Webinar Recap: Working with Non-English Materials for the English Speaker

By Jessica Pierucci

On June 6, 2019, the FCIL-SIS Continuing Education Committee hosted its inaugural webinar, Working with Non-English Materials for the English Speaker. This engaging and information-packed session featured three panelists who discussed the best resources and provided research tips for finding the most helpful English translations of laws in European, Asian, and African countries.

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This post briefly discusses some key takeaways from the webinar, but for a complete list of resources, please check out a helpful handout and set of slides from the presentation both freely available through the Continuing Education page on the FCIL-SIS section of the AALL website. A webinar recording is also available to AALL members at this site.

Europe

Erin Gow, Online Services Librarian at University of Louisville Law Library, started the panel with European languages. She suggested starting with EUR-Lex and N-Lex when looking for documents from EU member states. In EUR-Lex, she pointed out annotations noting the source of translation (official, machine translation, etc.). In N-Lex, Gow demonstrated how the search boxes helpfully translate English language searches to other languages.

Gow also recommended places to find guides for this type of research. GlobaLex is often her first stop. She also checks for research guides from European law libraries, because those guides are generally developed by librarians who regularly work with European resources. Gow specifically mentioned guides from the Bodleian Law Library at Oxford and Middle Temple Library, including Middle Temple Library’s National Information Links for Lawyers PDF chart (PDF on the right).

Gow provided global tips as well. She explained that government websites, websites for relevant multinational organizations, and the International Encyclopaedia of Laws can also be potential sources of translated laws. She also recommended checking Lexis, Westlaw, HeinOnline, treatises, encyclopedias, and law review articles for any translations contained therein. For performing machine translations, Gow noted that she prefers the translation application Linguee. She also discussed the general helpfulness of Google Translate, but she cautioned to always be aware of the limits of machine translation.

Asia

Alex Zhang, Assistant Dean for Legal Information Services at Washington & Lee School of Law, focused on Asian languages. Zhang explained that for countries in which English is an official language, such as Singapore and Hong Kong, the researcher’s focus should be on finding the most authoritative source. Singapore Statutes Online is a helpful government resource for finding Singapore’s laws online, but it only contains unofficial versions of legislation. The official text is published in the print Gazette. On the other hand, electronic Hong Kong e-Legislation documents with “verified copy” marks are the official text.

For countries in which English is not an official language, the best bet is often finding a translation produced by a governmental entity (e.g. Japanese Law Translation), but it’s crucial to remember translations won’t have official status. Zhang emphasized considering the translation’s origin, focusing on the translation source, date, version history, and format. She also encouraged comparing multiple translations where possible.

Zhang also shared some broadly applicable tips. Great research guides may come from academic libraries in a relevant country, such as the Chinese University of Hong Kong Library. The Foreign Law Guide, GlobaLex, and Law Library of Congress Guide to Law Online: Nations are all great resources for locating information about the availability of translations. Further, Lyonette Louis-Jacques’ “How to Find Cases in Translation, Revisited” in Slaw is a valuable tool for case research ideas.

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Africa

Yemisi Dina, Acting Chief Law Librarian at Osgoode Hall Law School Library capped off the panel by discussing African languages. Dina focused on the presence of many indigenous languages across the continent, which can lead to loss of the true meaning during translation from language to language. One manner in which meaning can be lost occurs when customary court judges, who often do not produce written decisions, elect to have their decisions written in a language other than the indigenous language spoken during the proceedings. Meaning can also be lost during international tribunal hearings, when interpreters translate from an indigenous language to the official language of the tribunal.

Although true that many African countries have English, French, Arabic, and/or Portuguese as official languages, the text in those languages may not fully capture the meaning originally intended by law originated in an indigenous language.

Dina suggested using AfricanLII as the go-to resource, but noted that it, like LLMC and other collections, is incomplete and still has a way to go toward becoming a complete resource for African legal information.

Want more information?

