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 Dissident, a new documentary on the murder of Jamal Khashoggi by Academy Award–winning filmmaker Bryan Fogel premiered at the Sundance Film Festival, along with three other documentaries on violence against journalists. The Dissident “unearths hidden secrets in this real-life international thriller” and features an interview with Agnes Callamard, director of Colombia Global Freedom of Expression and UN Special Rapporteur on extrajudicial, summary or arbitrary killings, who lead a six-month investigation into his murder.

● The Freedom of Expression Association (İfade Özgürlüğü Derneği – IFÖD), lead by Global Freedom of Expression expert Yaman Akdeniz, has submitted two communications to the Committee of Ministers of the Council of Europe arguing that there has been no progress achieved with regard to the provision of an adequate legislative framework in Turkey that enables the protection of Articles 10 and 11 of the European Convention and the full and effective implementation of the European Court of Human Rights judgments on the Öner and Türk; Şener and Akçam as well as Işıkırık group of cases.

● In an article for the Columbia Journalism Review, A surprising defense against cyber harassment, Anya Schiffrin documents a new trend where journalists, faced with repeated misinformation, threats of violence, and other efforts to undermine their credibility, have begun using defamation laws to protect themselves against online harassment.

● The Centre for Law and Democracy (CLD), is seeking a Legal Officer to begin as soon as possible based in Halifax, Canada. The Legal Officer will have a range of responsibilities related to safeguarding human rights, including freedom of expression and the right to information, as part of a small, dynamic human rights organisation with a unique mandate.

Decisions this Week

United States
State of Minnesota v. Casillas
Decision Date: December 23, 2019
The Minnesota Appeals Court struck down a “revenge porn” statute finding it overly broad and in violation of the First Amendment. Casillas challenged the statute after he was sentenced to 23 months in prison for accessing his former girlfriend’s wireless account, sending videos of her engaging in a sexual act with another individual to 44 recipients and then posting the videos online.  While the Court found Casillas’ conduct to be “abhorrent” and it affirmed the state’s legitimate interest to prevent harm, it found the statute flawed as it did not require proof of an intent to harm or of actual harm. The Court reasoned that an intent requirement was necessary to ensure the statute did not target broad categories of speech, such as sexually explicit images circulated on the internet with consent. Further, the way the Statute was written, negligent conduct could result in criminal sanctions. Accordingly, the Court determined that the statute had the potential to reach a substantial amount of protected speech, which could have a chilling effect. The Court declared the statute invalid and thus reversed Casillas’ conviction for “nonconsensual dissemination of private sexual images.”

South Africa
Qwelane v. South African Human Rights Commission
Decision Date: November 29, 2019
The Supreme Court of Appeal (SCA) in South Africa held that a law prohibiting speech that is hurtful was an unjustifiable limitation of the right to freedom of expression. After a journalist had published a homophobic article, the South African Human Rights Commission argued that the article amounted to hate speech under the Promotion of Equality and Prevention of Unfair Discrimination Act. The journalist responded by arguing that the Act was unconstitutional as it prohibited conduct that was protected speech in terms of the Constitution. The SCA acknowledged the importance of protecting the rights to dignity and equality of individuals, but held that the Act’s prohibition of conduct, which did not advocate hatred and incite harm, went too far and was an infringement of the right to freedom of expression.

The Frontier of Expression: Russia and Central Asia

On February 5, 2020, a Moscow court approved the blocking of encrypted email service for failing to provide the Russian authorities with information about its users. In 2016, Russia passed Federal Law No. 97, also referred to as Yarovaya’s laws, that obliges telephone and internet providers to store records of all communications and metadata about Russian users, as well as help intelligence agencies decode encrypted messaging services. Compliant companies are added to an official registry maintained by the Security Services. In the first half of 2019, the Russian Security Services requested to comply with Yarovaya’s laws. The request came after several anonymous bomb threats were sent by email to police in January 2019, forcing several schools and government buildings to evacuate. The company did not comply with the request and was accordingly blocked.  In March of last year, another encrypted email service ProtonMail was banned for similar reasons, although the company claimed they were never contacted by the Russian government.

On January 27, 2020, it was reported that the Turkmen authorities banned medical professionals from bringing personal cellphones to work. Weeks earlier, a similar ban was imposed on school teachers and students. The authorities have not explained the reasons behind the restriction. Civil society and local journalists believe that the bans are part of the government’s broader strategy of absolute control over online expression. State media portrayals of Turkmenistan as an economic and social utopia are oft challenged in online photos and videos. In November 2019, a photo of thirteen-year-old students forced by school officials to carry bricks and cement to fix a dilapidated bridge in their town was widely shared online, embarrassing the government. In response, the authorities undertook a widespread search for the person who took and published the photoAnyone seen with a phone in hand in a public place is all but guaranteed to be swiftly surrounded by law enforcement officers dressed in civilian clothes, questioned and forced to share the phone’s contents.

Post Scriptum

● Memorialize Turkey highlights positive examples of memorialization among the many groups and individuals that have suffered harm or grievance over the past 100 years in the late Ottoman Empire and the Republic of Turkey. The examples chosen seek to reinforce the idea of human rights, educate wider audiences about historical events that have been denied or suppressed, and ultimately promote understanding and reconciliation among the many ethnic, political and religious groups that make up Turkey’s multifaceted population.

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