal liability in supplying this faulty information to the state?</li>
</ul>


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Answer 1: <p>The specific venue requirement is <a href="https://codes.ohio.gov/ohio-revised-code/section-3101.05" rel="nofollow noreferrer">ORC 3101.05</a> which says that</p>
<blockquote>
<p>Each of the persons seeking a marriage license shall personally appear
in the probate court within the county where either resides, or, if
neither is a resident of this state, where the marriage is expected to
be solemnized. If neither party is a resident of this state, the
marriage may be solemnized only in the county where the license is
obtained.</p>
</blockquote>
<p>To possibly make things worse,</p>
<blockquote>
<p>An applicant for a marriage license who knowingly makes a false
statement in an application or affidavit prescribed by this section is
guilty of falsification under section 2921.13 of the Revised Code.</p>
</blockquote>


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statement in an application or affidavit prescribed by this section is
guilty of falsification under section 2921.13 of the Revised Code.</p>
</blockquote>
<p>If they lied on the application regarding the venue, that's a large problem. Otherwise, violating 3101.05 is a minor misdemeanor, which could be a fine up to $150. There is no provision that would invalidate the marriage, other than specified prohibited marriages (not nearer of kin than second cousin, already married).</p>


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Question Title: What range of applications does the concept of “master of an offer” have?

Question Body: <p>Is it an ad hoc creation for or rationalisation of the situation with private lot parking tickets, or does it have any broader applications /currency as a proper abstraction?</p>


Answer 1: <h2>It has two</h2>
<ol>
<li>The offeror can revoke the offer at any time <em>before</em> acceptance</li>
<li>The offeror can stipulate the manner in which acceptance of the offer is to be done. This can relate to time, place, and method of acceptance including if acceptance can be by action and what action that would be.</li>
</ol>


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Answer 2: <p>This is a general contract law principle, not specific to private lot parking tickets. The rule is that &quot;[a]n offer which requires the acceptance to be expressed or communicated in a specified way can generally be accepted only in that way&quot; (<em>Chitty on Contracts</em>, § 4-082). However, if the <em>purpose</em> of the specified mode of acceptance is achieved through another &quot;equally efficacious&quot; method, it may be considered acceptance as well.</p>
<p>Examples:</p>
<ul>
<li><em>Carlill v. Carbolic Smoke Ball Co.</em> (1892), <a href="https://www.bailii.org/ew/cases/EWCA/Civ/1892/1.html" rel="nofollow noreferrer">[1893] 1 Q.B. 256</a>: The offeror made an offer to the world that could be accepted by anyone who performed the terms that constitued acceptance (which was simply buying one of the smoke balls and using the smoke ball as suggested).</li>


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<li><em>Roberts v. Hayward</em> (1828), <a href="https://vlex.co.uk/vid/roberts-v-hayward-802980889" rel="nofollow noreferrer">172 E.R. 489</a>: A tenant accepted an offer of a new tenancy by not vacating the premises; this has been considered acceptance by conduct which was specified by the offeror (<em>Claxton Engineering Services Ltd. v. TXM Olaj-és Gázkutató Kft</em>, [2010] EWHC 2567 at paragraph 52-54).</li>
</ul>
<p>One corollary of this principle is the <a href="https://en.wikipedia.org/wiki/Mirror_image_rule" rel="nofollow noreferrer"><em>mirror image rule</em></a>, but this has been displaced in certain domains such as under the Uniform Commercial Code.</p>


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Question Title: Are &quot;Dry humping&quot; and &quot;Molesting&quot; the same thing?

Question Body: <p>My friend's ex-boyfriend got sentenced to four years in prison for &quot;molesting&quot; his girlfriend who is my friend and his ex-girlfriend only they were together when he &quot;dry humped&quot; her. I don't quite understand it because it's not that I don't believe her I just don't see how any harm was done. She said he was fully clothed and she was fully clothed and he humped her but she said stop and he held her down. But if they are clothed then his penis can't penetrate her. But he claimed she was lying about it after she reported it to the police and went to court and the jury ruled in her favor and the judge sentenced him to four years charge being molestation but how is &quot;dry humping&quot; her molesting her? And this was in Birmingham Alabama.</p>


Answer 1: <p>How is holding her down and dry-humping her <em>not</em> molesting her?  </p>


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Answer 1: <p>How is holding her down and dry-humping her <em>not</em> molesting her?  </p>

<p>"Molesting" doesn't imply that any penetration or rape took place - it's a much broader term covering pretty much any sort of unwanted sexual contact (although more often, but not exclusively, used when a minor is involved).  </p>