Don’t forget to check out the webinar resources posted on the Continuing Education page on the FCIL-SIS section of the AALL website. They’re super helpful including citations and links to a wide array of translation-related resources.

ASIL 2019 Recap: Late Breaking Panel: BREXIT and International Law

BrexitBy Marylin Raisch

Moderator: Oonagh Fitzgerald, Director of the International Research Program, Centre for International Governance Innovation, Ontario, Canada

Speakers: Robert Howse, New York University School of Law; Jessica Simonoff, U. S. Department of State; Sir Michael Wood, 20 Essex Street Chambers; Joao Rodrigues, European Parliament Liaison Office

The fact that the very day of this panel at ASIL was originally “Brexit Day,” that is, the day the UK Parliament was to exit the European Union, says a great deal about Brexit and the crisis at the nexus of international and constitutional law that it represents. However, it may happen April 12 if she cannot get her plan passed on this day, which would have given the UK until May 22nd instead.[1] (Or, as of this writing, at the end of this year if Labour cannot join up? Who knows…). This late-breaking panel was scheduled to end at 10:30 a.m., when the straw polling in Parliament on Prime Minister Teresa May’s proposal was to begin. And so it goes. (We learned soon after the panel session broke up that the proposal failed).

After briefly reviewing the timeline from the referendum in 2016, moderator Oohagh Fitzgerald provided a summary of the U.K. Supreme Court Decision of R (Miller) v Secretary of State for Exiting the European Union [2017 UKSC 5]  (January 24, 2017). This is notable since the ruling of the court established that the UK executive could not just notify the European Council of its intention to withdraw from the EU; as with other UK treaties, an Act of Parliament would be required to permit that communication. (There is now in fact a European Union (Notification of Withdrawal) Act 2017 as of Royal Assent dated March 16, 2017). With at least this basic context in place, and some reference to the role of House of Commons speaker Bercow in requiring substantial changes before another vote on the same matter could take place, the Moderator posed a series of questions to the panel.

  1. What is the state of international law in the UK in light of BREXIT? Does it demonstrate that international law is working as it should?

Panelists articulated several perspectives on this excellent question and seemed to cover the range from internationalist to newer reassertions of sovereignty. For example, Sir Michael Wood, who participated in negotiation of the UK treaty of access to the EU in his time as an EU-focused lawyer, stated that EU law is not really autonomous. It is embedded in treaties and so it is largely part of public international law. The issue of Northern Ireland, and the UK ideally remaining in some sort of customs union to avoid a hard border, may become one of rules of interpretation. There is disagreement between the UK and the EU on whether the art. 50 withdrawal mechanism operates to contract the UK out of even customary international law rules. While Sir Michael pointed out that some MPs think “fundamental” and “unforeseen” changes in circumstances are manifested in the backstop situation, and Brexiteers (pro-Brexit MPs and ministers) think this might permit departure from the Brexit agreement (and its backstop under art. 62 of the 1969 Vienna Convention on the Law of Treaties), he is not sure that this would be so. (Brexiteers want to prevent an eternal tie to the customs union). Many are skeptical that evidence of concern over an issue such as that, expressed in advance, could ever allow that issue to be called “unforeseen.” This panelist shared that skepticism, as he is more of an internationalist and former lawyer working with the UN International Law Commission and the Foreign and Commonwealth Office.

A different view was taken by the panelist from the current US State Department. Jessica Simonoff viewed Brexit as an outsider and saw it as not about development of supranational governments but rather as showing the ongoing significance of national identity. The rules are developed by consent, as underscored by the ability to depart from a treaty.  International law is alive and well because even after the UK delegated some of its international negotiating authority to the EU, it now can re-familiarize itself with some international law rules.

Professor Howse of NYU Law then contributed insights from international economic law as he pointed out that the UK would still be under the multilateral rules of the WTO. The logistics of new trade agreements and the hard border are not like the arrangements around which supply chains are organized. Pro-Brexit forces seem to him not to understand how new globalized trade actually works now, and a hard Brexit would create initial chaos with serious shortages of goods, at least temporarily. He also commented on the politics of Brexit, which he attributed in part not to a return to lost sovereignty, but to the work of elites using populism for political career advancement.

