Australia: Parliament considering mandatory disclosure of payments by extractive companies to foreign governments

On 27 October 2014, the Australian Greens introduced a bill into the federal parliament that, if passed, would establish mandatory disclosure of payments made by Australian-based extractive companies to foreign governments. The bill is intended to improve transparency and accountability of Australian extractive companies and would bring Australian reporting standards for extractive companies in line with EU, UK and US standards.

The Corporations Amendment (Publish What You Pay) Bill 2014 would amend the Australian corporations law to require Australian public and large proprietary companies and their subsidiaries engaged in extractive industries such as oil and gas, mining and native forest logging to disclose payments to foreign governments of over AUD100,000 on a country-by-country and project-by-project basis in a dedicated report each financial year. These reports would be published on the Australian Securities and Investments Commission's website and accessible to the public. Any misleading reports would be subject to the current regime governing the accuracy of financial statements.

The Financial Services Council of Australia and the Australia Council of Superannuation Investors have welcomed the bill as providing a greater source of information for investment risk assessment.

A copy of the bill is available here. 

France: New measures to protect confidential business information

On 16 July 2014, a bill was introduced in Parliament, intended to remedy the absence of ad hoc legislation on the protection of confidential business information. Although French law protects manufacturing secrets, it has so far been silent on the broader issue of confidential business information. The protection of such information has so far depended on general concepts such as theft, breach of trust, industrial espionage, or breach of contractual confidentiality agreements, depending on the situation. However, none of these concepts actually ensured an adequate protection for all confidential business information.

Among other things, the proposed law provides:

  • the following definition of the notion of confidential business information: any information (i) that is not generally known or easily accessible to a person operating in a sector which usually deals with this kind of information, (ii) that is part of the scientific or technical potential, strategic position or commercial or financial interests of its owner and therefore has an economical value, and (iii) that is the object of reasonable measures of protection;
  • that the accessing or disclosure of confidential business information (or the attempt to do so) by an individual without authorisation, as well as making improper use of such information, is a criminal offence (délit) and may be punished by a fine of €375.000 and a three-year prison sentence. 

Hong Kong: Macau to legislate against bribery of foreign public officials

Amid the flurry of anti-corruption investigations and prosecutions by Mainland Chinese authorities against companies and public officials, Macau – one of China’s two Special Administrative Regions – is looking to extend its anti-corruption legislation to cover the bribery of foreign public officials and officials of public international organisations.

The “Regime of Prevention and Repression of Corrupt Acts in External Trade” Bill (available in Chinese and Portuguese only), which is currently undergoing scrutiny by Macau’s Legislative Assembly, would facilitate compliance with the United Nations Convention Against Corruption. China ratified the UN Convention in 2006 and the Convention applies equally to Macau and Hong Kong.   

According to the legislative brief for the Bill, the Macanese government regards it as highly important that it fulfils its obligations under the UN Convention by implementing appropriate legislative measures, in light of the increasing volume of cross-border and inter-governmental activities. The proposed offences under the Bill, which are modelled on Macau’s existing anti-bribery legislation, prohibit the offering or promising of monetary or non-monetary advantages to foreign public officials or officials of public international organisations in order to obtain or retain external trade transactions or other inappropriate benefits. “Foreign public officials” is defined to include any person who carries out or assists in carrying out executive or judicial duties for a foreign country or region. It also includes individuals who carry out duties for public enterprises, state-owned enterprises, enterprises which are majority-funded by the state and so on. “Officials of public international organisations” is also broadly defined and includes any person who is appointed to carry out, who carries out, or who assists in carrying out any activity for a public international organisation, regardless of whether he is remunerated for doing so. Corrupt acts conducted both in and outside Macau would be caught by the offences, provided that the person offering or promising the bribe is found to be in Macau.

The Bill also provides for corporate liability, although a firm might be able to rely on the statutory defence that the culpable individual was acting contrary to “clear orders or instructions” of the firm. The sanctions to which a firm might be subject are wide-ranging and severe and include criminal fines, court-ordered dissolution, ban from conducting specific activities for up to 10 years and permanent closure of business premises.  

It has been reported in the local media that the Bill is likely to be passed by the Legislative Assembly by the end of this year, although questions raised during the deliberation of the Bill regarding the extradition of the bribing parties who are outside Macau’s territory remain unanswered. 

Luxembourg: Digital data theft recognised in new law

Until recently the Luxembourg Criminal Code (the “Code”) did not recognise that digital data could be stolen and did not, therefore, sanction the theft of digital data.

However, the legislator has now adopted the law of 18 July 2014 on cybercrime, published on 25 July 2014, which amends the Code. This modification is essentially a response to the approval of the Council of Europe Convention on Cybercrime of 23 November 2001 and its Additional Protocol on the criminalisation of acts of a racist and xenophobic nature committed through computer systems, dated 28 January 2003.

In particular the law amends Articles 461 et seq. of the Code by introducing the notion of the “electronic key”, which includes passwords, digital signatures, certificates such as those of the Luxtrust type and digital identifiers. Thus, Article 461(1) now provides that whoever fraudulently removes an asset or an electronic key that does not belong to them is guilty of theft.

This initiative constitutes the first step towards the recognition of digital data theft and aims to protect computer systems, preventing the interception or attempted interception of digital data. The law can be seen as a response to profound changes brought about by the digitalisation, convergence and continuing globalisation of computer networks, with such networks being increasingly used to commit criminal offences.

As the recognition of digital data theft is a very recent phenomenon in Luxembourg law, case law is still scarce on the issue and actual trends remain difficult to establish. To date, the only public court judgment recognizing the theft of digital data was handed down prior to the introduction of the law of 18 July 2014.

In that case, (decision of 3 April 2014, no. 17/2014), the Luxembourg Court of Cassation recognised the illegal downloading of digital data as a criminal offence for the first time, holding that Article 461 of the Code, which sanctions the offence of theft, does not distinguish between the tangible and intangible nature of the asset that forms the subject of the theft.

However, it is arguable that the amendment to the Code could in fact be regarded as a restriction of the principles stated in this judgment. The Court of Cassation construed the term “asset” in article 461 of the Code as referring to both material and intangible assets. By adding the words “electronic key” to its definition, the Legislator now seems to be specifying the exact type of intangible data concerned. This is likely to reduce significantly the broader interpretation of the term "asset" originally provided by the Court of Cassation.