scholarly journals EMPLOYERS’ STATUTORY VICARIOUS LIABILITY IN TERMS OF THE PROTECTION OF PERSONAL INFORMATION ACT

2016 ◽  
Vol 19 ◽  
pp. 1
Author(s):  
Daleen Millard ◽  
Eugene Gustav Bascerano
Keyword(s):  
Personal Information ◽  
Common Law ◽  
Case Law ◽  
Employment Equity ◽  
Vicarious Liability ◽  
The Common ◽  
The Right ◽  
The Impact ◽  
Data Subject ◽  
Responsible Party

A person whose privacy has been infringed through the unlawful, culpable processing of his or her personal information can sue the infringer’s employer based on vicarious liability or institute action based on the Protection of Personal Information Act 4 of 2013 (POPI). Section 99(1) of POPI provides a person (“data subject”), whose privacy has been infringed, with the right to institute a civil action against the responsible party. POPI defines the responsible party as the person who determines the purpose of and means for processing of personal information of data subjects. Although POPI does not equate a responsible party to an employer, the term “responsible party” is undoubtedly a synonym for “employer” in this context. By holding an employer accountable for its employees’ unlawful processing of a data subject’s personal information, POPI creates a form of statutory vicarious liability.Since the defences available to an employer at common law, and developed by case law, differs from the statutory defences available to an employer in terms of POPI, it is necessary to compare the impact this new statute has on employers. From a risk perspective, employers must be aware of the serious implications of POPI. The question that arises is whether the Act does not perhaps take matters too far.This article takes a critical look at the statutory defences available to an employer in vindication of a vicarious liability action brought by a data subject in terms of section 99(1) of POPI. It compares the defences found in section 99(2) of POPI and the common-law defences available to an employer fending off a delictual claim founded on the doctrine of vicarious liability. To support the argument that the statutory vicarious liability created by POPI is is too harsh, the defences contained in section 99(2) of POPI is further analogised with those available to an employer in terms of section 60(4) of the Employment Equity Act 55 of 1998 (EEA) and other comparable foreign data protection statutes. 

scholarly journals Unresolved Controversies in Suing for Negligence of Tax Officials: Canadian and Australasian Insights and a Primer for Policy Makers' Consideration

2020 ◽  
Vol 68 (2) ◽  
pp. 439-476
Author(s):  
John Bevacqua
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Case Law ◽  
Policy Makers ◽  
The Common ◽  
The Right

There have been numerous recent Canadian cases in which taxpayers have alleged negligence by Canada Revenue Agency officials. This body of rapidly evolving Canadian case law constitutes, at present, the most extensive jurisprudence in the common-law world considering the tortious liability of tax officials. It also exposes fundamental unresolved controversies that inhibit legal clarity and certainty on the limits of the right of taxpayers to sue for the negligence of tax officials. Through comparison with cases in Australia and New Zealand, this article confirms that these unresolved controversies are not unique to Canada. The author proposes a range of options for addressing these issues. Intended as a primer for policy makers' attention and debate, these proposals are drawn from judicial and legislative approaches adopted in Canada, Australia, and New Zealand, and in other broadly comparable common-law jurisdictions.

scholarly journals Unauthorized medical intervention and informed consent in the common law of Canada prior to the Supreme Court’s decision of Reibl v. Hughes (1899–1980)

2020 ◽  
pp. 260-282
Author(s):  
Anatoliy Lytvynenko
Keyword(s):  
Informed Consent ◽  
Medical Treatment ◽  
Common Law ◽  
Case Law ◽  
Medical Intervention ◽  
Invasive Treatment ◽  
First Case ◽  
The Common ◽  
The Right ◽  
The Given

The given article deals with the Canadian legacy of civil actions on negligence and technical assault or battery involving an unauthorizedmedical interference to plaintiff. In modern doctrine and case-law, the given concept is named “informed consent”, upon whichthe patient is not a mere subject of medical treatment, but has a substantial set of patient rights, involving the informational ones, whichincludes his right to be informed on further invasive treatment and thus to be able to assent or decline it. The doctrine of informed consent,arising from actions on unauthorized medical treatment in both common law and civil law jurisdictions, has a centuryfold historyin the jurisprudence. In the common-law world, it was bred in the end of the 19th century primarily in the jurisprudence of Americancourts, but still has its distinct peculiarities in the common law of Canada throughout the twentieth century. The span on the researchedjurisprudence embraces the time period of 1899 (judgment of Parnell, which was the first case to deal with the subject) to 1980 (caseof Reibl v. Hughes), where the Canadian Supreme Court has firmly recognized the principle of informed consent in the acting commonlaw. In the 1990s, the principles of informed consent had been codified. The author has investigated on the evolvement of the conceptof patient’s right to autonomy in the state from the very beginning to the judgment of Reibl v. Hughes in 1980, and has researched theroots of the “right to autonomy” as an extension of the right to privacy, which has penumbrally existed in Canadian jurisprudence forover a century, despite having been recognized as such relatively recently, despite an existence of various early case-law legacy. Apartfrom the abovesaid, the author aimed to define the authorities used by Canadian courts in the earlier cases dealing with unconsentedsurgery, which involves judgments from other jurisdictions as well as professional legal and medical textbooks.

