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

● In case you missed it, UNESCO’s Guy Berger published a paper Getting from the global to the local: Norms and systems for protecting journalists in the times of the sustainable development goals. The article sets out some developments at the global normative and institutional level concerning the protection of journalists, showing incremental progress achieved in recent years. The narrative then unpacks the potential to elaborate and reinforce norms, and their institutional support and implementation, at country level.

● The Law Library of Congress issued a report, Laws protecting journalists from online harassment. The report is composed of a survey of relevant international law instruments and activities directed at protection against online threats and harassment of journalists, as well as individual surveys for the following countries: Australia, Brazil, Canada, England and Wales, Finland, France, Germany, Israel, Japan, Singapore, Spain, and Turkey.

● Spain: New law threatens internet freedoms. A new Spanish law, Royal Decree-Law 14/2019, modifies existing regulations on the internet and electronic communications in order to grant the government greater powers to control these technologies in a range of vaguely defined situations. Further, the law allows the Government to restrict internet communications without judicial oversight, which could pose a threat to human rights in general and freedom of expression in particular.

● A CPJ special report by Elana Beiser found the number of journalists killed in the line of duty fell in 2019 to the lowest level in 17 years, as dangerous regional conflicts stabilized and the number of journalists murdered in reprisal for their reporting was the lowest since CPJ began keeping track. Syria and Mexico were the deadliest countries.

Decisions this Week

Court of Justice of the European Union
Glawischnig-Piesczek v. Facebook Ireland Limited
Decision Date: October 3, 2019
The Third Chamber of the Court of Justice of the European Union (‘CJEU’) found that the E-Commerce Directive (‘the Directive’) does not preclude a Member State from ordering a hosting provider to remove or block content that has been declared unlawful, or content that is identical or equivalent to such unlawful information. The Court also held that the Directive does not preclude Member States from ordering such removal worldwide, and therefore left it to the Member States to determine the geographic scope of the restriction within the framework of the relevant national and international laws. The case was brought in relation to an injunction to block content in Austria found to be illegal, as well as identical and equivalent content. The CJEU was also asked to decide if similar actions had to be taken globally. The Could found that monitoring for identical content to that which was declared illegal, would fall within the allowance for monitoring in a “specific case” and thus not violate the Directive’s general monitoring prohibition. This allowance could also extend to equivalent content providing the host was not required to “carry out an independent assessment of that content” and employed automated search tools to identify the “elements specified in the injunction.”

Google LLC v. National Commission on Informatics and Liberty (CNIL)
Decision Date: September 24, 2019
The Grand Chamber of the Court of Justice of the European Union held that existing EU law did not oblige Google to carry out an order to de-reference search results on all versions of its search engine. The case originated in France after the French Data Protection Authority (CNIL) fined Google LLC for failing to  globally de-reference information concerning a data subject.  The Court explained that EU law establishing and regulating the right to be de-referenced (right to be forgotten) was silent about the geographic scope of de-referencing orders. The Court held that in principle the de-referencing was supposed to be carried out in respect of all the Member States, but since privacy protections were not reconciled across the EU, it was up to courts and other relevant bodies in each Member State to decide the breadth of the de-referencing. The Court did not rule that Google could never be obliged to carry out a de-referencing order globally, but it was up to a court to decide when this was appropriate.

GC, AF, BH, ED  v. National Commission on Informatics and Liberty (CNIL)
Decision Date: September 24, 2019
The Grand Chamber of the Court of Justice of the European Union held in a Preliminary Ruling that the European Union Directive 95/46, which protects the right to privacy with respect to processing sensitive personal data, applied to search engine operators. Four individuals in France brought complaints before the French Data Protection Authority (CNIL) to de-reference links displayed on Google following searches of their names. This included information about their criminal convictions, judicial enquiries, as well as religious and political views. In 2015 and 2016, the CNIL refused to take up their complaints and the four appealed to France’s Conseil d’État (Council of State) against CNIL’s refusal. The Council of State referred to the Court of Justice of the European Union questions regarding the processing of sensitive personal data and the obligations of search engine operators. The Court of Justice found that the processing of personal data by search engines significantly affected privacy rights of those concerned. Data subjects could request de-referencing of such personal data and when assessing them search engine operators had to strike a balance between privacy rights of data subjects and the rights of Internet users potentially interested in that information.

The Frontier of Expression: Russia and Central Asia

On December 17, a court in Moscow imposed yet another fine under the foreign-agent law against the human rights center “Memorial.” The court imposed a 100,000-ruble fine because the center’s VKontakte page did not contain a visible marking stating “foreign agent.” The center was founded some thirty years ago to investigate and document human rights abuses committed during Soviet times, but has since expanded its operations to include the general promotion of democratic values in Russia. The latest fine was the seventieth levied on “Memorial” for violating the foreign agent law. In total, center now owes the government three million rubles (around $48,000), a number that will likely go up as eleven lawsuits are still pending.

On December 16, 2019, the Ministry for Information and Mass Media announced that it received three orders from the country’s president Shavkat Mirziyoyev, which if implemented will greatly improve freedom of expression and the press in the country. First, the Ministry has been tasked with reviewing proposals to decriminalize defamation and insult. Second, as part of a broader project on judicial transparency, the Ministry will begin developing a project on establishing courts open to the media and the public. Lastly, the Ministry was instructed to develop a plan to make State media more independent from government pressure. Since Mirzoyoyev took power, in a questionable and possibly unconstitutional manner, he actively sought to undo his predecessor’s dictatorial rule that turned Uzbekistan into a paradigm of human rights abuses and corruption. Regrettably, true reform remains distant. Despite public pro-democracy steps, serious human rights violations remain commonplace, including harassment and imprisonment of critical journalists and political opponents.

Post Scriptum

● Algorithms drive online discrimination, academic warns. Sandra Wachter of the Oxford Internet Institute has issued a new paper on affinity profiling. This practice of grouping people according to their assumed interests rather than solely their personal traits has become commonplace in the online advertising industry. Online platform providers use behavioural advertisement (OBA) and can infer very sensitive information (e.g. ethnicity, gender, sexual orientation, religious beliefs) about individuals to target or exclude certain groups from products and services, or to offer different prices. OBA and affinity profiling raise at least three distinct legal challenges: privacy, non-discrimination, and group level protection. The paper discusses how current regulatory frameworks may be ill-equipped to sufficiently protect against all three harms.

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