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South Korea: Coffee Banned in Schools

(Mar. 23, 2018) On March 13, 2018, an amendment to the Special Act on Safety Management of Children’s Dietary Lifestyle was promulgated by the President of South Korea. (Special Act on Safety Management of Children’s Dietary Lifestyle, Act No. 14263, May 29, 2016, National Law Information Center website (in Korean), amended by Act No. 15485, Mar. 13, 2018, Ministry of the Interior and Safety website (in Korean).) The amended Act will come into effect on September 14, 2018. (Act No. 15485 add.)

The amendment seeks to promote children’s health by preventing them from consuming caffeine, which, according to the sponsors of the bill, is likely to cause undesirable effects on their development. (Proposal of the Amendment to the Special Act on Safety Management of Children’s Dietary Lifestyle (text of bill proposed by Sanghee Kim and 12 other members of the National Assembly) (Feb. 15, 2017), Ministry of Government Legislation website (in Korean).) In particular, the amendment was proposed to stop middle and high school students from consuming coffee to enhance their academic performance by relying on the stimulating effect of the caffeine contained in coffee. (Id.)

Under the Act, the Minister of Food and Drug Safety may restrict or prohibit the sale of high-calorie, low-nutrient, or caffeinated foods in schools. (Children’s Dietary Lifestyle Special Act, new art. 8, para. 2.) Whereas the sale of other foods containing caffeine, such as energy drinks or coffee milk, is currently prohibited in schools by the Minister, coffee has still been available for purchase. (Proposal of the Amendment to the Special Act on Safety Management of Children’s Dietary Lifestyle.) The amendment specifically prohibits coffee itself.

Prepared by Law Library intern Jieun Chang, under the supervision of Sayuri Umeda, Foreign Law Specialist.

Topic: Children, Elementary and secondary education, Health

Jurisdiction: South Korea

Author: Sayuri Umeda

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South Korea: People Who Report Unleashed Dogs to Be Rewarded

(Mar. 23, 2018) Facing a significant rise in the number of dog-attack incidents in South Korea, the National Assembly recently amended the Animal Protection Act (Act No. 4379, May 31, 1991, Korean Legislation Research Institute [KLRI] website)—first in March 2017 (Act No. 14651, Mar. 21, 2017, in Korean, Ministry of the Interior and Safety [MOIS] website) and again in March 2018 (Act No. 15502, Mar. 20, 2018, in Korean, MOIS website).  The 2017 amendment came into force on March 22, 2018.  The 2018 amendment will come into force on March 21, 2019.

2017 Amendment

The Animal Protection Act requires the owner of a dog raised for human companionship to

  • register the dog with the heads of local governments (Animal Protection Act art. 12, para. 1);
  • put an identification tag on the dog that includes the owner’s name and phone number and the dog’s registration number when the dog goes outside (id. art. 13, para. 1); and
  • take safety measures such as leashing the dog in public areas (id. art. 13, para. 2).

In addition, if a dog belongs to the dangerous breeds (“ferocious dogs”) that are listed in the Enforcement Rule of the Animal Protection Act, the owner must put on a muzzle on the dog for other people’s safety. (Ministry of Agriculture, Enforcement Rule of the Animal Protection Act, Food and Rural Affairs Ordinance No. 261, Feb. 21, 2012, amended by Ordinance No. 275, July 3, 2017, art. 12 & Table 3.)

The amended Act, intending to strengthen the enforcement of these provisions, rewards people who report the owner of an animal who has not followed the requirements above. Such reporters may receive monetary rewards from local governments. (Animal Protection Act art. 41-2.) The amount of the reward is up to 20% of the fine issued for the reported violation. (Enforcement Decree of the Animal Protection Act, Presidential Decree No. 23613, Feb. 3, 2012, amended by Presidential Decree No. 28709, Mar. 20, 2018, art. 15-2.) The maximum amount of an administrative fine for a violation of articles 12 and 13 of the Animal Protection Act is 600,000 won (about US$560). (Id. art. 20 & attached Table; Animal Protection Act art. 47.)

According to the Korea Customer Association, there were 245 dog-attack incidents in 2011. Between 2012 and 2014, the number of attacks increased from 560 to 676 and, since 2015, has exceeded 1000. (Jaebum Yoo, Safety Management Measure for Pet Dogs: Main Issues and Future Tasks (Mar. 2, 2018) (click pdf icon), National Assembly Research Service website (in Korean).)

2018 Amendment

The 2018 amendment requires the owner of a ferocious dog to prevent its escape and follow regulations of the Enforcement Rule to keep other people safe. (Animal Protection Act new art. 13-2.) In addition, the owner is prohibited from bringing a ferocious dog to preschools; daycare centers; and elementary, middle, and high schools. (Id. new art. 13-3.) If a dog owner violates these safety measures and his or her dog injures another person, the owner may be punished with imprisonment for not more than two years or a fine of up to 200 million won (about US$19,000). (Id. new art. 46, para. 2.) If such a dog attack results in the death of another person, the owner of the dog is punishable with imprisonment for not more than three years or a fine of up to 300 million won (about US$280,000). (Id. new art. 46, para. 1.)

