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
● Ronan Ó Fathaigh and Dirk Voorhoof, Columbia Global Freedom of Expression experts, discuss in a Strasbourg Observers blog the significance of the recent ECtHR ruling Centre for Democracy and the Rule of Law v. Ukraine, which they hope will be “an influential judgment for media, journalists, and NGOs seeking access to government-held information during (and after) the COVID-19 crisis, in order to guarantee the ‘public’s right to access information’ about ‘significant decisions’ taken by public authorities that affect ‘public health, civil liberties and people’s prosperity.’”
● Just Security’s latest post, Hungary Should Not Become Patient Zero, in their series Assessing Emergency Powers During COVID-19, dives into the details of the complex legal framework of Hungary’s new “Enabling Act.” They explain why they share the alarm that so many have voiced recently, and recommend counteraction against this power-grab.
● The Turkish authorities have launched their third investigation into award-winning journalist Nurcan Baysal, after she questioned the response to the COVID-19 pandemic in the country’s South East. This is the latest in a rising tide of judicial harassment of human rights defenders in Turkey.
● As if on cue, a message from the past: Bertrand Russell when asked in 1952 if he had a message for future generations said he had two messages, one intellectual and one moral. “The intellectual thing I should want to say is this: When you are studying any matter, or considering any philosophy, ask yourself only what are the facts and what is the truth that the facts bear out. Never let yourself be diverted either by what you wish to believe, or by what you think would have beneficent social effects if it were believed. But look only, and solely, at what are the facts. That is the intellectual thing that I should wish to say. The moral thing I should wish to say… I should say love is wise, hatred is foolish. In this world which is getting more closely and closely interconnected we have to learn to tolerate each other, we have to learn to put up with the fact that some people say things that we don’t like. We can only live together in that way and if we are to live together and not die together we must learn a kind of charity and a kind of tolerance which is absolutely vital to the continuation of human life on this planet.” Russell fans can find a trove of interviews he did with the BBC and CBC on YouTube.
Decisions this Week
Twitter, Inc. v. Barr
Decision Direction: April 17, 2020
A Federal District Court in California ruled that Twitter could not reveal the number of surveillance requests that it received from the US government. In 2014, Twitter sought to include the number of ‘national security legal process’ requests it received from the Foreign Intelligence Surveillance Court in its transparency report. The US government informed the company that the information contained in the report was “classified” and cannot be publicly released due to its failure to comply with Government’s pre-approved framework for reporting data about government requests in national security investigations. Twitter claimed violation of their First Amendment rights to publish this information. In a case that underscored a clear rift between the First Amendment and national security concerns, the Court denied Twitter’s motion and found that the classified declarations submitted by the Government satisfied, both substantively and procedurally, the strict scrutiny required to justify a content-based restriction and a prior restraint. This was a reversal of the Court’s earlier order where the Government’s original motion was denied for a failure to meet its high burden to overcome the strong presumption of unconstitutionality on the record before the Court.Freedman v. Maryland
Decision Date: March 1, 1965
The Supreme Court, in a seminal ruling, declared the Maryland motion picture censorship statute unconstitutional on the grounds that it lacked a recourse for a timely and impartial review of censorship decisions. The Appellant was convicted for exhibiting a motion picture without obtaining a prior approval from the Maryland State Board of Censors, despite his claim against the constitutionality of the prior restraints on expression under the censorship law. The Court devised a three-pronged test, ensuring that adequate “procedural safeguards” are put in place to obviate the perils of censorship: 1) the government entity (Censorship Board, in this case) seeking to restrain the speech bears the burden of proof in court; 2) restraints may be imposed only for a specified brief period during which the status quo must be maintained; and 3) an expeditious and prompt judicial review is available for final determination. Based on the procedural safeguards test, the Court reversed the judgment of the Maryland Court of Appeals.
