Global Freedom of Expression, Columbia University: Newsletter

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

Decisions this Week

Malta
Delia v. Minister for Justice of Malta Owen Bonnici
Decision Date: January 30, 2020
Malta’s First Hall of the Civil Court in its Constitutional Jurisdiction held that the systematic destruction by government workers of a memorial in honor of slain journalist Daphne Caruana Galizia, constituted a violation of protesters’ right to freedom of expression. Ever since the day after Caruana Galizia was murdered, activists, journalists and citizens have participated in a sustained campaign calling for justice which included maintaining a memorial to her in front of a national monument and organizing monthly protests. A government minister had ordered the routine “cleaning” or removal of all the banners, flowers, signs and related objects in an alleged effort to protect the national monument.  The Court held that the Minister’s order was arbitrary and had the specific purpose of hindering ongoing protests. The Court noted that the location of the memorial in front of the Court of Justice, where follow-up investigations into the murder were conducted, was directly relevant for the purpose of the protests. Further, the material was easily removable and did not damage the monument. Citing substantial case law from the European Court of Human Rights, the Court concluded that the order was not provided by law, did not pursue a legitimate aim, and was not necessary in a democratic society. Thus the Court found a violation of Article 10 of the European Convention on Human Rights (freedom of expression) and Article 41 of the Constitution of Malta (protection of freedom of expression).

This case analysis was made possible by a generous contribution from The Daphne Caruana Galizia Foundation.

Germany
BILD v. Mabb
Decision Date: September 26, 2019
The Higher Administrative Court in Berlin-Brandenburg determined that an online newspaper’s live streaming of programs constituted “broadcasting” which requires a broadcasting license. After the Berlin-Brandenburg media authority had prohibited the live-streamed videos and instructed the newspaper to obtain a broadcasting license, the newspaper filed an action before the Administrative Court in Berlin against the prohibition and requested that the action be given suspensive effect under a provisional procedure. While the Administrative Court in Berlin and the Higher Administrative Court in Berlin-Brandenburg during the provisional procedure both granted the request for suspension of the prohibition, in the main procedure the Administrative Court found the programs constituted “broadcasting”. The Court held that the fact that viewers of live streams had no control over the timing of when to view the programming meant that live streaming met the traditional definition of “broadcasting” and therefore required a license.