Prepared by Sayuri Umeda, Foreign Law Specialist, with the assistance of Law Library intern Jieun Chang.

Topic: Animals, Legislative bodies, Public health

Jurisdiction: South Korea

Author: Sayuri Umeda

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Germany: Court Rules Google Has No Duty to Check Websites for Defamatory Content Before Displaying Search Results

(Mar. 19, 2018) On February 27, 2018, the German Federal Court of Justice (Bundesgerichtshof, BGH) ruled that Google is not obligated to prescreen websites for defamatory content before displaying links to them in its search results. (BGH, Feb. 27, 2018, Docket No. VI ZR 489/16, BGH website (not yet published); Press Release No. 39/2018, BGH, Bundesgerichtshof zur Prüfungspflicht des Betreibers einer Internet-Suchmaschine (www.google.de) bei Persönlichkeitsrechtsverletzungen (in German) [BGH on the Review Obligation of an Internet Search Engine Provider (www.google.de) in Cases of Personality Right Infringements].)

Facts of the Case

The plaintiffs, a married couple who provide IT services, brought an action before the Regional Court of Cologne seeking to stop Google from displaying links to websites on which the plaintiffs were allegedly defamed by other internet users. (Press release, supra.)

In 2011, the husband was involved in an undetermined capacity in setting up an internet forum, whose members soon afterwards started quarreling on forum pages with members of a different internet forum. The latter accused the members of the internet forum that the husband was involved in of stalking and harassing third persons. In the context of helping to establish the internet forum’s website, the plaintiff set up email forwarding to his email address. Due to the enabled email forwarding, third persons were able to determine the IP address and the actual identity of the plaintiffs and passed on the information to members of the rival internet forum. Members of the latter internet forum then verbally attacked the plaintiffs on forum pages. They posted comments saying that the husband operated the internet forum and that he was therefore responsible for the stalking of third persons committed by the members of the forum. The wife was accused of knowing about her husband’s role in this forum. (Id.)

The plaintiffs contacted Google and submitted an affidavit regarding the husband’s connection to the internet forum. They demanded that Google refrain from displaying links to the websites concerned in search results. Google deleted some links but not all of them. It stated that the plaintiffs had identified the corresponding infringements only in general terms. (Landgericht Köln [Regional Court of Cologne], Aug. 16, 2015, Docket No. 28 O 14/14, (in German) (Juris database, by subscription).)

The plaintiffs claimed that Google was responsible for the continuous violation of their personality rights. Personality rights are a bundle of rights designed to ensure the development and respect of a person’s personality, including the protection of personal honor. Apart from seeking that Google stop displaying specific websites, the plaintiffs further requested Google to set up search filters to prevent websites with similar defamatory content from appearing in future search results, information about the third persons who posted new offending comments, and payment of compensation. (Press Release, supra.)

While the court of first instance had essentially ruled in favor of the plaintiffs, the Higher Regional Court of Cologne dismissed the action in its entirety. The plaintiffs appealed the ruling of the second instance to the BGH. (Id.)

Decision

The BGH upheld the ruling of the Higher Regional Court of Cologne. The Court held that the website content at issue, to which Google provides links in its search results, does not originate from Google, but from third persons. The BGH also stated that Google does not make the content at issue its own by displaying links to the websites in the search results. Google merely searches all available sites on the internet by means of computer programs in order to automatically generate search results. (Id.)

By displaying the links to the websites, Google, in principle, can be held liable if it contributes willingly and causally to the infringement of personality rights, according to the BGH. The Court stated, however, that such a liability of a search engine provider assumes that it does not meet inspection obligations. The BGH explained that search engine providers cannot be expected to ensure that all websites which appear in the search results do not contain any violations of the law. Instituting such a general obligation to inspect all contents found by the search programs would seriously call into question the business model of search engine operators, which is approved by the lawmakers and desired by society. Without the availability of search engines, it would be impossible for individuals to get meaningful use out of the internet due to the unmanageable flood of information it provides. The BGH concluded that a search engine operator need only take action if it is notified of obvious and clearly discernible rights infringements by the party affected. (Id.)

The BGH held that this was not the situation in the present case. The Court took the view that the verbal attacks asserted by the plaintiffs affected their reputation, but were within the context of the husband’s connection with the internet forum concerned, whereby the husband’s exact role could not be clarified in the legal proceedings. The BGH explained that the plaintiffs were not able to show corroborating evidence that the accusations were unfounded. Thus, Google, on the basis of the vague information given by the plaintiffs, could not have been expected to recognize the rights infringements. (Id.)