Panelist Rodrigues quipped that he “owns” his hat as EU bureaucrat. However, he prefers the term civil servant, a profession her noted ironically was established by the British.  The EU is an international organization, but one created by a body of laws that has a constitutional nature. He sees Brexit not really a legal question, because it is allowed under the treaty in the procedure outlined by the UK case. Moreover, a case went to the European Court of Justice on the issue of unilateral withdrawal from the Brexit process, and it was ruled permissible if done democratically. So the legal part is all sorted. But he asked the political question of how does a member state get itself to a decision to leave? What is disturbing is that here we are on Brexit Day and there is no clear manifestation of British will. International law is well; political process in Britain is not.

  1. May cannot use crown prerogative per the Miller case, in this instance of a treaty, but now can she not move ahead with a statute in place?

Sir Michael Wood pointed out that even with some of the specific legal hurdles surmounted, the situation carries huge implications for UK constitutional law and there should never have been a referendum. While the rule of law and the idea that a minister cannot put same issue to vote twice in same Parliament is the same rule that in UN from parliamentary procedure.  Treaties are executive and Parliament is not usually part of negotiations. In this case it has led to big problems.

Ms. Simonoff and Professor Howse, sharing a US perspective, observed that whether the UK is able to pull out of treaty has been moved to Parliament as a matter of constitutional law. Simonoff then compared the process to NAFTA withdrawal and Congressional involvement in those types of agreements. Howse noted and agreed that NAFTA would need some Congressional action for withdrawal. For WTO withdrawal, he speculated, were it to be contemplated, it would have to be based on resolutions of Congress, because the provision for review works through a Congressional process.

Rodrigues noted that there the Task Force on Article 50 Negotiations website was quite transparent, and indicated publicly what they would or would not accept. The EU 27 were united in how to deal with situation. Unlike Professor Howse, however, he thought populism played a crucial role.

  1. Is there a new bilateralism? Will getting out of massive relationship make the UK able to enter into such new agreements? Moderator Fitzgerald noted that European Council President Tusk thought bridging gap between any popular vote and orderly obligations needs to be worked out ahead and we have not seen that here in concrete plans for a new arrangement.

While Sir Michael Wood observed that the EU is not really multilateralism of the usual kind, Jessica Simonoff of US State thought that while bilateralism may simplify a discussion, a treaty negotiation is never really bilateral, as there are other voices in the room. Actions in the UK will always affect the EU. Contracts in many areas will be affected in the realm of private parties (for example, phone roaming fees now in EU after Brexit).

Professor Howse noted that ironically the less-discussed fall-back rules for the UK is a much bigger WTO multilateralism. The EU has now proven that it is a community of choice and right to depart is a real right. Euro-skeptics can now be shown that this is not like the old Soviet Union (to exaggerate) and that the EU made a good faith response. In his role as the EU civil servant on the panel, Mr. Rodrigues agreed that the EU will have to be flexible and negotiate a new trade agreement with the UK itself, so that is certainly bilateral.

  1. Q and A from the attendees consisted of three main questions:
    1. Will there be a way to adjudicate new disputes if there is a hard Brexit?
    2. Will the Good Friday Agreement and human rights in general be respected through some inclusion of the EU treaties’ principles on fundamental freedoms, and equality before the law, as applied in Ireland/N Ireland?
    3. Can the panel address what can be fairly referred to as a dishonest referendum? It was a dishonest vote: had it been between Remain and a version of Brexit, Remain would have won. The referendum was not an exercise in democratic will because no specific version of withdrawal was proposed.