A Message from Dr. Agnès Callamard The rights to information and expression are fundamental human rights. They underpin all human rights and are central to human development. In the context of a humanitarian disaster or an international epidemic such as the one we are experiencing now with COVID-19, fulfilling these rights takes on particular importance: appropriately targeted information cannot only ensure that medical and other assistance is effective and locally relevant, but it can also save lives and preserve human dignity. The media has a specific task of informing the public; it can enhance the free flow of information and ideas to individuals and communities, which in turn can help them to make informed choices for their lives. A free and professional media, using investigative methods, plays a key role in providing information and knowledge at moments where these can and will save lives.  In relation to the Chinese famine of 1958-61, Amartya Sen demonstrated that censorship had a devastating impact on poor communities, while the resulting loss of information or incorrect data also greatly mislead the government and the policies it pursued. The right to “seek, receive and impart information and ideas” is guaranteed under international law. States and intergovernmental organizations should ensure that respect for this key right is central to an effective response to COVID-19 as it is to all crisis. This is true for all stages of the response, from the warning and preparatory stage to the crisis response and longer-term reconstruction and rehabilitation efforts where these are required.  Below are some texts and guidelines on the centrality of freedom of expression and information in disaster response and to the right to health, the right to life, the right to food.  Columbia Global Freedom of Expression will seek to highlight more of these in the weeks to come, as the global community is seeking to respond effectively to COVID-19 and protect lives. ARTICLE 19 has published a briefing on how states, the media and social media companies can help to combat COVID-19 by committing to transparency, tackling misinformation and promoting authoritative health advice. More resources from ARTICLE 19 on Information Rights: ●  A Healthy Knowledge   ●  Humanitarian Disasters and Information Rights  ●  Starving in Silence Related Court Cases from the Database Liberia Press Union of Liberia v. Government of Liberia Decision Date: August 7, 2015 The Supreme Court of Liberia ordered the reopening of a newspaper on the grounds that it had been shut down unlawfully, without a court order and based on a false premise. In August 2014, The Liberian government shut down The National Chronicle Newspaper after the newspaper published an article stating that an interim government was under formation even though the term of the democratically-elected government had not yet ended. The shutdown took place without a court order, and the reason given for closure by the government was that the paper was closed for security reasons during the state of emergency that was declared on account of the Ebola outbreak. The government explained that fear and panic created from the stories published by the newspaper would have resulted in uprising and the destruction of lives and properties. The full bench held that there was no actual threat to the country as suggested by the Government and therefore the newspaper’s right to press freedom were violated. South Korea State v. Kato Decision Date: December 17, 2015 The Seoul Central District Court acquitted a journalist of criminal defamation for an article written about the Sewol Ferry disaster. On October 8, 2014, Tatsuya Kato, former Seoul bureau chief for the conservative Japanese newspaper Sankei Shimbun, was indicted for criminal defamation based on a controversial column in which he alleged that during the April 16 Sewol ferry disaster, South Korean President Park Geun-hye was with her former aide with whom she had an affair. Public prosecutors sought an 18-month prison sentence for allegedly publishing false information. According to the court, while the article contained inappropriate statements, it concerned a matter of public interest and fell “within the area where the freedom of the press should be protected in a democratic society.” European Court of Human Rights Mamére v. France Decision Date: November 7, 2006 The European Court of Human Rights held that the criminal defamation conviction of a mayor for criticizing the head of a nuclear pollution watchdog agency violated his right to freedom of expression. The mayor had suggested, during a TV debate, that the former head of the French Office for Protection against Ionizing Radiation had failed sufficiently to protect the population from the radioactive fallout from the Chernobyl nuclear accident. The Court emphasized that as an elected representative, a mayor should have great latitude to raise criticism on issues of public concern.To our readers: Please send recommendations for court decisions which relate to freedom of expression and right to health to globalfreespeech@columbia.edu The Frontier of Expression: Russia and Central Asia Russia On March 12, a first instance court in Moscow imposed four fines on the English-Language BBC World News Service for violating rules on the dissemination of content among children. The Russian authorities complained that the BBC covered the war in Syria, Trump’s impeachment, protests in Iraq, the war on drugs, and pro-drug rallies in the United States, among other topics without warning that the content may not be suitable for children. Although the programs were all in English, the authorities insisted that many Russian children speak English and understand BBC’s coverage. There were four fines levied, and all for minimal sums. The channel itself received two fines, of ten and twenty thousand rubles, around $130-$250. Two of its editors received smaller fines for failing to add an age appropriate marking to problematic programs, a difficult task since many of the programs are live. Although the fines are minimal, administrative violations could be cause to ban or block a platform in Russia. Kazakhstan On March 11, 2020, two women’s rights activists were fined for burning a funeral wreath during a feminist march in Almaty, the country’s largest city. The sixty-person march was held on March 8 and sought stronger protections against gender-based violence and harassment. The authorities never sanctioned the march, but surprisingly never attempted to disperse it. Two participants burned a funeral wreath to highlight violence against women. They explained that women are celebrated once a year in Kazakhstan, on March 8 when they are given flowers and sweets, but face systematic violence on every other day of the year. Several days later, both activists received court summons where they were tried and found guilty of minor hooliganism, and one was additionally fined for participating in an unsanctioned protest. The trial received much media and public attention, allowing the activists to crowdfund enough money to cover the fines. Post Scriptum ● The Internet & Jurisdiction Policy Network has prepared a Policy Brief (I&J Ref: 20/201) to assist public and private decision-makers on determining the Geographic Scope of Content Restrictions. ● Job Opportunity: External Project Evaluator. SMEX, a digital rights organization based in Lebanon, is seeking a consultant to perform an external midterm evaluation for a two-year program. The consultant will have experience with monitoring and evaluation, and program assessment for digital rights and internet freedom-related projects, or, alternatively, projects related to technology and human rights with strong legislative/policy analysis, research, and advocacy campaigning components. This newsletter is reproduced with the permission of Global Freedom of Expression.  For an archive of previous newsletters, see here.