Prepared by Catharina Schmidt, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist.

Topic: Information technology, Internet, Judicial review and appeals, Right of privacy, Telecommunications

Jurisdiction: Germany

Author: Jenny Gesley

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Germany: Proposed Amendment to the Criminal Code Concerning Advertising Services for Abortion

(Mar. 19, 2018) On February 22, 2018, the German Bundestag (Parliament) debated draft acts introduced by three parliamentary groups concerning a provision in the Criminal Code that penalizes advertising services for abortion. The amendments would either abolish the provision or restrict its scope to cover only grossly offensive advertising. (Gesetzentwurf der Fraktion BÜNDNIS 90/DIE GRÜNEN, Entwurf eines Gesetzes zur Änderung des Strafgesetzbuches – Aufhebung von § 219a StGB [Draft Act of the Parliamentary Group ALLIANCE 90/THE GREENS, Draft Act to Abolish Section 219a of the Criminal Code], DEUTSCHER BUNDESTAG: DRUCKSACHEN UND PROTOKOLLE [BT-Drs.] 19/630 (Feb. 2, 2018); Gesetzentwurf der Fraktion FDP, Entwurf eines Gesetzes zur Änderung des Strafgesetzbuches – Einschränkung des Verbots der Werbung für Schwangerschaftsabbrüche [Draft Act of the Parliamentary Group FDP, Draft Act to Restrict the Prohibition of Advertising Services for Abortion], BT-Drs. 19/820 (Feb. 20, 2018); Gesetzentwurf der Fraktion DIE LINKE, Entwurf eines Gesetzes zur Änderung des Strafgesetzbuches – Aufhebung des Werbeverbots für Schwangerschaftsabbrüche [Draft Act of the Parliamentary Group THE LEFT, Draft Act to Abolish the Prohibition of Advertising Services for Abortion], BT-Drs. 19/93 (Nov. 22, 2017).)

Background

In Germany, the Criminal Code initially states in section 218 that abortion is generally prohibited and penalized, both for the person terminating the pregnancy and the pregnant woman. (STRAFGESETZBUCH [StGB] [CRIMINAL CODE] (Nov. 13, 1998), BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 3618, as amended, German Laws Online website.) Section 218a provides, however, that a termination of pregnancy is not illegal in certain circumstances, in particular when the woman has obtained counseling at least three days before the operation, the termination of the pregnancy is performed by a doctor, and not more than twelve weeks have elapsed since conception (id. § 218a ¶ 1.), and in certain other circumstances (id. § 218a ¶¶ 2-4.).

Section 219a of the Criminal Code prohibits offering, announcing, or promoting one’s own abortion services or the services of a third person or disseminating declarations of such a nature in public, in a meeting, or as written material. Perpetrators are punishable by imprisonment for a term not exceeding two years or a fine.

On November 14, 2017, the district court in Gießen (Amtsgericht (AG)) in the German state of Hesse fined a doctor because she provided information on available services and the process of abortion on her website. (AG Gießen, Docket No. 507 Ds 501 Js 15031/15, Nov. 14, 2017, Juris database (by subscription); Pia Lorenz, Schwangerschaftsabbruch angeboten – AG Gießen verurteilt Ärztin zu 6.000 Euro Geldstrafe [Termination of Pregnancy Offered – AG Gießen Sentences Woman to a Fine of €6,000 [about US$7,407]], LTO, Nov. 24, 2017.)

Proposed Amendments

As a reaction to the decision of the judge in Gießen, three parliamentary groups introduced amendments to the Criminal Code concerning section 219a of the Criminal Code. The parliamentary group The Left aims to abolish the prohibition of advertising services for abortion altogether, whereas the Free Democratic Party (FDP) wants to restrict only the scope of section 219a of the Criminal Code. The parliamentary group Alliance 90/The Greens considers it important that doctors be able to provide objective information and thus wants to abolish section 219a of the Criminal Code. They suggest that advertising services for abortion should still be prohibited, however not in the Criminal Code, but rather in the Professional Code of Conduct for Physicians or in the Act on Advertising in the Field of Health. (Press Release, Kontroverse um Werbeverbot für Schwangerschaftsabbruch [Controversy over Prohibition of Advertising Services for Abortion] (Feb. 22, 2018), Bundestag website; (Model) Professional Code for Physicians in Germany [MBO-Ä 1997], 2011, as amended by the 118th German Medical Assembly 2015 in Frankfurt am Main; Heilmittelwerbegesetz [HWG] [Act on Advertising in the Field of Health], Oct. 19, 1994, BGBl. I at 3068, as amended.)