scholarly journals The Admissibility of Young People's Statements under the Proposed Youth Criminal Justice Act

1969 ◽  
pp. 771
Author(s):  
Sanjeev Anand ◽  
James Robb
Keyword(s):  
Criminal Justice ◽  
Young People ◽  
Common Law ◽  
Case Law ◽  
Young Offender ◽  
Youth Court ◽  
Youth Criminal Justice Act ◽  
The Common ◽  
The Impact ◽  
Young Offenders Act

This article examines the impact of Bill C-7, the Youth Criminal Justice Act, on the admissibility of young people s statements. Although the proposed reforms appear to leave admissibility within the discretion of youth court judges, the authors argue that the YCJA significantly curtails the types of factors that judges can consider when assessing the admissibility of youth statements. The three sources of law applicable to young offender statements are examined: the legislative provisions, the common law rules of voluntariness, and ss. 7, 9, and 10 of the Charter. The authors analyze s. 146 of the YCJA, the applicable section to youth statements, and compare it to the previous version of the Bill and to the current provisions of the Young Offenders Act The case law concerning voluntariness and Charter rights are also discussed, as well as the potential interrelationship between the three sources of law. In addition, the article explores when youth statements made to a person not in authority will be inadmissible.

Book Reviews, The Common Law Tort of Defamation, and the Suppression of Scholarly Debate

2010 ◽  
Vol 11 (6) ◽  
pp. 656-670
Author(s):  
Kate Sutherland
Keyword(s):  
Academic Freedom ◽  
Common Law ◽  
Scholarly Work ◽  
Academic Journal ◽  
Canadian Law ◽  
The Common ◽  
The Impact ◽  
Defamation Law

Professor Joseph Weiler will soon stand trial for criminal libel in France for refusing to remove a book review from a website associated with an academic journal for which he serves as editor. His case has disturbing implications for all those who write, edit, and publish critical scholarly work. In this article, I explore those implications for Canadian scholars at home and as members of a global scholarly community. I assess the likelihood of success of a similar complaint under Canadian defamation law, and I consider the impact of libel chill and libel tourism. I conclude that although the defendant in such a case would have a good chance of prevailing under Canadian law through the defense of fair comment, a threat to academic freedom remains that requires action on the part of individuals and institutions committed to its preservation and enhancement.

Liberating Malawi's Administrative Justice Jurisprudence from Its Common Law Shackles

2011 ◽  
Vol 55 (1) ◽  
pp. 105-127 ◽  
Author(s):  
Danwood Mzikenge Chirwa
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
The Common ◽  
The Right ◽  
Administrative Justice

AbstractThe 1994 Malawian Constitution is unique in that it, among other things, recognizes administrative justice as a fundamental right and articulates the notion of constitutional supremacy. This right and the idea of constitutional supremacy have important implications for Malawi's administrative law, which was hitherto based on the common law inherited from Britain. This article highlights the difficulties that Malawian courts have faced in reconciling the right to administrative justice as protected under the new constitution with the common law. In doing so, it offers some insights into what the constitutionalization of administrative justice means for Malawian administrative law. It is argued that the constitution has altered the basis and grounds for judicial review so fundamentally that the Malawian legal system's marriage to the English common law can be regarded as having irretrievably broken down as far as administrative law is concerned.

L'azione dell'Unione europea contro le discriminazioni basate sulla religione: l'impatto della giurisprudenza della Corte europea dei diritti umani

2012 ◽  
pp. 475-511
Author(s):  
Federico Casolari
Keyword(s):  
Human Rights ◽  
General Framework ◽  
Case Law ◽  
Legal Order ◽  
Equal Treatment ◽  
Freedom Of Religion ◽  
Eu Law ◽  
The Right ◽  
The Impact ◽  
The Eu

