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Old wine in new bottles? Regulating employee social media use through termination of employment law: A comparative analysis 新瓶装旧酒？通过终止雇佣法规范员工社交媒体使用：比较分析
Common law world review Pub Date : 2018-11-14 DOI: 10.1177/1473779518807155
A. O'Rourke, A. Pyman, J. Teicher, Bernadine van Gramberg
{"title":"Old wine in new bottles? Regulating employee social media use through termination of employment law: A comparative analysis","authors":"A. O'Rourke, A. Pyman, J. Teicher, Bernadine van Gramberg","doi":"10.1177/1473779518807155","DOIUrl":"https://doi.org/10.1177/1473779518807155","url":null,"abstract":"The explosion in social media usage and ease of access to instant communication provided by new technologies presents employers and business with benefits and problems. The literature on new technologies and the workplace is replete with employer unease about employee use of social media. The most prominent of these apprehensions concern what has been described as ‘cyberslacking’ or ‘cyberloafing’, and reductions in concentration and workplace productivity. The most common employer response to these concerns is often to engage in employee surveillance or termination of employment. This article examines the latter response. It explores whether new legal principles are emerging from Courts, Tribunals and Commissions adjudicating social media and email dismissal cases or whether they are merely reframing existing laws to adapt to novel workplace situations. We use a comparative approach to address this question, comparing legal cases in Australia, Britain and America. The purpose of this article is to assess if there are any commonalities emerging between the three jurisdictions, or by contrast, whether the law is being shaped by the unique features of each jurisdiction.","PeriodicalId":87174,"journal":{"name":"Common law world review","volume":"47 1","pages":"248 - 271"},"PeriodicalIF":0.0,"publicationDate":"2018-11-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1473779518807155","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42078350","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 3
In search of a privacy action against breaches of physical privacy in Hong Kong 在香港就侵犯个人私隐的行为寻求私隐诉讼
Common law world review Pub Date : 2018-10-22 DOI: 10.1177/1473779518802571
J. Mo
{"title":"In search of a privacy action against breaches of physical privacy in Hong Kong","authors":"J. Mo","doi":"10.1177/1473779518802571","DOIUrl":"https://doi.org/10.1177/1473779518802571","url":null,"abstract":"The focus of privacy laws in Hong Kong has always been on the use and dissemination of personal or confidential information, but a person’s privacy can also be intruded by unwanted watching or listening irrespective of whether information is collected or used. Despite an attempt to introduce two privacy torts by the Law Reform Commission of Hong Kong in 2004, there is no timetable as to when these two statutory torts be introduced. Recognition has been afforded for intrusions upon seclusion or solitude in a number of jurisdictions including New Zealand and the Canadian province of Ontario. In England, an intrusion tort has not been separately recognized, but the decision in Gulati v MGN confirmed that damages may still be awarded for an action for misuse of private information in instances where there is no disclosure or publication of the wrongfully acquired information. This article looks at the possibility of developing a common law action of privacy in Hong Kong which affords protection regardless of whether private information is acquired or published by drawing insights to the developments in New Zealand and England.","PeriodicalId":87174,"journal":{"name":"Common law world review","volume":"47 1","pages":"225 - 247"},"PeriodicalIF":0.0,"publicationDate":"2018-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1473779518802571","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46332986","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Millar v Taylor as a precedent for statutory interpretation 米勒诉泰勒案作为法律解释的先例
Common law world review Pub Date : 2018-09-01 DOI: 10.1177/1473779518793843
J. J. Magyar
{"title":"Millar v Taylor as a precedent for statutory interpretation","authors":"J. J. Magyar","doi":"10.1177/1473779518793843","DOIUrl":"https://doi.org/10.1177/1473779518793843","url":null,"abstract":"Millar v Taylor is an iconic case for statutory interpretation. It has long been regarded as the case in which the rule prohibiting reliance on legislative history was first put forward by Mr. Justice Willes in 1769. However, a close reading of the judgment reveals an uncomfortable fit between the rule that the case purports to stand for and the judicial reasoning within it. Meanwhile, the case was cited frequently throughout the 19th century, but never in support of the exclusionary rule. During that time period, the judiciary was aware of the fact that Mr. Justice Willes’ famous statement was contradicted by reasoning in the case. It was in the 20th century that scholars began citing Millar v Taylor in support of the exclusionary rule—a time when the quantity of published cases and secondary literature had increased significantly, and cases like Millar v Taylor were being cited without necessarily being read. This stands as a cautionary tale: one ought to quote with care, particularly when citing older cases.","PeriodicalId":87174,"journal":{"name":"Common law world review","volume":"47 1","pages":"217 - 221"},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1473779518793843","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45926628","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Contract variation in the common law 普通法中的合同变更