The panelists answered all three questions together. Sir Michael Wood does think that temporary fixes will be used in a hard Brexit regarding air travel etc. He mused that the UK is paying to leave, and what if they say won’t pay if EU does not approve withdrawal agreement? Ms. Simonoff agreed that now that more information available, a second referendum could be good idea and not anti-democratic. Professor Howse thought democracy was manifested in the first vote, but people are also free to change their minds. Joao Rodrigues stated that the EU just sees it as done deal. Some provisional measures were taken by Council and Parliament to address a no-deal Brexit, such as in areas of customs, pharmaceuticals, etc., about 18-20 special measures, in fact. He thinks financial obligations of the agreement will come into the negotiations for a new UK- EU trade agreement, and rights of citizens as between the two jurisdictions will also play a part. He bases this on the UK rebate on fees that Prime Minister Margaret Thatcher negotiated in the 1980s as manifestation of UK exceptionalism; they got it in 1984, so perhaps now as well.

As the panel ended and everyone left ready to check phones for news of the impending vote, all panelists- and attendees, no doubt- seemed to agree that whatever else it may be, Brexit has been good for stimulating interest in international law, and very good for lawyers.

 

[1] Update and Brexit timeline summary from a research report posted at the official Parliament website: “In a referendum held on 23 June 2016, the majority of the UK electorate voted to leave the European Union.

On 29 March 2017, in writing to European Council President Donald Tusk, the Prime Minister formally triggered Article 50 and began the two-year countdown to the UK formally leaving the EU (commonly known as ‘Brexit’).

The UK has long been expected to leave the European Union at 11pm on 29 March 2019.  However, following a House of Commons vote on 14 March 2019, the Government sought permission from the EU to extend Article 50 and agree a later Brexit date.

On 20 March 2019 the Prime Minister wrote to European Council President Donald Tusk, asking to extend Article 50 until 30 June 2019.

Following a European Council meeting the next day, EU27 leaders agreed to grant an extension comprising two possible dates: 22 May 2019, should the Withdrawal Agreement gain approval from MPs next week; or 12 April 2019, should the Withdrawal Agreement not be approved by the House of Commons.”

 

GDPR and Data Privacy at the ABA TECHSHOW

GDPRBy Meredith Capps

I recently attended the ABA TECHSHOW in Chicago, IL (along with quite a few other law librarians, an impressive turnout!), primarily to stay current on recent e-discovery practices and platforms as my library’s resident e-discovery expert, per my prior life as a law firm associate.  As an FCIL librarian, however, I was compelled to step out of former-litigator mode and attend what proved to be a fascinating session on the EU’s General Data Protection Regulation (GDPR) and data privacy laws.  The speakers, Steven M. Puiszis and Judy Shelby, described the ways in which the practices of U.S. law firms and their clients regarding personal information may run afoul of the law, and how U.S. entities should analyze their risk and approach compliance.

Puiszis and Shelby discussed the GDPR’s expansive reach, noting that even minimal activity in an EU state may render a foreign entity “established” in the EU for purposes of the regulation, and that even data that is not “processed” in the EU is covered by the regulation.  They emphasized that “personal information” is defined in a manner far broader than U.S. lawyers would expect, that there is no small business exception to the regulation, and that this information may reside in many repositories maintained by the typical U.S. firm or business, such as human resource databases, marketing databases, client databases, and, of course, email correspondence.  They discussed lawful bases to process personal information, noting that a law firm conflict check should qualify as information necessary for the defense of legal claims, and discussed anonymizing data as one means of ensuring compliance with GDPR.   Though there is uncertainty as to how GDPR will impact requests for documents in U.S. litigation, Shelby noted that federal courts are generally not receptive to enforcing foreign blocking statutes, and that the typical U.S. approach to discovery runs counter to GDPR’s goals of minimum storage.  Cautious U.S. litigants should nevertheless consider narrowly targeting requests for data that may be subject to GDPR, and consider whether anonymized data would suit their purposes.

