Global Freedom of Expression, Columbia University: Newsletter

7 12 2019

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

● A group of prominent Arab activists, artists and academics released an open letter  stating say they no longer view Twitter or Facebook as safe platforms due to recent data breaches and increased investment by authoritarian regimes into the companies. They call on the social media companies to “step up and fulfill their moral and legal obligations” to protect user data and the lives of their users, and to re-evaluate and strengthen their policies. The Activists will set up an advocacy team for the protection  of  social  media  users  in  the  Arab  world; a legal team to support  victims  of  data  breaches; a technical  team  to  protect  users’  online  privacy; and a media team to carry  out  awareness  campaigns.

● SMEX has released its latest report: ‘Analysing Freedom of Expression in Lebanon in 2018’ which demonstrates how the court, authorities, and powerful public figures continue to restrict the right to free expression in the country. The state uses articles in the Penal Code, Military Justice Code, and Publications Law to silence criticism of politicians, challenges to private sector projects detrimental to public good, and satirical posts about religious figures. Through their observatory for freedom of expression online, Muhal, they have tracked 56 cases related to online free expression to date – 20 more than in 2018.

● A personal-injury lawyer in Houston, Annie McAdams, is waging a legal assault against Facebook and other tech companies, accusing them of facilitating the sex trafficking of minors and challenging Section 230 of the Communications Decency Act in the process. She argues that Social Media companies must do more to warn users of risks and to prevent online exploitation. The New York Times reports that Ms. McAdams’s lawsuits are part of a broader, yearslong effort to use the courts to upend how the 23-year-old law governs the internet.

Decisions this Week

United Kingdom
Gilham v. Ministry of Justice
Decision Date: October 16, 2019
The Supreme Court of the United Kingdom ruled that the Employment Rights Act 1996 (the Act) should be read and given effect so as to extend its whistle-blowing protection to the holders of judicial office. District Court Judge Gilham sought protection under the Act after suffering retribution for submitting a formal grievance documenting negative impacts of severe budget cuts on the functioning of the court system. The Employment Tribunal, the Employment Appeal Tribunal, and the Court of Appeal all declined to extend protections on the ground that judicial appointees did not fit the definition of “workers” under the Act. Although the Supreme Court agreed with that determination, it found that the facts clearly pointed to a violation of her freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). Therefore, the exclusion of judges from whistle-blower protections was in breach of the prohibition of discrimination under Article 14 read with Article 10 of the ECHR. Finding no legislative conflicts, the Supreme Court ruled judges should be included as “workers” under the Act and that Gilham was entitled to her claim.

Republic of North Macedonia
Zefic and Toshkovski v. The State
Decision Date: May 29, 2019
The Constitutional Court of North Macedonia found that fining two lawyers for protesting unprofessional working conditions during a trial violated their freedom of expression. During a large terrorism related trial in 2018, the court moved the proceedings to a room where there was inadequate seating and desks for the numerous lawyers to work. After the Judicial Committee rejected a formal request for appropriate seating, all the defense attorneys stood in silent protest and were subsequently issued a 1000 Euro fine each for disturbing the court proceedings. The Constitutional Court, highlighted the important role defense attorneys play in the rule of law and applied the three-part test of the European Court of Human Rights to demonstrate that the imposition of the fines by the Basic Criminal Court Skopje and the Appeal Court Skopje, were not necessary in a democratic society.  The lower courts ignored the fact that the court had itself created a detrimental situation and that the lawyers acted only to protect their legal right and responsibility to provide defense as required under the Law on Criminal Procedure and Law of Advocacy. The Constitutional Court concluded there had been a violation of the lawyers’ constitutional rights to freedom of opinion and public expression of opinion and that the State had violated Article 10 of the ECHR.