Reactions

Ulle Schauws, a member of the parliamentary group Alliance 90/The Greens, pointed out that in a society where providing objective information on abortions is penalized, it is even harder for doctors to decide to perform abortions. Moreover, people are openly hostile toward doctors who perform these services. She called for a strong political message. (Press Release, § 219a StGB: “Es braucht einen Paradigmenwechsel,” Ulle Schauws (Bündnis 90/Die Grünen) im Interview mit der Wochenzeitung “Das Parlament” [Section 219a Criminal Code: “There Is Need for a Paradigm Shift,” Ulle Schauws (Alliance 90/The Greens) in an Interview with the Weekly Newspaper “The Parliament”] (Feb. 22, 2018), Bundestag website.)

During the Bundestag debate on February 22, 2018, opposition to the draft amendments was voiced by Stephan Harbarth, a member of the parliamentary group Christian Democratic Union/Christian Social Union (CDU/CSU). He stated that the interests of not only the doctors and women concerned but also the unborn child must be taken into account. (Deutscher Bundestag [German Parliament], Plenarprotokoll 19/14 [Plenary Protocol 19/14], Feb. 22, 2018, at 1221, 1223, Bundestag website.)

Following the debate, the vice president of the Bundestag referred the drafts for further deliberation to the Bundestag Committee for Legal Affairs and Consumer Protection. (Press Release, Kontroverse um Werbeverbot für Schwangerschaftsabbruch, supra.)

Prepared by Felicia Stephan, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist.

Topic: Abortion, Criminal code, Medical personnel, Pregnancy

Jurisdiction: Germany

Author: Jenny Gesley

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Bahrain: Amendments to Bribery Provisions in the Penal Code

(Mar. 19, 2018) On January 25, 2018, Bahrain issued Law No. 3, which amended a number of provisions of the Penal Code No. 15 of 1976. (Law No. 3 of 2018, Amending Some Provisions of the Penal Code Issued by Decree Law No. 15 of 1976, Official Gazette, No. 3350, Jan. 25, 2018, pp. 6–7, Government of Bahrain’s Legislation and Legal Opinion Commission website (in Arabic).)

The new articles increase the penalties for bribery, extend the elements of the crime to cover bribery offered to employees and public officials of foreign countries regarding “international projects” (amal douali), and appear to widen the jurisdiction of Bahraini courts to crimes committed outside Bahrain in order to strengthen the fight against corruption in the country.

The new articles are as follows:

Article 186, first paragraph:

Any employee or anyone entrusted with a public service who asks for or accepts for himself or others, directly or indirectly, a gift or benefit of any kind, or a promise of obtaining the same, in exchange for performing or not performing an act in the course of discharging his duties, is punishable by not less than five years’ imprisonment.

Article 188:

Any employee or officer entrusted with a public service who asks for or accepts for himself or others, directly or indirectly, a gift or benefit of any kind, upon completing or failing to complete an act in the course of discharging his duties is punishable with imprisonment.

If the performance or omission of such an act is rightfully [within the purview of his duties], the punishment shall be detention for a period of not less than one year.

[“Imprisonment [sajn] is defined as incarceration in a prison dedicated to this purpose for a period of not less than three and not more than fifteen years unless the law provides otherwise.”  (PENAL CODE No. 15 of 1976, art. 52, Legislation and Legal Opinion Commission website.) “Detention [habs] is defined as incarceration in a prison dedicated to this purpose for a period of not less than ten days and not more than three years.” (Id. art. 54.)]

Article 189:

Any public employee or officer entrusted with a public service who asks for or accepts for himself or others, directly or indirectly, a gift or benefit of any kind, or a promise of obtaining the same, in exchange for performing or not performing an act not within the duties of his office, but he so claimed or wrongfully believed [those duties] to be [within the duties of his office], shall be punished with detention.

Article 190:

Anyone who offers to a public employee or to an officer entrusted with a public service – without his offer being accepted – a gift or benefit of any kind, or a promise of obtaining the same, in exchange for performing or not performing an act in violation of the duties of his office shall be punished with detention for a period not less than one year.

If the performance or omission of such an act is rightfully [within the purview of his duties], the punishment shall be detention for a period not to exceed one year.

Article 190 bis:

Anyone who offers to a public employee or to an officer entrusted with a public service in a foreign country or gives him, directly or indirectly, a gift or benefit of any kind or promises to give the same to him or to a third person, in order to obtain a commercial project or maintain the same or for the sake of any other benefit relating to initiating an international project in exchange for having the public employee or the officer entrusted with a public service perform or abstain from performing an act in the course of the discharge of his duties shall be punished with detention for a period of not less than one year.

Article 191:

In all cases mentioned in the preceding articles, the offender shall pay a fine equal to what has been demanded, accepted, promised, or offered provided it will not be less than five hundred dinars [about US$1,322].

Topic: Bribery, Criminal code, International organizations

Jurisdiction: Bahrain

Author: Issam Saliba

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