Hogan Lovells advises Timberland Investment Resources Europe

Hogan Lovells has assisted Timberland Investment Resources Europe (TIR) in setting up its second investment vehicle in Luxembourg.

The firm helped TIR, one of the few private investment management firms that offers investment solutions in the forestry sector, to set up a Reserved Alternative Investment Fund (RAIF). The Hogan Lovells team advised on the initial structuring of the fund, including tax, through to the first closing of the fund, which occurred in January 2020 for circa EUR 75 million. The current target is to double this amount by the end of the year.

This fund is one of a few on both sides of the Atlantic investing in timberland and forestry assets.

This work shows the client’s continuous trust in Hogan Lovells. The firm previously advised TIR on the launch of their first Luxembourg fund (TIR Europe Forestry Fund) in 2016.

The Hogan Lovells Luxembourg team was led by Pierre Reuter (partner) and included Simon Recher (associate), Mathilde Soetens (trainee), with support from the London team led by Erik Jamieson (partner) and Ollie Phillips (associate). On the tax side, the team included Gérard Neiens (partner), Jean-Philippe Monmousseau (counsel), Pierre-Luc Wolff (senior associate), and Grâce Mfuakiadi (associate).

The impact of defamation and privacy on social media

We are frequently asked the question: are we allowed to publish, post, republish any information, content, picture, video or data on COVID-19 when using our private social media accounts? After all, it is in the public interest and everyone is doing it!

In an era where often more questions arise than answers, the public is eager to read, share and explore everyone’s views on a particular topic. Whether you are journalists or reporters providing professional coverage, business owners responsible for your employees’ conduct, family members responsible for your children or dependants’ actions, we all need some guidance and practical answers, in order to be aware of the legal implications of how we use our social media.

Whilst naturally we are all expressing and discussing our thoughts on the impact of COVID-19 (and given the Governmental advice of self-isolation, this communication is largely via the internet), it is important to be aware of the potential legal implications that the dissemination of information and expressions of opinion or fact could have in the UAE.

Within the contents of this short article, we will outline the key points which individuals should be aware of before submitting and/or disseminating information, pictures, posts or any audio, audio-visual or written material regarding COVID-19 into the public domain. The points covered by this article are applicable to individuals, , patients, advice, corporations or any other form of information. The two major risks can be broadly summarised as an i) Invasion of Privacy and ii) Defamation.

Privacy. The right to a private and dignified family life is considered inherent in the UAE and is appropriately safeguarded by numerous applicable laws and regulations. The disclosure of information or secrets relating to someone’s private or family’s life will attract liability under the Penal Code, the Cyber Crimes Law as well as laws related to media and publications in UAE, if no prior consent is obtained from the individual. This can include an image, photo, short videos or any materials that expose individual(s) to the public without their consent, even for the purpose of public awareness.

To put this into the context of COVID-19, to expose an individual as exhibiting symptoms or as having the virus is likely to be interpreted as an invasion of an individual’s right to a private life. Furthermore, to take a picture of another person(s) in a public place and ‘disseminate it’ by publishing it online could also be interpreted as an invasion of privacy.

The UAE Criminal Court of Cassation issued a binding court judgement in relation to privacy laws in 2016, where it affirmed the imposition of serious sanctions against all entities involved in publishing content that violates the privacy of individuals. The individuals, in this case, were walking in public areas (commercial malls) yet, they were filmed without their consent and this subsequently raised a claim for the invasion of privacy. The sanctions imposed by the Court of Cassation as a result of this invasion of a right to a private life included fines and deportation from UAE territory.

The fundamental point is that patients (including their family members), children, names, images, medical situations or related data, can all be classified as private information, which is exclusive owned by the individual concerned The disclosure of this information, in any form, should be carefully reviewed and assessed, in order to mitigate any potential risk. It is important that Employers or Individuals with dependants, raise awareness on the implications of reporting on social media platforms in respect of the applicable laws to ensure no violation, even if unintentional, occurs. Ignorance of the law or lack of intention to violate another’s right to privacy is not an excuse. It should be noted that simply re-sharing what someone else has shared or published will not exempt an individual or entity from liability.