Dominican Republic
Santiago University of Technology v. Sara Herrera Bonifacio
Decision Date: September 13, 2016
The Constitutional Court ruled that removing a student’s graduating honors in retaliation for her online criticism against the institution constituted a violation of her right to freedom of expression. Sara Herrera Bonifacio filed a constitutional action of amparo against the Santiago University of Technology after being deprived of honors due to comments she posted on Facebook. The Court reasoned that Bonifacio’s comments are protected under her right to freedom of expression since they do not violate the right to honor or privacy of any individual or institution. In addition, Bonifacio duly exercised her right to amparo by meeting the 60-day deadline of filing amparo after the university refused to reconsider.

The Frontier of Expression: Russia and Central Asia

Russia
On December 2, 2019, Vladimir Putin signed into law new fines for repeat refusal by internet companies to provide the Russian security services with decryption keys, in order to move personal data of Russian users to Russia, or to block unlawful content. Failure to provide decryption keys may now cost companies between two and six million rubles ($32,000 – $95,000). In comparison, the old fine was capped at one million rubles and repeat refusal to provide decryption keys was not penalized financially. In 2018 the messaging app Telegram was fine 800,000 rubles and banned in Russia for snubbing the demand for decryption keys from the Federal Security Services. Repeat refusal to move personal data of Russian users to Russia may now cost a company as much as eighteen million ($280,000) rubles. This is a significant increase from previously meager fines. Earlier this year Twitter and Facebook were fined just three thousand rubles each. The higher fines can easily be paid by foreign companies but are symbolic of Russia’s ever-growing desire to regulate its internet space.

Tajikistan
On November 26, as part of an amnesty program to commemorate the 25th anniversary of the Tajik Constitution, the authorities lowered lengthy sentences of two human rights lawyers imprisoned on trumped-up charges. In 2015, the Tajik authorities banned the opposition Islamic Renaissance Party of Tajikistan following a hasty and unfair trial and then began prosecuting its leaders. Human rights lawyers Buzurgmehr Yorov and Nuriddin Makhkamov took on the defense of the IRPT’s lawyers and were punished for their courage soon after. The two were prosecuted on trumped-up charges of incitement to hatred, advocacy of terrorism, and calls for a violent overthrow of the government. Yorov received a twenty-three-year sentence, which was later increased by five years for insulting the government and contempt of court. Makhkamov was sentenced to twenty-one years. Under the amnesty program, Yorov’s sentence was lowered by six years and Makhkamov’s by four. Intimidation, harassment and imprisonment  of human rights lawyers in Tajikistan is not uncommon. The Tajik government has also curtailed the independence of the bar in 2015 by enacting a law requiring all lawyers to renew their legal licenses with the Justice Ministry, instead of the independent bar association or licensing body. Lawyers are also now required to retake the bar examination every five years, which was rewritten to include questions unrelated to law to identify free-thinkers and those who may challenge the authorities.


Post Scriptum

●  ARTICLE 19’s new Global Expression Report 2018-19 shows that global freedom of expression at its lowest for a decade. Gains that were made between 2008 – 2013 have been eroded over the last five years. Repressive responses to street protests are contributing to the decline in freedom of expression around the world. A rise in digital authoritarianism sees governments taking control of internet infrastructure, increasing online surveillance and controlling content. The numbers of journalists, communicators and human rights defenders being imprisoned, attacked and killed continues to increase. 66 countries – with a combined population of more than 5.5 billion people – saw a decline in their overall freedom of expression environment last decade.

● The Initiative for a Representative First Amendment (IfRFA) is officially accepting applications to its 2020-2021 fellowship program. Hosted by Harvard Law School’s Cyberlaw Clinic and the Berkman Klein Center for Internet and Society, IfRFA provides funded fellowships to law students at the intersection of multiple marginalized identities who are interested in First Amendment work.

● Popular video-sharing app TikTok has been accused in a class-action lawsuit of transferring private user data to servers in China, despite the company’s assurances that it does not store personal data there. The lawsuit  filed in a Californian court last week alleges TikTok “clandestinely … vacuumed up and transferred to servers in China vast quantities of private and personally-identifiable user data.”

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


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