Global Freedom of Expression, Columbia University: Newsletter

18 01 2020

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

● The Council of Europe has published a new book, Human Rights Challenges in the Digital Age: Judicial Perspectives (2020). The book is based on a 2019 seminar which brought together speakers from different legal systems and jurisdictions to exchange views on the ways to address the complexity that protection of human rights online presents for the judiciary. It covers three major themes: judicial protection of freedom of expression and the right to privacy in the digital environment; the concept of jurisdiction in the World Wide Web; and the implications of Big Data.

● Montenegro arrested three journalists for the offense of instigating panic and public disorder under Article 398 of the Criminal Code. The journalists claim the law is being employed to intimidate them but the State counters that the journalists did not check their facts. Montenegro decriminalized defamation and insult in 2011 to align with European legal standards but this law lingers on the books. Human Rights Action is challenging the constitutionality of the law for being vague, prescribing custodial sentences and thus deviating from international standards.

● SHARE Foundation filed complaints to the Commissioner for Information of Public Importance and Personal Data Protection of Serbia against Facebook and Google for their non-compliance with the obligation to appoint representatives in Serbia for data protection issues.

Decisions this Week

India
Banashree Gogoi v. Union of India
Decision Direction: December 19, 2019
The Gauhati High Court ordered the immediate restoration of mobile internet services in the State of Assam on the ground there was no longer evidence of sufficient threats to public order to justify the restriction. The State of Assam had suspended mobile and broadband internet on December 11, 2019, in response to protests and an outbreak of violence related to the amended and controversial Citizenship Act. Despite a return to relative social calm, a lifting of the curfew and a restoration of broadband services by December 17, mobile internet services remained suspended. The Court recognized that in given and specific situations, the law permits suspension, but that conditions must be continually reassessed and services restored as soon as the situation permits. The Court made particular note of the role internet services play in daily life and that such suspensions bring “life to a grinding halt.” Legal arguments related to the power and jurisdiction of the state authorities to issue Notifications under section 5(2) of the Indian Telegraph Act, 1885 to suspend internet services would be addressed when the case was heard on the merits.
European Court of Human Rights
Bosyy v. Ukraine
Decision Date: November 22, 2018
The European Court of Human Rights found that a Ukrainian law allowing the ”automatic monitoring and censorship by the prison authorities” of a prisoner’s correspondence was a violation of the prisoner’s right to privacy.  Bosyy spent seven years in prison during which time he alleged his correspondence was regularly “intercepted, reviewed, blocked or delayed,” which negatively impacted his communications with the Court and other bodies regarding his case. Citing its previous case law, the Court concluded that the amended national laws did not provide appropriate protections against arbitrary interference, that they were “defective” and therefore, the existing monitoring regime was not in “accordance with the law.”  As a result, there was a violation of privacy rights protected under article 8 of the European Convention on Human Rights.

The Frontier of Expression: Russia and Central Asia

Russia
On January 12, 2019, Oleg Kozlovsky, a human rights activist and the founder of Russia’s school of civic leadership, submitted a complaint to the European Court of Human Rights that Russian law enforcement failed to investigate the hacking of his Telegram account, thus failing to protect his right to privacy. In 2016, hackers managed to access Kozlovsky’s Telegram account in the middle of the night. He did not receive a message authorizing access from a new phone because, as he learned later, his mobile service was disconnected for two hours for technical reasons. At least four other activists and journalists were hacked in the same manner. Kozlovsky filed a police report alleging that his rights to privacy and secrecy of communication had been violated. After initial refusal to investigate, the police took up the case just to drop it again on jurisdictional grounds since the origin of the hack was in the United States. The police also refused to investigate the liability of the Russian telecom company that disconnected Kozlovsky’s mobile service during the hacking attack. According to the telecom company, an inexperienced employee disconnected the service to protect Kozlovsky after noticing hacking attempts. Police investigators did not interview the employee and fully accepted the telecom company’s explanation.

Kazakhstan
On January 9, 2020, the Appellate Collegiate Court in Turkestan Province, southern Kazakhstan, acquitted Anabgelda Batyrbekov, the chief editor of Saryagash Info newspaper, of charges of criminal defamation and insult. The charges had been brought by the head of the regional education ministry whom Batyrbekov criticized in a series of Facebook posts. In one post, the journalist alleged that the head took bribes from candidates aiming to become school directors. Batyrbekov also re-shared a post made by another Facebook user who called the head “stupid.” In September 2019, the court found Batyrbekov guilty of criminal defamation and insult and sentenced him to two years and three months in prison. The case received a great deal of attention from domestic and international press freedom organizations. The acquittal came just weeks after the President of Kazakhstan ordered the decriminalization of defamation.


Post Scriptum

●  ARTICLE 19 is Hiring!  ARTICLE 19 defends freedom of expression and access to information from nine regional hubs around the world, delivering change through local as well as international influence. They have vacancies for a Russian speaking programme officer and a Middle East and North Africa programme officer.

● The Harvard Kennedy School (HKS) Misinformation Review is a new open-source, interdisciplinary, scholarly journal focused on all aspects of misinformation and featuring methodologically diverse, peer-reviewed, empirical research and cutting-edge commentary.

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


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