Public Law

The medical and technological advancements of the last century have improved man's health and mortality rate considerably. Along with these advancements, however, have come new challenges and legal questions. An increase in ageing societies, the artificial prolongation of life, and the status of advance refusals of further life-sustaining treatment, or even advance requests for euthanasia, are just some of the challenges that face lawyers, policy-makers, medical personnel and patients alike. This volume, edited by Negri, attempts to address these difficult issues and is the result of an international research project on Bioethics and International Law at the Intersection of Life, Death and Dignity of the Observatory on Human Rights: Bioethics, Health, Environment, which consists of a network of academics promoting international cooperation between the faculty of law of the University of Salerno and other academic institutions (xi). The volume consolidates contributions of variou...

One of the main goals of the Constitution of the Republic of South Africa, 1996 is to bring about transformation within South African society. The new Constitution recognised no less than eleven languages as official languages, including various previously neglected indigenous languages. Where only two languages were previously recognised as official languages under the apartheid regime, this was replaced with a range of languages. However, South African government bodies do not always follow the Constitution’s language obligations; public higher education institutions have nearly all eliminated tuition in languages other than English; and legislation is rarely (if ever) issued in other official languages. The present paper shows how the recognition and use of languages in South Africa differs significantly in theory and in practice. The paper highlights this disparity by first laying out South Africa’s constitutional and legislative framework for official language recognition and u...

Abstract: The investigation of cybercrime committed across national borders can only be
effectively addressed if law enforcement authorities may gather electronic evidence with specific
reference to cross-border stored evidence. The legal question arises as to whether a country’s
law enforcement agency has extra-territorial remote and unilateral powers to access evidence
stored in the cloud in another country or whether law enforcement authorities must use preestablished
formal channels of cooperation, such as Mutual Legal Assistance Treaties (MLATs).
The legal question and issues arising from cross-border law enforcements’ gathering of
electronic evidence have far-reaching legal implications and, therefore, necessitate clarification
on national and international levels.
Keywords: Law Enforcement, Cross-border Stored Electronic Evidence, International law, Data
Localisation Laws, Mutual Legal Assistance Treaties
Introduction

Internet regulation has evolved from self-regulation to the criminalization of conduct to state control of information available, accessed and submitted. Criticism has been leveled at the different forms of state control and the methods employed to enforce state control. After the terrorist attack on the USA on 11 September 2001, governments justify Internet state control as a law enforcement and national security tool against the abuse and misuse of the Internet for the commission of serious crimes, such as phishing, child pornography; terrorism and copyright infringement. Some Internet users and civil rights groups perceive state control as an abomination which results in an unjustifiable infringement of civil rights. Since countries worldwide are focusing attention on the control of information on the Internet, the debate in respect of state control and the consequences of state control is relevant on a global level as it impacts on all Internet-connected countries.

Internet regulation has evolved from self-regulation to the criminalization of conduct to state control of information available, accessed and submitted. Criticism has been leveled at the different forms of state control and the methods employed to enforce state control. After the terrorist attack on the USA on 11 September 2001, governments justify Internet state control as a law enforcement and national security tool against the abuse and misuse of the Internet for the commission of serious crimes, such as phishing, child pornography; terrorism and copyright infringement. Some Internet users and civil rights groups perceive state control as an abomination which results in an unjustifiable infringement of civil rights. Since countries worldwide are focusing attention on the control of information on the Internet, the debate in respect of state control and the consequences of state control is relevant on a global level as it impacts on all Internet-connected countries.

Internet regulation has evolved from self-regulation to the criminalization of conduct to state control of information available, accessed and submitted. Criticism has been leveled at the different forms of state control and the methods employed to enforce state control. After the terrorist attack on the USA on 11 September 2001, governments justify Internet state control as a law enforcement and national security tool against the abuse and misuse of the Internet for the commission of serious crimes, such as phishing, child pornography; terrorism and copyright infringement. Some Internet users and civil rights groups perceive state control as an abomination which results in an unjustifiable infringement of civil rights. Since countries worldwide are focusing attention on the control of information on the Internet, the debate in respect of state control and the consequences of state control is relevant on a global level as it impacts on all Internet-connected countries.

This contribution focuses on the modalities of mutual legal assistance and extradition from a South African perspective. The question is posed whether South Africa has succeeded to establish the required framework as a fully fledged member of the international community to make a positive contribution in the fields of mutual legal assistance and extradition subsequent to its international political isolation during the apartheid era. Although the international community derives substantial benefit from a borderless global world, it has as a result also to deal with the negative impact of globalization on international crime. Physical and/or electronic crimes are increasingly committed across borders and may be described as borderless, but law enforcement (combating, investigation and prosecution of crime) is still very much confined to the borders of a state. Criminal networks have taken advantage of the opportunities resulting from the dramatic changes in world politics, business, ...