Law Although EU law has established a general framework concerning the fight against discriminations on the grounds of religion (namely as far as equal treatment in employment and occupation is concerned), the related ECJ case law is not very rich. This article tracks and evaluates the impact of the ECHR case law devoted to the freedom of religion on the interpretation and application of EU law concerning religion discriminations. It argues that the ECHR case law may contribute to identify the notion of ‘religion' which is relevant for EU law, while several arguments may be put forward against the application of the Strasbourg approach to the balancing between the right to quality based on religion and others human rights into the EU legal order.

scholarly journals ROLE OF FICTIONS IN REGULATION OF PROPERTY RELATIONS IN THE MEDIEVAL ENGLISH LAW

2016 ◽  
pp. 0-0
Author(s):  
Роман Рыбаков ◽  
Roman Rybakov
Keyword(s):  
Common Law ◽  
Case Law ◽  
Historical Method ◽  
Property Relations ◽  
Legal Method ◽  
The Common ◽  
Legal Fictions ◽  
Interpretation Method

The article is devoted to legal fictions in regulating property relations in the English medieval common law (XIII—XVII centuries). Fictions are explained as features influencing the development of law, means of expansion of courts’ jurisdiction and mechanisms of the development of remedies protecting property relations. The article focuses on the role of fiction during the appellate review stage. Relevant case law is analyzed in this article. In this research the author uses the following set of methods of scientific cognition: dialectical method, historical method as well as special scientific research methods, such as technical legal method, comparative law method, formal legal method and legal interpretation method. This research results in better understanding of the role of fictions during the appellate review stage and provides analysis of differences between legal fictions used in the medieval civil law and the common law. In conclusion, the author suggests a classification of legal fictions’ functions in the medieval English common law.

scholarly journals The publication of judicial decisions as a reason for convincing precedent

1970 ◽  
pp. 195-199
Author(s):  
Roman Sabodash
Keyword(s):  
Common Law ◽  
Civil Law ◽  
General Idea ◽  
Court Decisions ◽  
Supreme Courts ◽  
State Register ◽  
Pros And Cons ◽  
Legal Position ◽  
The Common ◽  
The Right

The paper shows how the publication of court decisions influenced the formation of a precedent. The author reviewed scientific works devoted to research the precedent in common and continental law. The research explains that the formation of precedent in England was accompanied by development of the judgment’s reviews and their prevalence among lawyers. Of course, publication of court decisions was not a major factor in setting a precedent, but it played a significant role in this. The paper also describes facts of the publication of court decisions in Italy, Germany, France and the Netherlands, as well as the admissibility of their citations at the court of cassation. The general idea of the paper is that convincing precedent exists and is used although the countries of continental law do not have a «classic» precedent. The paper gives a review of the importance of the state register of court decisions for setting a convincing precedent in Ukraine. The author analyzes the pros and cons of citing court decisions. It’s stated that, unfortunately, the quotations of court decisions is not always correct and sometimes amounts to rewriting the «right» legal position without comparing the circumstances of the case. The article concludes that the practice of applying a convincing precedent in Ukraine is only emerging and needs further improvement.          It has been found out that the publication of judgments of supreme courts is one of the factors that helped to establish precedent in common law countries. The publication of court rulings also created the conditions for a convincing precedent in civil law countries (especially in private law). At the same time, the formation of a “convincing precedent» in countries where court decisions are published in publicly available electronic court registers is much faster than in common law countries. Of course, the structure and the significance of the precedent in the common law and civil law countries are different, but one cannot dismiss that publication of court decisions as one of the factors for establishing the precedent.

scholarly journals GOOD FAITH IN FRANCHISE CONTRACT

2020 ◽  
Vol 5 (19) ◽  
pp. 118-127
Author(s):  
Nurli Yaacob ◽  
Nasri Naiimi
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Relational Contracts ◽  
Law System ◽  
Freedom Of Contract ◽  
Term Contract ◽  
The Common ◽  
Definition Of ◽  
The Right

Good faith has been defined as justice, fairness, reasonableness, decency, taking no chances, and so on. The concept of good faith has long been rooted in contract law under the jurisdiction of Civil law, although the definition of it is still debated until today. However, the view of the Common Law tradition does not recognize the concept of good faith as long as the contract is entered into with the freedom of contract and both parties abide by the terms of the contract. Given that a franchise contract involves a long-term contract and always been developed, it is impossible to define both rights and responsibilities base on express terms only. As such, the franchise contract gives the franchisor the right to exercise its discretion in executing the contract. It is in this context that the element of good faith is very important to ensure that the franchisor does not take advantage of the franchisee and that the business continues to prosper. Therefore, the objective of this article is to discuss the concept of good faith in a franchise contract. The findings show that the common law system that initially rejected the application of the concept of good faith also changed its approach and began to recognize the concept of good faith as it is very important for relational contracts such as franchise contracts.

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