We have observed a high level of professionalism and adherence with the applicable laws and the third parties rights of media service providers, including TV channels, radio stations, online newspapers and other mediums. This is apparent from all the reports and audiovisual content that we are receiving in relation to COVID-19. We have also witnessed reliable content on the topic that provides sufficient information to public and corroborates with official sources.

Defamation. Defamatory or libellous posts on social media could result in defamation claims under the applicable laws in the UAE. Whilst the creation and dissemination of parodic posts and content is a common occurrence in the UK and Europe, it is important to be aware that parody is not an available defense under UAE Law. Instead, it is more likely that a parody may be seen as an attempt to humiliate an individual or an entity and to harm their reputation, no matter how ridiculous the parody is.

More recently, an exception to this rule was passed in the UAE in DIFC Intellectual Property Law number 4 of 2019, in which it is considered that a registered Trademark, or a well-known Trademark, is not infringed in the DIFC if it is used in news reporting, news commentary or parody. However, this exception is specifically limited to DIFC and in relation to trademarks. This shows a willingness for parodic content to be recognised in the future, but for now, the public should be aware that parodic content, could be pursued by the concerned individuals and/or entities in UAE under the applicable defamation laws. To put this into context, any posts relating to patients, medical staff members, law enforcement agencies or the public reacting to incidents of public interest can be subject to legal liability. Defamation criminal liability is pursuable within a strict time bar from publishing defamatory content. However, civil liability and invasion of privacy criminal claims can be longer than defamation offenses.

It is worth reminding everyone that in accordance with articles 372 and 373 of UAE Federal Law No. 3 of 1987 in UAE (as amended), a defamatory statement is one that exposes a person to public hatred or contempt, even if the statement is true and correct. This means that a person is potentially exposed to a claim for defamation by publishing or disseminating any negative news about an individual or an entity. If the defamatory statement is made against a public officer or governmental entity, the imposed sanction could be significantly worse.

Based on the above, an individual, before communicating an opinion, posting or sharing any videos in relation to COVID-19, by whatever method of communication, should consider:

  1. Could this statement be interpreted as defamatory or an invasion of privacy for others? (i.e. does this statement suggest anything negative about an individual or entity in particular? Does it reveal any information or post any material regarding someone that can be classified as private content, a private location and/or unsuitable for public display); and
  2. Could this statement, post or content cause harm? (particularly to reputation and honour to an individual or entity, on a national and international basis).

We should all be aware that the protection of privacy, for the data of patients, defamation, cyber-crimes and all other related legal provisions in UAE are going to be likely reviewed and subject to enforcement proceedings should any violations be revealed. The priority now is for public safety but authorities and concerned individuals will be monitoring and documenting posted content that may be revisited in the future to explore any legal liabilities.

On a final note, social media platforms are extremely beneficial to the general public as they enable the transmission of awareness, encourage the freedom of speech and facilitate communication on an international basis, at a time where countries are shutting their borders and encouraging people to isolate. For example, the level of awareness that people gained on COVID-19 in such a short period is unprecedented. However, users should be aware that social media platforms are not private and the misuse of such platforms by sharing any content, statement or image that they come across, is subject to appropriate sanctions. Freedom of speech is granted and protected so long as it is in compliance with local regulations and public orders.

Dubai Courts Postpone all Judicial Hearings

Dubai courts in its Resolution No. (30) of 2020 issued on March 17, 2020 concerning the adjournment of judicial hearings and working remotely (the “Resolution”) decided on postponing all judicial hearings for the Court of Cassation, the Court of Appeal, and the First Instance Courts, and suspending testimonies and documentation of personal status from Sunday 22/03/2020 until Thursday 16/04/2020.

