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

A range of civil society organizations have developed tools to monitor and map evolving threats to freedom of expression related to the pandemic:

● Emergency COVID-19 Laws May Become Permanent Features of the Security Landscape. Truthout discusses five forms of infectious security measures that risk proliferating globally: COVID coup, executive expansion, surveillance spread, rollback of refugee rights, and speech suppression.

● The Association for Progressive Communications’ has published a briefing paper Closer than ever: Keeping our movements connected and inclusive which outlines their thinking on the pandemic and identifies several key, interrelated issues that require attention by governments, the private sector and civil society.

● First Draft has created a resource hub for reporting on coronavirus to support accurate and responsible reporting, which will be regularly updated with new information.

● Poynter is maintaining a running tab on the layoffs, furloughs, and closures caused by the coronavirus’ critical blow to the economy and journalism in the United States.

Decisions this Week

Shaikh v. The State of Maharashtra
Decision Date: February 13, 2020
The Bombay High Court set aside orders issued by police and a magistrate which had prohibited peaceful protests against the Citizenship Amendment Act (CAA) in India. The police had refused the application for permission to hold daily peaceful protests and referred it to the magistrate, citing concerns over threats to law and order. The Court noted the importance of the right to freedom of expression and assembly in India and stressed that in executing their duties government officials must be sensitive to not unjustifiably hinder the exercise of those rights.United States
HiQ Labs v. LinkedIn Corp.
Decision Direction: September 9, 2019
The United States Court of Appeals for the Ninth Circuit affirmed the decision of the District Court to grant a preliminary injunction against LinkedIn’s conduct which selectively prevented hiQ from obtaining and using information shared by LinkedIn users and available publicly to anyone viewing with a web browser. With the assistance of automated bots, hiQ scraped information from users public profiles on LinkedIn including name, work history, job titles and skills, and used the information to yield “people analytics” in order to sell it to its business clients. The panel ruled that a cause-and-desist action against hiQ preventing access to data on LinkedIn’s server established “a likelihood of irreparable harm” and threatened the survival of its business. Thus, in balancing equities, the court held that hiQ’s interest in continuing business decidedly outweighed privacy interests of some LinkedIn users in their information, irrespective of their decision to make profiles public. The panel further ruled that hiQ raised a serious question as to whether accessing “without authorization” under the Computer Fraud and Abuse Act “limits the scope of statutory coverage to computer information for which access permission is generally required.”Hong Kong
HKSAR v. Chan Johnny Sek Ming
Decision Date: September 20, 2006
The Hong Kong District Court held that posts on a message board inviting participants on a public forum to join in a gang-rape amounted to an act outraging public decency. The defendant, Chan Johnny Sek Ming, had posted messages from his private computer on an internet website in which he had described in detail his plan to organise a gang-rape. When he was faced with criticism from several members of the forum, he reaffirmed his intention to organize the rape and taunted the police to come and get him – which they did. Based on the testimony of one witness who vouched for his good character and claimed the post was likely a “joke” as per the “culture of the website,” the Court found there was insufficient evidence to prove intent. However, the Court held that the messages “went beyond the promotion of such a horrible crime or a free expression of opinion, the messages were in substance a pubic invitation to others to indulge in such sexual perversion with the defendant.” Applying the relevant legal test, the Court determined that messages took place “in public,” were “obscene and disgusting,” and moreover the nature of the internet as a public forum made it possible for the message to incite others to commit such an act, with or without the defendant. The court concluded that the message proved all the elements of an outrage to public decency.

The Frontier of Expression: Russia and Central Asia

On April 7, 2020, Vladimir Putin signed into law amendments to the criminal code of procedure that heighten penalties for damaging war memorials and allows extraterritorial prosecution of foreigners for such acts. The amendments seek to punish anyone who harms military graves, statues, obelisks or any other memorials that iconize the “memory of the defenders of the fatherland” or are dedicated to celebrating Russia’s military. Those found guilty of such acts may face up to five years in prison or forced labor for the same duration, as well as heavy fines upward of $60,000. The amendments extend the protections of war memorials located abroad and allow the Russian authorities to investigate foreigners residing abroad. The jurisdiction to prosecute foreigners is given to the region that initiated the investigation. The destruction of Soviet-era war memorials abroad has long been a sensitive and politicized topic in Russia as such acts are considered to be an attempt by the West to erase, diminish or falsify the USSR’s contribution to the Second World War.

On April 8, 2020, the Supreme Court of Tajikistan imposed a ban on an independent online news publication The Court claimed that the media outlet “served terrorist and extremist organizations, including the Islamic Renaissance Party of Tajikistan.” Once the sole Islamic party in Central Asia, the opposition political party was banned in Tajikistan in 2015 on administrative and eventually anti-extremism grounds. The party’s leaders and even the lawyers who represented them all received lengthy prison terms. asserted that the Tajik authorities tied it to opposition groups to silence its reporting on corruption and misappropriation of state funds. The media outlet was created by the Tajik diaspora in Europe and is based in the Czech Republic. It publishes some 500 articles every month, mostly based on insider information and complaints of Tajik citizens, with a few concerning opposition political movements. The blocking of is part of an extensive anti-media campaign waged by the Tajik authorities. In 2019, the Tajik Supreme Court banned at least 40 media resources.

Post Scriptum

● UNESCO is accepting proposals under its Global Media Defence Fund for innovative projects that will enhance journalists’ legal protection and their access to legal assistance, as well as support investigative journalism contributing to tackling impunity, at the local, regional and/or international level.  Call for Partnerships and the application package here. Deadline 10 May 2020.

● The International Bar Association’s Human Rights Institute has released the first issue of the IBAHRI Freedom of Expression Bulletin which provides an insight into issues relating to the freedom of expression globally, highlighting current threats and trends to this fundamental right, and monitoring cases and situations where this right is violated.

● “Twitter cannot keep hiding behind blanket anonymity,” writes Stephen Kinsella founder of Clean up the Internet in an Inforrm’s Blog, which builds on a new report featuring opinion polling showing that the UK public overwhelmingly believe anonymity makes people ruder online; that social media companies aren’t doing enough to tackle anonymous abuse; and that a majority believe that social media bosses who fail to act to tackle abuse should face criminal charges.

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