Their discussion raised a few issues that brought to mind research questions well suited to a course on FCIL research:

  1. National law: Though as a regulation, rather than a directive, GDPR is directly applicable to member states and does not require domestic implementing measures, Puiszis emphasized that EU states maintain their own privacy laws and policies that U.S. entities must consider in addition to GDPR.  Furthermore, I found that European Commission guidance issued in May 2018 specifically notes that the regulation empowers member states to impose conditions and limitations beyond those imposed by GDPR, and contemplates individual member state determinations as to the applicability of the rules in certain sectors.  The EC also states that interpretation of the regulation will be left to European national courts.  In constructing an EU research question concerning GDPR, instructors could well introduce foreign law questions into their hypothetical research problem–questions for which researchers would not enjoy the benefit of the national transposition measures list provided only for directives in EUR-Lex.
  2. Cyber-insurance: Shelby discussed the possibility of obtaining cyber insurance to cover fines associated with GDPR violations, but noted that these fines may not be insurable under the domestic law of some states, raising another potential foreign law companion question.
  3. Recognition of foreign judgments: Though due to time constraints they could not discuss enforcement issues in depth, the speakers mentioned difficulties surrounding the imposition of fines when an entity lacks assets in the EU, and that international treaties or domestic laws such as the U.S. Uniform Foreign Money Judgements Recognition Act may provide mechanisms for cross-border enforcement.  As enforcement proceedings inevitably proceed, they should raise interesting examples involving a mix of foreign and international law.
  4. Data Protection/Processing Agreements (DPAs): Puiszis discussed the importance of entering into, and modifying per GDPR, agreements with vendors and third parties with whom firms, and their clients, may share personal information.  Asking students to locate sample agreements would be an excellent way to reinforce research instruction from 1L and Advanced Legal Research courses regarding publications containing forms and sample contracts.

Locating UK and EU Guidance on Brexit

By Alison Shea

Brexit
Over the past week, two things happened which inspired me to write this post.  First I read this story on how the Dutch government had set up a website to provide guidance to its citizens on how to prepare for Brexit, and of course I immediately imagined how awesome it would be if the Dutch Brexit monster featured in the story teamed up with Gritty for a buddy comedy.  Second, I read FCIL-SIS Chair Catherine Deane’s column in the FCIL Newsletter asking for people to volunteer to write a blog post for Diplawmatic Dialogues.

As much as I know you were hoping to read my script ideas for the Gritty/Brexit monster buddy comedy, I began wondering if any other countries had created a comprehensive guidance site for its citizens and businesses in advance of Brexit (and especially a no-deal Brexit).  It had previously occurred to me that teaching an EU and/or UK research classes this semester would be very challenging given the timing of Brexit, and I figured the best thing I could recommend to students given this uncertainty would be to look for and follow government guidance documents.

Why recommend government guidance documents?  Because the actual withdrawal of the United Kingdom from the EU – currently scheduled to occur at 11pm GMT on March 29 – now looks like it will be very abrupt (if it happens at all), it will not be possible to amend all relevant laws to reflect the changes immediately (check out this blog post for a brief overview of the magnitude of changes that need to occur).  Thus, it will be important for anyone with an interest in Brexit to follow the government’s guidance on how to deal with it until the law can catch up.  Not only is the guidance going to be crucial for those living and working in the UK, it will also be extremely important for any country that currently engages with the UK in its (soon to be former?) capacity as a fellow EU member.   Therefore, a list of places to locate government guidance seemed like a good tool to create for librarians and FCIL instructors to have in their toolbox over the coming month(s).

After spending a few days searching and locating guidance information for most of the EU member states, I realized that the EU had already beaten me to creating a list of the relevant government guidance sites.  This was an extremely disappointing discovery, since I had already pitched this as a great blog post to Alyson and Susan and was really proud of my advanced Google (and Google Translate) skills.  However, from all my searching I can at least share my top research tip: because “Brexit” isn’t a real word, it’s a great search term to use in any language!   In the end, Alyson and Susan convinced me that there could still be value in my post, and so I humbly present a (shorter) list of relevant sites for locating government guidance on Brexit.