<p>The definition for <a href="http://dictionary.law.com/Default.aspx?selected=1274" rel="noreferrer">Molestation</a> in Legal Dictionary at law.com ends with:  </p>

<blockquote>
  <p>any unwanted sexual acts with adults short of rape  </p>
</blockquote>

<p>and holding someone down (unwanted) and dry-humping them (sexual act) seems to fit this.</p>


Answer 2: <p>This seems less like a legal question than a common-sense question. </p>

<p>What would you call it if a guy pinned you down and started humping you to get off? Would you really say there was no harm done?</p>

<p>Wake up. </p>


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<p>What would you call it if a guy pinned you down and started humping you to get off? Would you really say there was no harm done?</p>

<p>Wake up. </p>


Answer 3: <p>Here are 2 links to some crime info about molestation and sexual assault in Alabama <a href="https://www.legalmatch.com/law-library/article/alabama-statutes-of-limitations-for-sexual-abuse.html" rel="nofollow noreferrer">https://www.legalmatch.com/law-library/article/alabama-statutes-of-limitations-for-sexual-abuse.html</a> and <a href="https://www.sexcrimesdefensealabama.com/child-molestation.html" rel="nofollow noreferrer">https://www.sexcrimesdefensealabama.com/child-molestation.html</a> but one is about child molestation I don't know how old she was so I don't know if that law applies to this situation but rather it is called molestation or just sexual assault it is still a crime and they were right to convict him.</p>


Tags: criminal-law, sexual-assault


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Question Body: <p>A contract is executed between two Indiana LLCs which obligates the payor to &quot;pay $100 on the 1st of each month&quot; in exchange for goods/services.  No other terms are given.
Payor mails a check on the first, and Payee contests that if Payor is to pay by check, the check must be enforceable by the 1st (received prior to the 1st).</p>
<p>We're ignoring the options of changing the contract, ACH, and credit cards since this is just a thought experiment to better understand contracts.</p>
<p>When is payment considered &quot;made&quot;?  Does the answer differ if the contract is for goods vs services?</p>
<p><sub>Possibly related:</sub><br>
<sub>– <a href="https://law.stackexchange.com/questions/44915/can-a-landlord-insist-on-late-fee-for-payment-mailed-but-not-recieved">Can a landlord insist on late fee for payment mailed but not recieved</a></sub><br>


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<sub>– <a href="https://iga.in.gov/legislative/laws/2022/ic/titles/026#26-1-3.1-203" rel="nofollow noreferrer">Indiana incorporation of UCC § 3-203(a)</a></sub></p>


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Answer 1: <h2>Payment is “made” when the money (or equivalent) is in the hands of the payee</h2>
<p>For your situation, the payee is right.</p>


Tags: united-states, contract-law, ucc


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Question Title: Am I legally obligated to let a store clerk see my receipt?

Question Body: <p>For as long as I can recall, bulk stores in the area I live (e.g. Costco, BJs, etc.) have checked customers' receipts as they exit the store to verify that all items in their cart are what was purchased.</p>
<p>In recent years, Walmart has substantially eliminated its cashiers in favor of self-checkout lines and started adding someone at the exit to check receipts.</p>
<p>The bulk stores require a membership card to shop there, thus, I could envision a scenario where somewhere in the legalese for that card is a requirement to allow the store to check the receipt. However, I cannot see how there would be such an agreement between myself and Walmart.</p>
<p>For this reason, could I refuse to permit a Walmart employee at the door to inspect my receipt? Or is there some sort of implied consent to search that I'm unaware of?</p>


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Answer 1: <p>The 4th amendment protection against unreasonable searches is irrelevant, since it only relates to governmental searches. There may be &quot;shopkeeper privilege&quot; laws in your state that enable a detention. Ordinarily, you cannot be arrested by a person – that would be assault and false arrest. However, a state can enact an exception, such as Washington's <a href="https://app.leg.wa.gov/rcw/default.aspx?cite=4.24.220" rel="nofollow noreferrer">RCW 4.24.220</a>, which says</p>
<blockquote>
<p>In any civil action brought by reason of any person having been
detained on or in the immediate vicinity of the premises of a
mercantile establishment for the purpose of investigation or
questioning as to the ownership of any merchandise, it shall be a
defense of such action that the person was detained in a reasonable
manner and for not more than a reasonable time to permit such
investigation or questioning by a peace officer or by the owner of the


