Global Freedom of Expression, Columbia University: Newsletter

20 03 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.

Covid-19: Expression in a Time of Crisis

● UN human rights experts urged States to avoid overreach of security measures in their response to the coronavirus outbreak and reminded them that emergency powers should be motivated by legitimate public health goals and should not be used simply to quash dissent. To prevent such excessive powers to become hardwired into legal and political systems, restrictions should be narrowly tailored and should be the least intrusive means to protect public health.

● Governments must promote and protect access to and free flow of information during pandemic, say international media freedom experts representing the United Nations, the Inter-American Commission for Human Rights, and the Organization for Security and Co-operation in Europe. In a joint statement they call on governments to provide truthful information about the nature of the threat posed by the coronavirus, refrain from blocking internet access, protect the work of journalists, address disinformation, and urge that any use of surveillance technology to track the virus is consistent with international human rights standards.

● People in Kashmir can’t access coronavirus information due to the ongoing internet shutdown. TechDirt reports that “[d]espite the Indian Supreme Court declaring such restrictions illegal last January, the problem persists. And as a pandemic threatens the planet, these restrictions are making it hard for the residents of Kashmir to access essential medical information on COVID-19.”

● Better Health Through Mass Surveillance? Foreign Policy discusses Israel’s adoption of unprecedented measures allowing the General Security Service, Israel’s domestic intelligence agency also known as the Shin Bet, to track Israelis with the virus as well as individuals exposed to them.

Community Highlights and Recent News

● Journalism, ‘Fake News’ and Disinformation: A Handbook for Journalism Education and Training,
written by experts in the fight against disinformation, explores the very nature of journalism with modules on why trust matters; thinking critically about how digital technology and social platforms are conduits of the information disorder; fighting back against disinformation and misinformation through media and information literacy; fact-checking 101; social media verification and combatting online abuse.

● The European Centre for Press and Media Freedom published the results of its five-year study of attacks on media workers in Germany finding that attacks on the press are the new normal.  The majority of the attacks of the last 5 years came from right-wing groups.

● Former Judge resigns from the US Supreme Court Bar. In a letter to Chief Justice John Roberts, he detailed why he’s lost faith in the court and wrote that Roberts has allowed the “court to become an ‘errand boy’ for an administration that has little respect for the rule of law.”

● The Law Commission of Ontario’s Defamation Law in the Internet Age project examined Ontario’s defamation laws and how they should be updated to account for “internet speech,” including social media, blogs, internet platforms and digital media. The Final Report makes 39 recommendations to reform Ontario’s defamation laws in a broad range of areas.

Decisions this Week

United States
Butowsky v. Folkenflik
Decision Date: August 7, 2019
The US District Court for the Easter District of Texas greenlit a defamation lawsuit against National Public Radio (NPR) for a series of articles about a far-right conspiracy theory. In May 2017, Fox News Channel published a story alleging that Seth Rich, a Democratic National Committee (DNC) staffer killed in an attempted robbery in a 2016, was responsible for leaking DNC emails to WikiLeaks. The article was retracted a week after publication, but the story generated conspiracies that the DNC and/or Hillary Clinton were somehow involved in Rich’s death. NPR published a series of articles about this and named Ed Butowsky as the man who orchestrated the Fox News publication. NPR claims that its articles were largely based on a pleading from a lawsuit brought against Butowsky by Rod Wheeler, an investigator hired to investigate the Rich murder and who alleged to have been misquoted by Butowsky. NPR sought to dismiss the lawsuit citing journalistic privilege and defense of truth, but a Magistrate Judge and the District Court found that Butowsky’s defamation claim could proceed as NPR’s articles exaggerated information from Wheeler’s pleadings, among other reasons.

United Kingdom
Shakir Ali v. Channel 5 Broadcast Ltd
Decision Date: April 16, 2019
The Court of Appeal of England and Wales held that broadcasting the eviction of Shakir Ali and Shahida Aslam (the Claimants) on television was a violation of their right to privacy under Article 8 of the European Convention on Human Rights (ECHR). The broadcasting of the eviction was included in a Channel 5 “observational documentary” series on the rising problem of debt and the real-life consequences of the UK enforcement process. The High Court of Justice found that while Channel 5’s programme had contributed to a debate of public interest, the inclusion of the Claimant’s private information exceeded what was justifiable for that purpose, and the Court awarded £10,000 in damages for the disclosure of “fairly sensitive” private information of a “voyeuristic quality”. On appeal, the Court was satisfied that the High Court had attached sufficient weight to the public interest of the broadcast in balancing the countervailing rights to privacy and freedom of expression at first instance. The Court of Appeal affirmed that the Claimants had a reasonable expectation of privacy in respect to the information included in the programme and concluded that the restriction of the right to freedom of expression was justified and proportionate in respect of the Claimant’s right to respect for their family life and home.

Health and Access to Information Cases from the Database

Colombia
The Case of Sugary Drinks
Decision Date: August 25, 2017
The Constitutional Court of Colombia found that consumers have the right to be informed about the health risks of consuming sugary drinks. The case involved a non-profit that was ordered to stop broadcasting a public service announcement describing the hazards of excessive sugar consumption. The Colombian Constitutional Court reasoned that prohibiting an NGO from broadcasting such a commercial violated the right of consumers to information and that banning the public service announcement was a form of censorship. In reaching its decision the Court referred extensively to international and regional standards, specifically those established by the Inter-American Court of Human Rights and the European Court of Human Rights, to highlight the importance of freedom of expression in a democratic society.

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, 2020, over 120 human rights defenders and constitutional experts issued a public call for the Venice Commission of the Council of Europe to review a series of proposed constitutional amendments that would extend Putin’s rule. The proposed amendments do not only all but eliminate Russia’s opportunity at democracy for years to come by prolonging Putin’s regime, but also harm protections guaranteed by international human rights treaties and obligations. An amendment to article 79 states that Russia can ignore international bodies’ interpretations of the country’s international human rights obligations if they violate the Russian Constitution. An amendment to article 67 declares protection of historical truths and prohibits doubting the people’s feats in protecting the fatherland. An amendment to article 72 declares marriage as a union between a man and a woman. The proposed changes are not novel. The Russian government already passed a law in 2015 allowing its Constitutional Court to overrule judgments of the European Court of Human Rights.

Kyrgyzstan
On March 10, 2020, a city court in the country’s capital, Bishkek, ruled that a ban on all public assemblies until July 1 was unlawful. Bishkek mayor imposed the ban on all non-government organized peaceful assemblies, marches, and other public events until July 1 to prevent the spread of COVID-19. At the same time, the city’s government justified the ban as a means to thwart violent protests, referring to major protests that took place in the first days of March in support of an imprisoned politician. The Prosecutor General swiftly sued the city government, arguing that the ban violated the constitutionally guaranteed freedom of public assembly. A first instance court ruled for the city government, but an appellate court agreed with the Prosecutor General.

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


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