It should go without saying that this is what I was able to locate as of February 26, 2019; the landscape of Brexit guidance will undoubtedly change the closer we get to “B-day”, and will also change if the UK government takes new action in the interim (the latest update is that a “meaningful vote” will be held by March 12), so stay tuned!*

United Kingdom guidance

European Union guidance

Individual European country guidance

Even non-EU member states are finding it necessary to prepare for Brexit, as these countries interact with the United Kingdom under various bilateral agreements with the European Union and the European Economic Area; see, for example, this recent agreement on arrangements of citizen’s rights for many of these non-EU countries.  Three countries that have especially close ties with the UK are listed here:

 

*Looking for suggestions on how to “stay tuned” to the ever-changing world of Brexit?  Here are some of my go-to sources for Brexit coverage:

From the Reference Desk: Is There An Annotated European Union Code?

By Amy Flick

“Is there an annotated European Union Code? I have an EU directive, and I need to find some cases that interpret it.”

First, having just taught a class on U.S. statutory legal research, I’m thrilled that a student thought to use an annotated code to find cases interpreting legislation.

There isn’t a European Union code, not exactly. But the European Union does have a classification system for its law, and there are sources for finding cases on a particular EU directive, from the European Court of Justice and from national courts.

The student was looking for cases on Directive 98/44/EC on patents for biotechnological inventions.

Although European Union law isn’t codified, the closest thing to a codification would be the Directory of Legal Acts on EUR-Lex. It arranges EU legislation in force by subject and includes consolidated acts incorporating amendments. Directive 98/44/EC is classified with Intellectual Property legislation at 17.20, but with a general heading at 17 of “Law relating to Undertakings,” I’m not sure I would have found it without already having found the Directory Classification. There is also the EuroVoc thesaurus for browsing legislation (and caselaw) by subject. Either the thesaurus terms or the Directory codes can be used in the EUR-Lex Advanced Search, along with text and other criteria (including type of legislation). In this case, a text search for “biotechnology AND patents” worked just as well.

The student already had the citation for Directive 98/44/EC, but I recommended that he look at the Directorate-General on Internal Market, Industry, Entrepreneurship and SMEs. The European Commission’s executive agencies are a great source for finding current legislation that they administer, with links to EUR-Lex. The DG’s page on Protection of Biotechnological Inventions includes the Biotech Directive with a summary, reports, and related documents, plus a State of Play of the Implementation of Directive 98/44/EC that has dates and citations for national legislation implementing the directive.

Summaries of EU Legislation on EUR-Lex are also a good way to find legislation by subject, including by general topic or to search. Again, a search for “biotechnology and patents” retrieved the summary for Directive 98/44/EC.

With a directive citation in hand, my student can find cases interpreting the directive. The EUR-Lex Document Information for the directive includes a “Relationship between documents” section that has links to Court of Justice judgments as published in the Official Journal of the European Communities.

The European Court of Justice’s CURIA site has an advanced search page with a field for “references to case law or legislation,” including directives by number. It even allows searching for pinpoint references to paragraphs within the directive.

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Since directives require that EU member states implement them with national legislation, there are also national laws and cases in national courts on the directive.

Once a directive is found in EUR-Lex, the links in the left navigational side bar include “National Transposition.” These National Transpositions by Member State provide the citations to each member state’s implementing laws for the directive. He could also use EUR-Lex’s Advanced Search Form. Choose National Transposition as the collection and search by directive number (1998 and 44).

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For this particular directive, that “State of Play” from the Directorate-General cites national implementing legislation. If a Google search doesn’t retrieve the cited legislation, the student could use the Foreign Law Guide database or the Law Library of Congress’ Guide to Law Online to find sources for national legislation.  There’s also the European Union’s N-Lex gateway to search for national legislation in N-Lex with the directive citation.

Back to looking for cases interpreting the directive, the EUR-Lex advanced search can be used to search national caselaw as well. He could use the same EUR-Lex Advanced Search Form, choose National Case Law as the collection, and enter the directive number in the Instruments Cited field.