Dario v. La Opinion de Zamora
Decision Direction: February 24, 2020
The Spanish Constitutional Court confirmed the Supreme Court’s award of damages to a man whose private photographs taken from his Facebook page had been published by a Spanish newspaper. The man had sued the newspaper after a report on his brother’s suicide had included photographs from the man’s private Facebook account. The Constitutional Court recognized that there is a balance to be found between a newspaper’s right to freedom of expression and an individual’s right to privacy, and held that the publication of private photographs which were not directly related to a matter of public interest was an infringement of the right to privacy. The Court stated that the mere sharing of images on social media by an individual does not authorize the use of those images by third parties without the individual’s consent.
On April 30, 2020, Russia’s Supreme Court clarified when an individual can be criminally charged for disseminating misinformation about COVID-19. On April 1, a law criminalizing misinformation about emergency situations was adopted. Those found guilty under it may face fines between 300 and 700 thousand rubles, correctional labor, as well as imprisonment up to five years. The Supreme Court swiftly moved to restrict the law’s application. On April 21, it explained that individuals cannot be prosecuted under the law for misinformation published prior to April 1, even if the harm from it occurred after that date. Most recently, the Supreme Court clarified that only individuals who disseminated misinformation intentionally, with knowledge that the information was false, and with the purpose of it reaching other individuals could be prosecuted under the new law.
On April 30, 2020, the Kazakh higher legislative chamber approved the first draft of the new law on public assembly, despite it being widely criticized by civil society. In a positive step, the draft law voids the requirement to seek government permission to hold public gatherings and only demands that the authorities are notified. However, in what is seen to be a major concern, the law denies the right to organize public gatherings to anyone who committed an administrative or a criminal offense in relation to a peaceful assembly. Considering the Kazakh authorities’ heavy-handed approach to protests, the provision would disqualify many members of civil society or political opposition from organizing public gatherings. Further, a coalition of human rights groups “Citizens’ Solidarity” argued that the draft law should not even be legislated at the moment as the country is on lockdown due to COVID-19 and the public cannot gather to voice their apprehension for the law.
● Celebrate World Press Freedom Day by joining the livestreamed Difference Day Conference on 3 May 2020. Keynote speakers including Mr. Guilherme Canela, UNESCO Chief of Section for Freedom of Expression, Ms. Caoilfhionn Gallagher, Human Rights and Media Law specialist, and this year’s laureate of the Difference Day Honorary Title will discuss the current challenges to guarantee “Journalism without Fear or Favour,” the theme chosen this year for the global celebrations.
● The European Centre for Press and Media Freedom has opened the 2020 call for its Journalists-in-Residence (JiR) programme , offering three fellowships for a period of up to six months, between June 2020 and February 2021. The programme is part of the Media Freedom Rapid Response, which works to provide swift and efficient support to journalists under threat.
● The CYRILLA Collaborative will be awarding 5 Applied Research and Advocacy Grants in the amount of $5,000 each to organizations and individuals to pilot small-scale applied research, journalistic, or advocacy initiatives committed to expanding the knowledge on digital rights legislation and case law. Deadline 21 May 2020.
● Finally, some good news on the human rights front: The African Commission on Human and Peoples’ Rights has issued its Declaration of Principles on Freedom of Expression and Access to Information in Africa. Highlights from the Declaration include calling on states to repeal laws that criminalize sedition, insult and publication of false news (22.2); amend criminal laws on defamation and libel in favor of civil sanctions which must themselves be necessary and proportionate (22.3); adopt laws, policies and other measures to provide universal, equitable, affordable and meaningful access to the internet without discrimination (37.3); not engage in or condone any disruption of access to the internet and other digital technologies for segments of the public or an entire population (38.2); not require internet intermediaries to proactively monitor content which they have not authored or otherwise modified (39.2); require internet intermediaries to ensure that in moderating or filtering online content, they mainstream human rights safeguards (39.3); ensure that the development, use and application of artificial intelligence, algorithms and other similar technologies by internet intermediaries are compatible with international human rights law and standards, and do not infringe on the rights to freedom of expression, access to information and other human rights (39.6).
This newsletter is reproduced with the permission of Global Freedom of Expression. For an archive of previous newsletters, see here.