Law enforcement is an information-based activity. The use of drones (also referred to as unmanned aerial vehicles or UAVs) for policing may be beneficial as an aerial surveillance tool in gathering information pertaining to crime prevention, detection and /or investigation which are conducted in the interest of national security. In most instances, the law enforcement use of drones for purposes of search and rescue, crime scene investigation and hostage situations are not controversial. However, police use of drones for crowd monitoring and protests may be contentious as it may violate various human rights such as the right to privacy which includes data protection, free speech, right to protest and freedom of movement. These rights must be balanced against public safety. The discussion focuses on identifying ethical and legal concerns relating to the use of drones by the police and how these concerns should be addressed. It highlights that the danger is not the drone technology its...

The discussion focuses primarily on the manner in which the distribution of social media content needs to be governed in ensuring illegal and harmful content is limited (e.g. not accessible to children) whilst ensuring freedom of expression and speech. Closely linked to intermediary liability is the manner in which social media platforms self-regulate harmful content on their platforms. In September 2021 criticism was leveled at Facebook that it was not doing enough to prevent harmful content targeting children. It appears that self-regulation of social media content by companies are not effective. In some instances, it is alleged that profit outweigh safety and security concerns. Zuckerberg, CEO of Facebook, indicated in March 2021 in testimony to the United States Congress that he was of the opinion that social media companies should be regulated. Governments are now in the process of implementing regulations pertaining to social media content. Such regulation will have a ripple e...

One of the key findings of the South African Social Media Landscape 2022 study is that the growth in Internet access has, in turn, spurred the use of social media, leading to an estimated 48.8% (28 million) of South Africans being active on social media platforms, such as Facebook, Twitter, Instagram, YouTube, LinkedIn and TikTok. The down side is that online communication may not only become “viral” but it may also be harmful.   Initially Internet regulation focussed primarily on the criminalisation of unlawful online conduct, referred to as a cybercrime, which includes hacking, DDoS attacks, but now the focus has been extended to the criminalisation of specific forms of online communication, referred to as communication offences, which include postings on Facebook or WhatsApp.   The discussion deals with the criminalisation of specific forms of online communication in South Africa, the enforcement of communication offences with reference to the investigative powers of the police, ...

Social media has an enormous impact on the manner in which society communicates and shares information. Digital is no longer a supplementary channel, but is the first place most people go to for news, information and communication. The transmission of social media disinformation has increased dramatically across the world and it necessitates a response. The discussion focuses on the response to social media disinformation on a national level. The discussion does not focus on foreign state or state-sponsored actors of misinformation. The focus and publicity may - within the context of cybersecurity - predominantly have been on cyberattacks, such as ransomware attacks. However, recent incidents - unrelated to foreign state interference and cyberattacks - illustrate that cybersecurity law must encompass the threat of disinformation. The 2020 COVID-19 pandemic, 2021 Washington, DC, United States, and South African as well as the 2023 Brazil riots illustrate the harmfulness of social med...

Crime has always existed in the physical world. However, the transition of crime to an electronic medium brought about new challenges that had hitherto been unknown in the physical world. Besides the problems experienced in cyber crime prevention and investigation, the seriousness and consequences of cyber crime has gradually escalated, for example the distribution of child pornography, the growing prevalence of 'identity theft' and money laundering to name but a few. Since the 11 September 2001 terrorist attack on the USA, attention has increasingly focused on the control of the internet in combating terrorism and cyber crime. This paper focuses on the evolution of unregulated internet use to regulated use with the emphasis on state control by means of state surveillance in the interest of national security and combating crime.

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The United States Oil Pollution Act 1990 (OPA), contains a provision, s1002(b)(2) , that sets out six categories or kinds of damage that may be recovered from a ‘responsible party’ liable for losses resulting from damage caused by the discharge of oil in United States (US) waters. The provision was drafted with the purpose of facilitating a predictable and just outcome for claimants against such a responsible party.  The central argument of this dissertation is that the intended purpose is undermined by difficulties in interpreting certain of these provisions, and that, if these provisions are to achieve their objective, they require legislative amendment and that such reform is urgent.
The BP Spill highlighted the issue of the lack of clarity in the claims provisions of the OPA as well as revealing the potentially catastrophic and widespread effect that a spill of this magnitude can have.

The geographic footprint of contemporary warfare often challenges the existing understanding of the term 'non-international armed conflict', a term not defined in international humanitarian treaty law. This article examines whether the opening lines of Common Article 3 of the Geneva Conventions include a geographical requirement. Controversy surrounds this question which until recently has received little attention. The customary interpretation of Common Article 3 is that it has a geographical scope of application limited to non-international armed conflicts which take place exclusively within the borders of a single member state (internal armed conflict). The 2016 ICRC Commentaries to the First Geneva Conventions challenges this traditional view and argues in favour of a broader interpretation of the scope of application of Common Article 3. This re-interpretation recently has gained traction in scholarship. The ICRC's position serves as a possible solution to prevent a lacuna in humanitarian protection in situations where conflicts fit neither the understanding of 'international armed conflict' nor 'internal armed conflict'. By evaluating the merits of the arguments posed by the ICRC, the article assesses whether the phrase 'conflict not of an international character', as included in Common Article 3, conclusively limits its geographical application to an armed conflict occurring within the boundaries of a single state.