Some exceptions were made in the Resolution to the consideration of cases of temporary and urgent matters, online requests, criminal cases and appeals that include detainees and inmates.

The Resolution called on all court judges to file judgements at their specified sessions during the postponement period.

In a move to maintain the continuity of work, the Resolution activates a trial remote working system with a phased approach. In the first week, a maximum of 30% of the workforce can work from home. For the second week and thereafter, the management of the courts will continually assess how things are progressing and will allow working from home to apply up to a maximum percentage (not specified) of staff, which is higher than 30%. The Resolution also notes that it is of paramount importance during the remote working that the privacy and confidentiality of cases is in no way compromised.

The Resolution also specifies that employees from different disciplines and job grades are included in the trial with the possibility that employees exchange system implementation periodically to ensure business continuity in organisational units. And that work in various sectors is normal and that no services are stopped and to maintain the commitment of the employees to the standards and controls stipulated in the information security system for the Emirate of Dubai and approved by the Dubai Electronic Security Center, especially the sub-officer, remote entry security.

The Resolution also gives priority in applying the system to pregnant women, the elderly, people of determination and workers who suffer from chronic diseases related to the respiratory system or those that cause immune deficiency.

The Resolution called on all attendees not to visit the courts in person for all claims and requests services that can be submitted and followed up through the electronic and smart systems of courts and on all concerned authorities to follow up the implementation and take the necessary measures as of its date.

Can employers terminate employees due to COVID-19?

With the recent outbreak of the COVID-19 Virus, the hardest hit are establishments within the hospitality, F&B and retail industry, with many restaurants, gyms and many other businesses being forced to shut their doors temporarily or at least downscale their production and/or services drastically.

The greatest expense for most businesses is the payment of employee salaries. In circumstances where businesses are sometimes not operating and employees are not working as a result of the COVID-19 outbreak and the resulting measures adopted by the UAE government, certain queries arise.

BSA provides answers to these queries in an effort to allow employers/businesses to curb their losses and employees to know their rights.

Employment provisions relating to the COVID-19 outbreak

At the outset, it is important to note that, to date, no special provisions/exceptions have been implemented to govern the relations between (1) the establishments that have been affected by the mandatory closures relating to the COVID-19 outbreak (or any establishment facing the direct/indirect repercussions of the pandemic); and (2) their employees.

BSA has reached out to the MOHRE and they have confirmed that their stance thus far is that the COVID-19 outbreak has not been declared a force majeure event and in the absence of special provisions relating to the exceptional measures taken as a result of the COVID-19 outbreak, the status quo remains and both employers and employees will be bound by their rights and obligations as outlined in Federal Law no. 8 of 1980 (as amended) (the ‘Labour Law’) and their relevant employment agreements.

In light of this unprecedented global pandemic, it is preferable for employers and employees to enter into discussions, negotiate and agree upon terms that are acceptable to all parties involved.

Can an employer terminate an employee under the current circumstances resulting from the COVID-19 pandemic?

Yes, however, such employer will be at risk of facing arbitrary dismissal claims.

In the absence of specific provisions adopted as a result of the COVID-19 outbreak, employers can terminate their employees, however, such terminations will be governed by the provisions of the Labour Law and the relevant employment contract(s). Any such employers will likely be required to settle the employees’ dues (including but not limited to payment in lieu of notice) and will be at risk of facing arbitrary dismissal claims. In circumstances where the COVID-19 has not been declared a force majeure event, employers will need to assess this risk in light of the Labour Law.

The same rules will apply as regards limited term employment contracts given that the Covid-19 outbreak has not yet been deemed a legitimate justification for termination. As such, if an employer terminates an employee as a result of the COVID-19 pandemic, the termination will be considered to be without cause and the employer may be held liable for compensating the employee.

Can an employer compel its employees to take unpaid leave?

No.

