Below is my background paper for a conference held at IDS, Sussex University, a few months ago. It is being submitted for a publication, so I may need to withdraw this draft once the paper is accepted. Comments welcome!

In Ofcom v Information Commissioner, the Information Tribunal held that radio frequency waves from a BTS antenna qualifies as emission under EIR, which as a consequence, does not qualify for protection from disclosure, even if the information is deemed confidential. The discussion below is hilarious:

Mr Facenna, Counsel for T-Mobile, accepted that radio frequency waves may correctly be characterised as both "energy" and "radiation". He also accepted that it was a correct use of the English language to say that they were “emitted” from a base station. However, he argued that they nevertheless did not constitute "emissions" for the purposes of the EIR because the circumstances in which the EIR came into existence require the word to be given a particularly narrow meaning. Those circumstances were that EIR implemented the Directive which included, in its fifth recital, a statement that it was itself intended to be consistent with the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters ("the Aarhus Convention ").

Mr Facenna accepted that, even if we accepted that base station radiation should not be treated as "emissions", he was still faced with the presence of the words "energy" and "radiation" in subparagraph (b) of the definition. However, he argued that these two "factors" do not affect, and are not likely to affect, any of the elements of the environment referred to in subparagraph (a). At one stage this proposition seemed to be leading Mr Facenna and Mr Choudhury, Counsel for the Information Commissioner, into a debate on the scientific properties of radio waves. It was agreed that they are capable of having an effect on solid matter they come into contact with (for example, the agitation of the molecules of a piece of meat by microwaves for the purpose of cooking). However, it was debated whether or not they have any effect on the air through which they pass en route to such matter. We do not feel qualified to express any view on whether the less dense molecular structure of air results in all radio wave frequencies passing through it with no effect at all on individual molecules. We do not believe that it is necessary for us to do so. The definition is not intended to set out a scientific test and its words should be given their plain and natural meaning. On that basis we believe that radio wave emissions that pass through the atmosphere from a base station to any solid component of the natural world are likely to affect one or more of the elements listed in subparagraph (a) or the…

For all of these reasons we conclude that "emissions" in both subparagraph (b) of the definition of environmental information and regulation 12(9) should be given its plain and natural meaning and not the artificially narrow one set out in the IPPC Directive. As we have indicated it is accepted, on that basis, that radio wave radiation emanating from a base station is an emission.

It’s really nice to spice up the court with some Planck/Maxwell wave/particle duality

The UK Bribery Act 2011 has just been given royal assent. Some of its offences covers British companies overseas.

s. 12 (5): An offence is committed under section 7 irrespective of whether the acts or omissions which form part of the offence take place in the United Kingdom or elsewhere.

 

s.7 Failure of commercial organisations to prevent bribery

(1) A relevant commercial organisation (“C”) is guilty of an offence under this
section if a person (“A”) associated with C bribes another person intending—
(a) to obtain or retain business for C, or
(b) to obtain or retain an advantage in the conduct of business for C.

Download the Original version of the Bribery Act here.

The Serious Fraud Office is in charge in enforcing these laws. There has been prosecutions involving Indonesian subsidiaries of an English companies in the past.

Detikcom reported that two Indonesians selling Ipad through the popular www.kaskus.us forum had been prossecuted. Indonesian consumer law Article 8(1) does prohibit business actors to sell computerware without equipping it with Indonesian language manual. Failure to comply entails a 5 year imprisonment. The law was, of course, meant to protect consumer. Sadly, it does not differentiate retail selling with direct selling. As a result, anyone wishing to sell their computer products through direct selling, will be liable for imprisonment, up to 5 years.

Kasus ini bermula ketika Dian dan Rendy menawarkan 2 buah Ipad 3G Wi Fi 64 GB di forum jual beli situs www.kaskus.us. Entah karena apa, tawaran ini membuat anggota polisi Polda Metro Jaya melakukan penyelidikan. Lantas, seorang anggota polisi, Eben Patar Opsunggu, menyamar sebagai pembeli. Transaksi pun dilakukan pada 24 November 2010 di City Walk, Tanah Abang, Jakarta Pusat.

Lantas, keduanya ditangkap polisi. Jaksa Penuntut Umum (JPU) Endang, mendakwa keduanya melanggar Pasal 62 Ayat (1) juncto Pasal 8 Ayat (1) Huruf j UU/ UU 8 Tahun 1999 tentang Perlindungan Konsumen karena tidak memiliki manual book berbahasa Indonesia. Lalu, Pasal 52 juncto Pasal 32 Ayat (1) UU Nomor 36/ 1999 tentang Telekomunikasi, karena I Pad belum terkategori alat elektronik komunikasi resmi. Ancaman pidana penjara paling lama 5 tahun penjara. Kasus ini masih berlangsung di PN Jakarta Pusat.

This is of course, an absolute stupidity, a barrier to trade, and probably a violation of human rights. Judges are expected to be wise when adjudicating this case, but as far as Indonesian judges are concerned, one cannot expect too much, even for something as trivial as this.