The European Union’s Association of the Councils of State and Supreme Administrative Jurisdictions has its own Dec.Nat. database for searching national decisions on European Union law. The search page includes a field for Provision of European Union Law for searching by directive number, or other EU legislation. The results list includes country, date, title of the case, and parties, with case details including a citation to the national law and link to related ECJ judgements.

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So, the European Union doesn’t have annotated code, not is there an “EU Code.” But it does have subject resources for finding legislation. And it offers multiple ways through EUR-Lex and other EU databases to find cases that interpret an EU directive, and national legislation implementing the directive.

And my thanks to Alison Shea for sharing her European Union expertise!

Working with FCIL Collections in British Law Libraries

By Erin Gow

Most of my FCIL experience has come from working at law libraries in the United Kingdom, where I started my career. British collections are, understandably, not considered foreign in the UK. This means that I worked in libraries with extremely deep, strong, and wide-ranging British legal collections. Primary and secondary materials were collected in both print and electronic formats. The libraries held not only primary legislation and key treatises but also British legal reference materials, journals, law reports, secondary legislation, ecclesiastical law, historic materials, citators, indexes, and a wealth of other materials comparable to the range of American resources found in a law library in the US.

BasicEUCollectionatGrays

The basic EU collection at Gray’s Inn Library.

Since the UK is a part of the European Union and Council of Europe, British law libraries also hold collections of legal materials related to these organizations. The law libraries that I worked at were attached to Inns of Court, which form a loose coalition and divide responsibilities for specialist FCIL collections between themselves. Gray’s Inn Library, where I was first employed, specializes in international law, while Middle Temple Library, where I worked until leaving the UK, specializes in European and American law. The other two Inn Libraries (Lincoln’s Inn and Inner Temple) divided the Commonwealth countries between them.

Gray’s Inn Library did not have a designated FCIL or International Librarian when I worked there, so everyone was expected to assist with the specialist international collection. This meant lending a hand with cataloging international materials, consulting both primary and secondary international sources to answer reference questions, and assisting library users in accessing these materials. Nearly all the international materials held at Gray’s Inn Library were in English, and consisted mostly of secondary resources along with selected key primary sources such as treaties.

MiddleTempleBritishLawReports

A portion of the extensive collection of British law reports at Middle Temple Library.

At Middle Temple Library I worked as the European Librarian responsible for that special collection. While all the Inn libraries held some basic European Union materials, complex questions requiring more obscure resources were referred to the specialist collection at Middle Temple Library. The collection also included national materials from European countries, along with Council of Europe materials.

I found that being comfortable with a federal legal system gave me an edge in trying to wrap my mind around the European Union, which could be somewhat baffling to those used to a legal system where all powers are delegated from a central body. Although the distinction between the European Union and the Council of Europe plagued many people, the biggest learning curve for me came in working with national resources from civil law jurisdictions. Getting to grips with a completely different legal structure was particularly difficult for me in countries where the national language was not English. Most of our library patrons were English-only speakers, so the collection policy at Middle Temple Library focused on English resources whenever they were available. As an English-only speaker this made my life easier in many regards, but it was impossible to fulfill my responsibilities as European librarian or to maintain a complete collection without sometimes working with foreign language materials. There were several key French codes, for example, which Middle Temple Library traditionally held in print in the official French. When it became clear that these codes were woefully out of date I spent several weeks in protracted negotiations with French legal publishers tracking down and purchasing the appropriate replacements. Luckily my manager at the time was able to provide extremely competent translations of emails between myself and the French publisher, but I still had to identify the correct codes to purchase by cobbling together my own translations of the promotional materials.

Since Middle Temple Library specialized in American law as well, I interacted with this collection a fair amount, especially as my co-workers began to realize that they could call on me when the librarian responsible for the collection was absent. Explaining American legal resources as foreign law was an oddly frustrating sort of fun. It was nice to work with a collection where I was guaranteed to always know the language, particularly after some of my more complex excursions into European resources, but I found myself struggling to answer questions that British practitioners believed should be straightforward. I was frequently asked why Federal courts hadn’t ruled on a particular issue, for example, or which case reporters were the most authoritative for court use (I’m unaware of an American equivalent to the vital British concern of authoritative law reports). Law reporters arranged geographically were understandably unhelpful for British lawyers, and questions that tapped into the library’s special collection on the death penalty always reminded me just how ideologically foreign American law could be. My work with American legal materials while in the UK, more than anything else, made me realize just how many key differences can be masked by a shared language and history.