In light of the COVID-19 outbreak and resulting mandatory closures, many employers are likely to attempt to avoid payment of their employees’ salaries and consider their absence as ‘unpaid leave’.

Any such attempt will be considered unlawful under the Labour Law as employers are not permitted to ‘freeze’ the employment of their personnel for a set period of time.

Unless the parties agree that the employee will be taking an unpaid leave, an employer’s instruction to enforce unpaid leave on his employees will constitute a breach of the Labour Law (as outlined above) and the contract given that the employer will be failing to pay the employee’s salary (in accordance with the terms of the employment contract).

Can an employer compel its employees to take their annual (paid) leave during the COVID-19 outbreak?

The general principles embodied in Article 76 of the Labour Law state that the employer may determine the date of the commencement of the annual leave, and may divide it if necessary, to two or more periods. This right has been given to employers since they are the responsible persons who are aware of the volume of work being undertaken by the company, and also to determine the priority as to when the work must be executed. This right is given with a view to prioritise continuity of work. In view of this principle, the converse is also applicable during this period of slowdown caused by the outbreak of COVID-19, where there is a discontinuity of work. Therefore, given the above information, the employer can determine the date of commencement of an employee’s annual leave during the COVID-19 outbreak.

Can an employer impose a salary reduction?

No.

Should an employer perform any deduction of salaries outside the scope of Article 60 and the employment contract, an employee can seek the recovery of any deducted amount(s) before the competent labour courts.

In a context of cooperation during these unparalleled circumstances, parties may wish to agree upon a structure suitable for both the business, which is likely to be facing financial difficulties arising out of the COVID-19 outbreak, and its employees, who need to be paid their salaries, in an effort to avoid mass terminations as a result of the pandemic.

Is there a moratorium on salary payments?

The MOHRE has confirmed that at this point, the status quo remains, notwithstanding the COVID-19 outbreak. As such, there is no moratorium on the payment of salaries and employers must continue with making salary payments unless the employment contract provides otherwise.

The peculiarity of the situation will undeniably need to be considered by labour courts when hearing employment cases arising out of the COVID-19 outbreak.

Taking affirmative steps now is especially important as companies currently can foresee and attempt to mitigate any potential operational impacts in advance of the outbreak spreading to any new locality. Ideally, businesses will be able to plan accordingly to avoid any disruptions in their operations if the virus continues to spread.

We urge individuals and businesses to seek legal advice as to their existing and future contracts with the above information in mind.

Brazilian ports and navigation remain in operation, reports ANTAQ

In view of the worsening of the coronavirus epidemic in Brazil, the country’s port terminals have reinforced the security measures and containment of the spread of Covid-19, according to guidelines from health authorities and the federal government. However, there is already a concern about possible logistical bottleneck due to the crisis.

The first fear is the very need to dismiss employees. Industry officials and executives have reiterated that there is no forecast for any port terminal shutdown, as occurred in China. The standard measure has been to implement remote work for administrative areas, release employees from risk groups and expand precautionary measures for those who work directly in the port operation.

Agribusiness & Port Logistics

A letter signed by almost 50 entities representing agribusiness segment was addressed on Wednesday, 18, to the President of the Republic, Jair Bolsonaro, and to the Minister of Infrastructure, Tarcísio Gomes de Freitas, requesting support from the federal government to guarantee the functioning of the national port logistics amid the coronavirus crisis.

Public & Private Ports In Operation

The National Waterway Transportation Agency (ANTAQ) announced today, 20, that public (including delegates), private and other port facilities remain in operation, as well as coastal and long-haul transportation activities.

In a note, ANTAQ clarified that only the Union will be able to determine the closure of port facilities in all Brazilian states or the suspension of service provision on interstate and international waterway transportation lines. The legal basis is Article 22, item X, of the Federal Constitution, and Ordinance 125, of March 19th, 2020, of the Presidency of the Republic.