Common law world review Pub Date : 2018-09-01 DOI: 10.1177/1473779518792471
James C. Fisher
{"title":"Contract variation in the common law","authors":"James C. Fisher","doi":"10.1177/1473779518792471","DOIUrl":"https://doi.org/10.1177/1473779518792471","url":null,"abstract":"This note analyses the UK Supreme Court’s decision in Rock Advertising Ltd v MWB Business Exchange Centres Ltd, a case that confirms the long uncertain ability of ‘No Oral Modification’ clauses to exclude informal variations in English law. This note argues that, while the Court was correct to reject the putative oral variation in question, the majority’s description of the law is unsatisfactory because of its detachment from wider contract law principle, and compares unfavourably with the alternative ratio by which Lord Briggs reached a concurring outcome. This note also comments on the Supreme Court’s (cursory) treatment of the portentous Court of Appeal decision in Williams v Roffey Bros, which has reformulated the law on contract variation across common law jurisdictions. The Court acknowledged, but declined to resolve, the tensions Roffey introduced in to the law on part payment of debts. While it is unfortunate that the opportunity to resolve these tensions was missed, this note endorses the Court’s (obiter) rejection of the analysis by which the Court of Appeal below sought to extend Roffey to the part payment of debts.","PeriodicalId":87174,"journal":{"name":"Common law world review","volume":"47 1","pages":"196 - 207"},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1473779518792471","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49166782","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 3
Time extended, discretion expanded 时间延长，自由裁量权扩大
Common law world review Pub Date : 2018-09-01 DOI: 10.1177/1473779518791129
M. Lau
{"title":"Time extended, discretion expanded","authors":"M. Lau","doi":"10.1177/1473779518791129","DOIUrl":"https://doi.org/10.1177/1473779518791129","url":null,"abstract":"In the latest saga of the Astro v First Media litigation, the Hong Kong Court of Final Appeal (HKCFA) allowed First Media’s out-of-time challenge against enforcement of New York Convention arbitral awards rendered in favour of the Astro Group. This note critically analyses the Court of Final Appeal’s decision. It argues that there was no compelling reason to reject the structured approach as adopted by the lower courts. This is because, on a correct reading of the said approach, it could accommodate the very concerns that troubled the HKCFA. Meanwhile, the ‘overall justice’ test as adopted by the HKCFA lacks guidance power and its application to the facts was questionable. To this end, it is argued that, as and when similar issues arise in other jurisdictions, a careful judgment would have to be made as to whether the Hong Kong approach should be followed.","PeriodicalId":87174,"journal":{"name":"Common law world review","volume":"47 1","pages":"208 - 216"},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1473779518791129","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41381594","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Joint bank accounts and survivorship 联合银行账户和存续
Common law world review Pub Date : 2018-09-01 DOI: 10.1177/1473779518791768
K. Stanton
{"title":"Joint bank accounts and survivorship","authors":"K. Stanton","doi":"10.1177/1473779518791768","DOIUrl":"https://doi.org/10.1177/1473779518791768","url":null,"abstract":"Who is beneficially entitled to the money deposited in a joint bank account? In the great majority of cases, it is clear that the money is jointly owned and will pass on the death of one of the account holders to the survivor. However, things are not always simple and the law then has to decide as to the ownership of the money in a dispute between the surviving account holder and the estate of the deceased. The decision of the Judicial Committee of the Privy Council in Whitlock v Moree, a case on appeal from the Court of Appeal of the Bahamas is the latest decision on this topic.","PeriodicalId":87174,"journal":{"name":"Common law world review","volume":"47 1","pages":"162 - 166"},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1473779518791768","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42368574","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Navigating through the effects of ‘Cracked Trials’ 浏览“破解试验”的影响
Common law world review Pub Date : 2018-05-23 DOI: 10.1177/1473779518761019
K. Cheng
{"title":"Navigating through the effects of ‘Cracked Trials’","authors":"K. Cheng","doi":"10.1177/1473779518761019","DOIUrl":"https://doi.org/10.1177/1473779518761019","url":null,"abstract":"‘Cracked trials’ have been identified as a major problem in the criminal justice process, causing wastage of resources and time for all parties involved. The sliding scale of sentence discounts was implemented in England and Wales to tackle the problem of ‘cracked trials’ through providing the greatest amount of sentence reduction for earlier guilty pleas and thereby discouraging defendants from entering late guilty pleas. The sliding scale has been recently implemented or is being considered by other common law jurisdictions. This article examines how legal practitioners in Hong Kong have navigated around the adverse effects of cracked trials prior to the implementation of the sliding scale and argues how the sliding scale of sentence discounts is problematic. The findings offer insights regarding strategies and reforms on other aspects of the criminal procedure in responding to late guilty pleas.","PeriodicalId":87174,"journal":{"name":"Common law world review","volume":"47 1","pages":"136 - 149"},"PeriodicalIF":0.0,"publicationDate":"2018-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1473779518761019","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45080527","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 3