My experience of working with FCIL collections in the UK has continued to shape how I approach these resources now that I am in the US. A practical grounding in a variety of legal structures allows me to research unfamiliar topics across a range of jurisdictions with some confidence, but the experience of “foreign” as a changing concept ensures I never forget to respect the wide-ranging variety of FCIL resources.

IALL 2018 Recap: Privacy in European Cross-Border Settings

By Meredith Capps

In Privacy in European Cross-Border Settings, Dr. Christina Mariottini spoke of a new understanding of privacy, distinguishing between the traditional notions of privacy, which were territorial and time-limited, versus privacy in an automated and computerized setting, where violations are potentially permanent in nature and information is ubiquitous.  Whereas in the year 2000, 738 million people used the Internet, now 4.2 billion do, creating a complex and layered legal privacy landscape.

Historically, continental Europe, the US, and the UK have embraced different rationales for a right to privacy.  In continental Europe, privacy is considered an expression of dignity and self-determination.  In the US, privacy is considered an expression of liberty and protection from government intrusion (ex. unreasonable searches and searches), and commodified in certain instances (ex. a right to publicity).  Conversely, in the UK there was until recently no general tort for violation of privacy.  Privacy is generally defined in accordance with the notion of an individual’s space, whereas data protection refers to the specific area of the law that regulates the “processing of data associated with an identifiable individual.”  Defamation and the right to reputation are defined as allegations or imputations, characterized by a certain degree of falsehood, of a fact made public that disparages the reputation.  The right to freedom of expression must be balanced against the right of privacy in these conceptions.

Dr. Mariottini went on to describe a number of sources of regulation of privacy in the EU:

  • Article 8 of the European Convention on Human Rights, which states: “everyone has the right to respect for his private and family life, his home and his correspondence.” The European Court of Human Rights (ECHR) construes article to include data protection.
  • The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108) of 1981 (modernized in 2018), the first binding legal instrument adopted in the EU in the field of data protection.
  • The Charter on Fundamental Rights of the EU, Articles 7 and 8, recognizing respect for private life and protection of personal data as closely related, but separate fundamental rights. (In addition, Article 53 clarifies that these provisions set a minimum standard.)
  • And, most recently, the General Data Protection Regulation (GDPR), the aim of which is to protect all EU citizens from privacy and data breaches in today’s data-driven world.

GDPRIn the GDPR, “personal data” is “any information relating to an identified or identifiable natural person (‘data subject’)…in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.”  “Processing” refers to “any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means…”

The GDPR includes several notable provisions.  Whereas prior privacy regulations were ambiguous with respect to territorial scope, Article 3 expands territorial scope to include personal data processed outside the EU.  Data subjects can easily withdraw consent to use of their data, and data controllers must notify data subjects of breach within 72 hours of knowledge of that breach.  Data subjects also retain a right to access their personal data and a right to have their data erased and no longer disseminated—the “right to be forgotten.” The law enforcement directive provides rules governing use of personal data by law enforcement authorities

Dr. Mariottini concluded by discussing the outlook on the current proposals for new legislation.  E-evidence regulations governing access to and preservation of electronic data held by companies is one area of concern, and Mariottini discussed debates regarding the CLOUD Act in the US, and improving existing mutual legal assistance agreement.  In response to questions from the group, Mariottini noted that despite criticism, the GDPR is serving as a model, with Brazil about to adopt similar legislation, and even China considering the issue.  She noted that though social media platforms such as Facebook were quick to draft policies purporting to align with GDPR, most of these policies do not, in fact, comply with EU law.