“At the moment, the unrestricted suspension of passenger transport is not a measure indicated by the National Health Surveillance Agency (Anvisa). The complete suspension of this service could harm access to medical care, the displacement of health professionals, the supply of vaccines , supplies and medicines for the Brazilian states,” added ANTAQ in its statement.

Cabotage

The Brazilian Association of Cabotage Shipowners (Abac) reported that the modal remains active. The companies associated with Abac have taken actions to protect their employees and contribute to the prevention of the contagion of Covid-19, following the guidelines of the country’s health authorities. The measures safely guarantee the continuity of cabotage services, always within the principles of preventing and maintaining the supply of products to society.

Santos Port

On Wednesday, operation in Santos Port was threatened due to a possible halt of the stevedores work, who even sent a letter to the authorities announcing their decision to stop working. The situation was, in principle, contained in a meeting between port authority, representatives of companies and unions.

The Santos Port Authority (SPA) published a note stating that maritime and road access are “open without any restrictions” and that it “acts to guarantee the full functioning” of the port. The agency has taken security measures since the beginning of the crisis.

Container terminals DP World, Santos Brasil and Brasil Terminal Portuário (BTP) have reinforced their security measures and dismissed employees, but said there is no impact on activities.

The port operation could also be impacted in other ways, in addition to an employee stoppage itself. One of the concerns, for example, is in relation to the release of the cargo by inspection agencies, such as the Federal Revenue Service, the Ministry of Agriculture or the National Health Surveillance Agency (Anvisa), which need to verify imports.

The fear is that, with the delay, a huge queue will be generated. For now, the operations proceeds normally.

According to the president of Portos do Paraná, Luiz Fernando Garcia da Silva (who manages Paranaguá and Antonina), there is no forecast of an impact on the operation in the State, “unless there are mobility problems, as there was in China”. At the height of the crisis in the Asian country, one of the bottlenecks for cargo transport was the restriction of truck drivers, who interrupted activities.

According to the National Association of Cargo Transport and Logistics, it is too early to say whether there will be an impact on cargo transport, which will depend on the worsening of the epidemic. In March, the assessment is that the movement has been positive, driven by the soybean harvest.

In general, the assessment of executives and analysts about the current scenario is highly uncertain, and the forecasts seem to change every day. The fear – and the main scenario to be avoided panic, that could lead to a complete halt in activities and logistical chaos in the country.

Stevedores Union threatening to stop working in Santos Port

At a meeting held at the headquarters of the Union of Stevadores of Santos, São Vicente, Guarujá and Cubatão (SOPESP), which was attended by all the presidents of the professional unions, a series of measures was decided on the operational continuity of the Port of Santos, last Tuesday (17th).

The Union sent a letter to the National Secretariat of Ports and Waterway Transport expressing the need for a complete halt of operations in the Port of Santos, starting this Wednesday, 18th, due to the worsening of the pandemic generated by the Coronavirus in Brazil.

In the letter, the union president stressed that stevedores are exposed to high risk, since they work on the front lines and are subject to high contamination, because the vessels come from countries facing the pandemic. The Stevedore Union added that most federal, executive, legislative and judicial bodies have stopped their physical operations.

According to the chairman of the management board of the São Paulo State Secretariat for Logistics and Transport, Roberto Giannetti, “stopping the port of Santos would be putting millions of Brazilians at risk, since supply could stop between 60 and 90 days if the strike was declared “.

This means that many industrial inputs and imported basic consumer products could go into shortages, especially of hospital medical supplies essential for the crisis period. It is worth mentioning that the Government has determined that a series of medical products import tax will be lowered to zero and they will have priority treatment in customs clearance procedures.

Santos Port Authority (SPA) highlighted, in a note, that, together with the port community, it acting to guarantee the full functioning of the Port of Santos, respecting the determinations of the Health authorities.

There will be even more negotiations between the stevedores in order to reach a final understanding. Meanwhile, all port activities continue to be carried out normally.