Restoring transactions unknowingly tainted by insider trading 恢复在不知情的情况下被内幕交易污染的交易
Common law world review Pub Date : 2018-05-11 DOI: 10.1177/1473779518773646
Martin Kwan
{"title":"Restoring transactions unknowingly tainted by insider trading","authors":"Martin Kwan","doi":"10.1177/1473779518773646","DOIUrl":"https://doi.org/10.1177/1473779518773646","url":null,"abstract":"In the Hong Kong Court of Appeal decision The Securities and Futures Commission v Young Bik Fung and others, the Court applied s. 213(2)(b) of the Securities and Futures Ordinance (SFO) to restore two transactions of shares entered into by an investor who invested based on ‘information, advice or tips’ given by an insider, despite the investor did not know that the advice was based on inside information and was not guilty of insider trading. Nevertheless, the investor was ordered to repay the profits made as if the transactions had not been made. It is suggested that the restoration order in Hong Kong has the widest scope of application among the major common law jurisdictions, because Hong Kong is the only jurisdiction where a person who has not committed any market conduct can nevertheless be subject to a restoration order. The Court justified such wide scope of application with reference to the paramount policies of minimizing market misconduct and ensuring no benefits is obtained from insider dealing by anyone. By a comparative law analysis, it is argued that s. 213(2)(b) SFO has been wrongly interpreted. The paramount policies should not be blindly applied without giving proper consideration to other established principles of law, such as the fundamental right to property of the unknowing investor.","PeriodicalId":87174,"journal":{"name":"Common law world review","volume":"47 1","pages":"150 - 159"},"PeriodicalIF":0.0,"publicationDate":"2018-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1473779518773646","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41420936","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Attempting constitutional reform on the island microjurisdiction of Alderney 试图对奥尔德尼岛的微型司法管辖区进行宪法改革
Common law world review Pub Date : 2018-05-11 DOI: 10.1177/1473779518776212
Caroline Morris
{"title":"Attempting constitutional reform on the island microjurisdiction of Alderney","authors":"Caroline Morris","doi":"10.1177/1473779518776212","DOIUrl":"https://doi.org/10.1177/1473779518776212","url":null,"abstract":"Research into state size and democracy has revealed that the very smallest states are more likely to be democratic than their larger counterparts. Being an island, as well as having a British colonial past, is also associated with a state’s observance of democratic measures. With these observations in mind, this article examines an unsuccessful attempt to reform the political and constitutional governance of the Channel Island of Alderney, a self-governing dependency of the British Crown. Why was political reform rejected on this island microjurisdiction? Was the post-Brexit agenda too crowded to permit reform? Did Alderney have other priorities? Might smallness itself be the explanation?","PeriodicalId":87174,"journal":{"name":"Common law world review","volume":"47 1","pages":"105 - 135"},"PeriodicalIF":0.0,"publicationDate":"2018-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1473779518776212","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42641600","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Revisiting the viability to allow dual-class share structure companies to list in the financial market of Hong Kong 检讨允许双重股权结构公司在香港金融市场上市的可行性
Common law world review Pub Date : 2018-04-24 DOI: 10.1177/1473779518791769
J. Ho
{"title":"Revisiting the viability to allow dual-class share structure companies to list in the financial market of Hong Kong","authors":"J. Ho","doi":"10.1177/1473779518791769","DOIUrl":"https://doi.org/10.1177/1473779518791769","url":null,"abstract":"The request of Alibaba, China’s largest e-commerce company, to allow a self-selected group of its past and present management known as the ‘partners’ the right to nominate a majority of the directors in its negotiation with the Hong Kong Stock Exchange (HKEx) for an initial public offering (IPO) in 2013 reignited a new round of debate over the one share, one vote policy, which has survived for three decades in Hong Kong. Alibaba’s IPO application to list on the HKEx was eventually rejected which ultimately led to the company’s decision to list on the New York Stock Exchange. In late 2017, the debate on whether companies with dual-class share (DCS) structure should be allowed to list in Hong Kong re-emerged as the HKEx has announced that it would amend its listing rules to enable companies with DCS structure to list on its exchange, subject to certain safeguards and restrictions. This article examines what measures Hong Kong could adopt to allow companies with DCS structure to list on its exchange despite legal and institutional shortcomings of its financial market. In doing so, it will also make reference to other major financial markets in the world and examine how other jurisdictions have handled the issue of DCS structure companies.","PeriodicalId":87174,"journal":{"name":"Common law world review","volume":"47 1","pages":"167 - 195"},"PeriodicalIF":0.0,"publicationDate":"2018-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1473779518791769","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42035651","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
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