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Legal news from Tuesday, January 4, 2011 |
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Hungary defends controversial media law in face of EU criticism
Jaclyn Belczyk on January 4, 2011 2:20 PM ET

[JURIST] The Hungarian government on Tuesday continued to defend its controversial new media law in the face of criticism from the EU. The new law, which entered into force this week, creates the National Media and Communications Authority (NMHH) [official website, in Hungarian], which controls private television and radio broadcasters, newspapers and online news sites. Under the new law, the government can fine broadcasters more than 700,000 euros and newspapers and news websites roughly 90,000 euros if their coverage is deemed unbalanced or immoral by the media authority, whose members are all loyal to the ruling Fidesz party [party website, in Hungarian]. The new law has been harshly criticized [Daily Mail report] by members of the media, as well as other European governments, as too restrictive of free expression, and the European Commission has requested more information on the law to determine whether it complies with EU law. The Hungarian government, which assumed the EU presidency on January 1, has nevertheless continued to defend the law, with Zoltan Kovacs, state secretary for communication, telling national radio Tuesday that it is unnecessary to change the law [ANP/AFP report].
The Hungarian Parliament [official website, in Hungarian] approved the law [Reuters report] in December, amid protests and criticism. In 2008, the Constitutional Court of Hungary [official website] struck down [JURIST report] two proposals passed by the country's parliament to criminalize hate speech as unconstitutional infringements on the freedom of expression. The court held that the extremist speech that the amendments sought to prevent was not a danger to society because it was already marginalized. The first bill would have allowed recovery in cases where a person's ethnic group, rather than the individual person, was insulted. The second bill would have designated national, ethnic, racial or religious insults as misdemeanors punishable by up to two years in prison.


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California high court rules no warrant needed to search cell phone text messages
Zach Zagger on January 4, 2011 12:19 PM ET

[JURIST] The Supreme Court of California [official website] ruled [opinion, PDF] Monday that law enforcement officers can legally search text messages on a suspect's cell phone without a warrant incident to a lawful custodial arrest. The court held 5-2 that a search of the defendant's cell phone text messages in the police station 90 minutes after the arrest did not violate the Fourth Amendment [text] prohibition against unreasonable search and seizure without exigent circumstances. The majority based its decision on the 1970s Supreme Court cases United States v. Edwards and United States v. Robinson [opinions], which held, respectively, that warrantless searches incident to arrest were valid of a suspect's clothes for paint chips and a cigarette packet taken from the suspect's person. The court distinguished the case from from United States v. Chadwick [opinion text], which held that luggage could not be searched incident to arrest without exigent circumstances. The court held that a cell phone is more similar to the cigarette packet obtained from the suspect in Robinson or clothes searched in Edwards than the luggage in Chadwick because a cell phone is "immediately associated with [the defendant's] person." The defendant had argued that cell phones are not like the cigarette pack in Edwards because they are often not carried directly on the person but in a bag or within the person's reach and that cell phones are unlike any other personal item because they store such a wealth of personal information and data. The dissent, written by Justice Kathryn Mickle Werdegar, argued that modern cell phones are unprecedented information storage devices requiring that the balance between privacy interests and public safety interests "must be newly evaluated."
The California decision represents a split from a 2009 decision [JURST report] by the Ohio Supreme Court [official website] holding that police must obtain a warrant before searching data stored on a cell phone. The US Supreme Court [official website] denied certiorari on that case but the split may force it to rule on the issue [San Francisco Chronicle report]. In June, the US Supreme Court ruled [opinion, PDF; JURIST report] unanimously in City of Ontario v. Quon [Cornell LII backgrounder] that an employer's search of private text messages on a work-issued device does not violate the Fourth Amendment if the search is motivated by a legitimate work-related purpose and is not excessive in scope.


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Pakistan governor opposing blasphemy law assassinated
Jaclyn Belczyk on January 4, 2011 11:41 AM ET

[JURIST] The governor of Pakistan's Punjab province, Salman Taseer, was shot and killed Tuesday by one of his own security guards, apparently because of his opposition to Pakistan's blasphemy law [text; JURIST news archive]. Taseer, a senior member of the Pakistan People's Party (PPP) [official website], was shot while getting into his car at Islamabad's Kohsar Market and died later at a hospital. Interior Minister Rehman Malik said the guard immediately surrendered to police and confessed to shooting Taseer because he had spoken against the blasphemy law. Controversy surrounding Pakistan's blasphemy law has recently been reignited over the case of Asia Bibi, a Christian woman sentenced to death for insulting the Prophet Muhammad [JURIST news archive] during an argument with other women in her village last year. Tasseer had spoken in Bibi's defense. This is the most high-profile assassination in Pakistan since the 2007 assassination of former prime minister and PPP leader Benazir Bhutto [BBC obituary; JURIST news archive].
The blasphemy laws were introduced in 1986 as a way of protecting Muslim beliefs from insults. In response to repeated calls for repeal, Pakistani Federal Minister for Minority Affairs Shahbaz Bhatti [official profile] has said the laws may be amended to prevent misuse, but they will not be repealed. Advocacy groups such as Human Rights Watch [JURIST report], as well as LHC advocate Saroop Ijaz [JURIST op-ed] have called for the laws to be repealed. In February, Bhatti told the Agence France-Presse that he has been speaking to various political parties [JURIST report] in Pakistan and that his government is committed to doing away with laws [AFP report] that are discriminatory to minorities. Bhatti made the comments at an interview with the AFP in Washington, DC, where he met with various lawmakers and officials during the National Prayer Breakfast. Bhatti discussed a proposed change in the law that would force judges to investigate blasphemy cases before they are docketed.


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Afghanistan high court to investigate election complaints in time to seat government
Zach Zagger on January 4, 2011 11:02 AM ET

[JURIST] Afghanistan's five-judge panel set up last week to investigate election complaints said Monday that it will issue rulings in time for President Hamid Karzai [BBC profile, JURIST news archive] to seat the parliament as scheduled on January 20. Karzai has promised to have the parliament seated [NYT report] on time amid controversy surrounding the results of last September's parliamentary elections [IEC backgrounder]. However, the Independent Election Commission (IEC) [official website] claims that the panel does not have legal authority to question the results that it certifies. It claims that the law says it has the final say in determining the elections results and that the Supreme Court is setting a dangerous precedent by ruling outside its mandate. Controversy surrounds the ethnic representation of the parliament as a result of the elections. The Pashtuns, of which Karzai is a member, make up over half the country's population but only won 94 out of 249 seats. The winning candidates and some critics from the West argue [WSJ report] that the panel is meant to bolster Karzai's support in government, but his office has denied such accusations saying that the panel is independent. The panel is facing more than 400 cases of alleged fraud to investigate over the next two weeks.
Last week Karzai approved the Supreme Court's plan to review the last September's parliamentary elections which were marred by irregularities and accusations of fraud. In November, the Afghanistan Electoral Complaints Commission (ECC) [official website] disqualified 21 candidates [JURST report] for electoral fraud after finding widespread voting irregularities in 12 provinces. Of the disqualified candidates, 19 had either won or were leading in their districts, seven of which were incumbents, and two were second place finishers in districts where the first place finisher was also disqualified. In October, the IEC invalidated 1.3 million votes [JURIST report], nearly a quarter of the 5.6 million votes cast nationwide, due to findings of fraud. The IEC found that the 2,543 polling stations where the votes had been cast did not follow IEC procedures. The 2009 presidential election [JURIST news archive] of Karzai was also marred by fraud allegations.


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