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.

● In Celebration of World Press Freedom Day, UNESCO issued a series of reports including:

● Also in recognition of World Press Freedom Day, the European Audiovisual Observatory’s updated its e-book on European Court of Human Rights case law concerning freedom of expression, media freedoms and journalism. This revised fifth edition contains summaries of over 300 judgments rendered by the Court.

● “Criminalisation of journalism around the world must end now,” stated the UN’s Special Rapporteur on freedom of expression, David Kaye, who urged States to free all media workers detained because of their work and stop the intimidation and repression of the independent press.

● Kaye has also launched the final report of his mandate, “Disease pandemics and the freedom of opinion and expression” which highlights five major challenges related to the current global crisis: access to information, access to the internet, protection and promotion of the media, public health disinformation, and public health surveillance.

● The International Press Institute issued an in-depth analysis into the impact of COVID-19 on press freedom along with a statement warning that the public health crisis will be used by governments as an excuse to control speech.


Decisions this Week

Balu Gopalakrishnan v. State of Kerala and Ors.
Decision Direction: April 24, 2020
The Kerala High Court issued an interim order directing the implementation of safeguarding measures to protect the confidentiality of data collected on patients or persons susceptible to COVID-19. A set of five petitions were filed in relation to a contract entered into by the Government of Kerala with Sprinklr Inc., a USA based software company, for creating an online data platform for data analysis of medical/ health data in relation to COVID-19. The petitions claimed that the contract lacked any safeguard against the unauthorised exploitation of health data collected by Sprinklr, on behalf of the State of Kerala. The Court stressed the urgency under the current circumstances to protect the confidentiality of personal data in order to avoid a “data epidemic.” In light of those concerns, the Court directed the State to anonymise all the sensitive personal data thus far collected with respect to COVID-19 before transferring it to Sprinklr, or any third-party service provider. Further, any future collection of data must be based on principles of informed consent where every individual will be informed about the access of such data by third parties. The Court also prohibited Sprinklr from committing any act in breach of confidentiality of the data and directed Sprinklr to entrust all the residual COVID-19 related data back to the State government.
Alok Srivastava v. India
Decision Date: March 31, 2020
The Supreme Court of India directed the Government within 24 hours to issue daily bulletins clarifying the latest developments on the COVID-19 pandemic and urged the media to refer to and publish the official version of events. The order was in response to a petition concerning the public health and safety implications of a mass migration of labourers on foot back to their home villages from urban centres, as a result of the nation-wide lockdown to mitigate the spread of coronavirus as well as the shutdown of public transport. The Government claimed that the migration was the result of panic triggered by fake news, and hence sought an instruction from the Court that no print/electronic media, web portal or social media would publish any news about the pandemic without first “ascertaining its factual position” from the Central Government. After considering a status report by the Government, the Court did not order the  instruction requested, and further clarified that it did not intend to curb free discussion regarding the coronavirus. Rather, the Court stated it expected the media would act responsibly and not publish unverified news capable of spreading panic and requested that the media disseminate the information from the Government’s daily bulletins.
Hong Kong
Decision Date: July 4, 2013
The Hong Kong Court of Final Appeal held that an internet service provider is entitled to rely on the defence of innocent dissemination when faced with a defamation claim relating to statements posted on a discussion forum. Two newspapers had sued the host of a popular Hong Kong discussion forum after a series of defamatory posts were made on the forum. The Court held that the defence of innocent dissemination was available to the service provider because it was not the first or main publisher of the defamatory statements. The Court noted that the service provider had no knowledge of the content of the posts until it was alerted to them and that, given the high number of posts on the forum, it could not realistically have been expected to have monitored and controlled all posts. As the service provider had removed the posts soon after it became aware of them the Court held that the service provider had acted with reasonable care and that it was therefore absolved of liability under the defence of innocent dissemination.
The Frontier of Expression: Russia and Central Asia

On May 5, 2020, it was reported that Roskomnadzor demanded Novaya Gazeta, Russia’s renown independent newspaper, to delete an article about the spread of coronavirus in Chechnya per the personal demands of its leader Ramzan Kadyrov. On April 12, Elena Milashina, the recipient of the 2020 Deutsche Welle’s Freedom of Speech Award, wrote a story about closure of hospitals and quarantine of medical workers in Chechnya due to the spread of the novel coronavirus in the region. The article was based on official government statements. The next day, Ramzan Kadyrov went on Chechnya’s state television to criticize the article and threaten its author. He declared that unless the law punished Elena Milashina, someone could commit “a crime” against her and happily be imprisoned for it. Novaya Gazeta’s staff interpreted this as a death threat in light of past assassinations and attacks on its journalists for their reporting on Chechnya. In fact, Milashina has been receiving death threats for her work on the region since 2015. Earlier this year, she was attacked in a hotel in Chechnya by a group of women likely per government’s orders. Over a hundred of Russia’s activists and politicians called on the Russian authorities to provide protection for Milashina. Putin’s press-secretary dismissed the alarm, calling Kadryov’s statements “emotional” but lawful. On April 15, Roskomnadzor demanded Novaya Gazeta to take down the article per the request of the Prosecutor General, which seems to have acted on Kadyrov’s demands. The newspaper complied.

On May 3, 2020, police officers detained journalists interviewing survivors of a recent flood and erased all recorded videos. On May 1, a dam south-east of the capital Tashkent collapsed, forcing some 60,000 persons to be evacuated. Journalists working for the news platform, which focuses on social issues in Uzbekistan, arrived at a shelter to interview the evacuees. The journalists were detained shortly after beginning their work and ordered to delete every second that they managed to record. The cameras were damaged in the process. and its staff were targeted by the authorities in the past. In December 2019, a press-secretary working for the country’s most powerful governor called the news platform’s chief editor a traitor, and instigator and a member of a banned religious movement. The editor sued the press-secretary for defamation and surprisingly succeeded in his claim.

Post Scriptum

● Sanjana Srikumar, Columbia Global Freedom of Expression legal researcher, in a recent blogpost on Coronavirus and the Constitution in India tackles important questions regarding the State’s obligation to ensure faithful implementation of right to food during a crisis and that right’s nexus with the right to information and transparency.

● The European Centre for Press and Media Freedom released its report “Media Freedom made in Scandinavia. Six examples of best practices” based on a fact-finding mission in Denmark and Sweden to explore media accountability systems and law and legal practice on press freedom and access to public documents.

● The Research Institute on Turkey (RIT), Turkey Human Rights Litigation Support Project (TLSP), and Osman Kavala Solidarity Team organized an international panel discussion on the perplexing case of Turkish businessman and philanthropist Osman Kavala who was recently acquitted of trying to overthrow the government after two years in jail and then rearrested before he could walk free. Archived video and Print Summary

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