Columbia Global Freedom of Expression seeks to contribute to the development of an integrated and progressive jurisprudence and understanding on freedom of expression and information around the world.  It maintains an extensive database of international case law. This is its newsletter dealing with recent developments  in the field.

Community Highlights and Recent News

● David Kaye, UN Special Rapporteur on freedom of opinion & expression, presented his latest report to the UN General Assembly  which found governments and Internet companies fail to meet the challenges of online hate. He calls on governments and companies to move away from standardless policies and inconsistent enforcement, and to align their laws and practices against ‘hate speech’ with international human rights law.

● Democratising Online Content Moderation: A Constitutional Framework. Global Freedom of Expression legal researcher Giovanni De Gregorio argues that existing protections for the right to free speech are no longer sufficient to safeguard democratic values in the digital environment, since the flow of information is actively organised by business interests. Consequently, new user rights in relation to online content moderation must be established based on transparency and accountability by online platforms.

● Accountability Of Google And Other Data-driven Business Models: Data Protection In The Digital Age. Now available, in English, is Dejusticia’s working paper which analyzes the privacy policies of 30 companies with data-driven business models in Colombia. The paper also explores the degree of preparedness of Colombia’s personal data protection legal regime and data protection authorities for tackling the risks that the digital era poses to different values and rights, in an effort to hold companies accountable.

Decisions this Week

Attorney General v. Trapence
Decision Date: September 30, 2019
The Supreme Court of Appeal of Malawi ruled that a series of protests could continue despite violence and criminality that had marred previous ones. Political opposition leaders challenged the May 2019 contentious election results in court, arguing that there were vote-counting irregularities. Subsequently, a civil society organization convened mass demonstrations calling for the resignation of the chairperson of the Electoral Commission. These demonstrations turned violent and the Attorney General sought an injunction to ban further demonstrations until the issue of violence had been resolved and the opposition leaders’ court challenge had been finalized. The Supreme Court ruled that it was not the sole responsibility of demonstration convenors to ensure non-violence during demonstrations and rejected the Attorney General’s statement that the police lacked resources to ensure safety of the public and property around the demonstration

Google LLC. v. Audiencia Nacional
Decision Date: January 11, 2019
The Supreme Court of Spain recognized the right to be forgotten of a public official whose name appeared in Google’s search results related to partially inaccurate facts published by the newspaper El País. In 2007, El País published an article claiming that the official participated in an illegal wild boar hunt for which he was fined.  The official successfully appealed the fine, and subsequently sought to de-index El País’ article from Google’s search results. Google refused citing freedom of information. The Supreme Court ruled for the official, arguing that in this case, the right to the protection of personal data superseded the right to information because the content of the search result was inaccurate.

The Frontier of Expression: Russia and Central Asia

The Russian Supreme Court released data showing a steep decline in convictions for incitement to extremism under Article 282 of the Criminal Code. 27 persons were convicted in the first half of 2019 compared to 249 during the same period in 2018. Article 282 has long been abused to prosecute individuals critical of the government. Overall, there were 195 convictions under various anti-extremism laws in 2019, still a significant number but on track to be lower than the 731 convictions in 2018. Partial decriminalization of article 282 earlier this year is responsible for the decline. Regrettably, the positive news is overshadowed by a large number of prosecutions under the new law prohibiting insult of the government and public officials, as well as mass arrests of participants in summer protests in Moscow.

In September 2019, unidentified individuals leaked a sex-video involving a female human rights activist. She immediately filed a criminal complaint but earlier this week reported that the authorities have yet to even review it. Tajik human rights advocates believe that the activist was targeted in reprisal for her key role in opposing the government’s price hike for internet services. The activist seems to have been specifically targeted for the purposes of recording this video. She recalls that her partner in the video courted her extensively, but disappeared soon after the video was leaked. The video itself was recorded using a hidden camera and released with the man’s face blurred. Although the video has been taken down, the activist remains traumatized. Female human rights defenders, journalists and activist are particularly exposed to sex-based harassment. Khadija Ismayilova, a prominent journalist from Azerbaijan, another post-Soviet state, was also subject to a sex-tape smear campaign. In January 2019, the European Court of Human Rights held that the Azerbaijani authorities failed to investigate the origins of the covertly recorded sex video and threats that followed.

Post Scriptum

● China’s Surveillance State has Tens of Millions of New Targets. The October edition of the China Media Bulletin documents the rise of surveillance technologies and collection of personal data retention in China as well as the proliferation of those technologies to countries such as Brazil, Malaysia, Tanzania, Poland, and South Korea. The Bulletin concludes that “[g]iven the pace at which such dystopian tools of mass repression have proliferated within China, democratic actors should waste no time in halting their spread before they become a fact of life around the world.”

This newsletter is reproduced with the permission of Global Freedom of Expression.  For an archive of previous newsletters, see here.