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

Over the last week, the global free speech community has been buzzing with the news of the launch of Facebook’s  independent Oversight Board. The Board, often described as a “supreme court,” is a grand “experiment in self-regulation”  by one, hugely influential, private company in the vast digital ecosystem. The four co-chairs of the board Catalina Botero-Marino, Jamal Greene, Michael W. McConnell and Helle Thorning-Schmidt discussed their mandate in a New York Times Op-Ed to set policy for some of the most challenging content issues such as hate speech, harassment, and protecting people’s safety and privacy.

Before it even started working, Facebook’s independent oversight board is already the subject of many robust debates within the human rights and freedom of expression community.

The following articles present insights into some of the main issues at the heart of the discussions:

Sejal Parmar, writing for JustSecurity, explores whether and to what extent the Board might be a mechanism to integrate international human rights standards into content moderation policies, which is necessary for its “global legitimacy, credibility, and appeal.”

ARTICLE 19 in their post, The Facebook Oversight Board: A significant step for Facebook and a small step for freedom of expression, discusses a range of limitations of the board as well proposes an alternate model of Social Media Counsels.

The University of Chicago Law Review posits in a recent blog that the Board’s institutional design will be critical for its success. The blog raised concerns over the initial limited scope of its “jurisdiction” to only hear referrals from Facebook and “content that has been removed for violations of content policies” from Facebook or Instagram, excluding for now decisions relating to algorithms, political ads, events, and groups. How the board chooses cases and how it applies standards will shape its ultimate impact.

Columbia Journalism Review held an online round table to discuss the Facebook oversight board that brought together a range of experts including Emily Bell from the Tow Center at Columbia, Daphne Keller from Stanford, Rebecca MacKinnon from Ranking Digital Rights, and UN special rapporteur for freedom of expression David Kaye, among others. They covered a range of topics from the independence of the board, to the need for subject matter and regional expertise among the members, to possible alternative models for content moderation, and the need for long-term decentralization and interoperability for content moderation across platforms.

Decisions this Week

Court of Justice of the European Union
Constantin Film Produktion v. EUIPO
Decision Date: February 27, 2020
The Fifth Chamber of the Court of Justice of the European Union (CJEU) set aside the judgment of the General Court which affirmed the European Union Intellectual Property Office’s (EUIPO) refusal to grant a trademark for the German word sign ‘Fack Ju Göhte.’ The appellant Constantin Film had sought the registration of the word sign as an EU trade mark designating various goods and services. The word sign was also the title of the blockbuster German film comedy produced by the appellant. EUIPO refused to grant the registration on the ground that the German-speaking public connoted the expression ‘Fack Ju’ to the English phrase ‘Fuck You’, and hence, deemed it as vulgar and offensive. This, in the examiner’s eyes, infringed accepted principles of morality and was thus ineligible for grant of the trade mark. Annulling the decision of the EUIPO and the judgment of the General Court, CJEU ruled that both the decision and the judgment failed to take sufficient account of a number of contextual factors which indicated, irrespective of its similarity to the English expletive, that the title in question was not perceived as morally unacceptable by the German-speaking public. Nor was there evidence that its use as a trade mark would go against the fundamental moral values and standards of society. Importantly, the Court’s also ruled that Article 11 of the Charter of Fundamental Rights enshrining the principle of freedom of expression must be taken into account when evaluating the registration of trade marks.

Ashutosh Dubey v. Netflix, Inc.
Decision Date: May 5, 2020
The Delhi High Court dismissed an application filed by a lawyer, seeking an injunction against Netflix for streaming online content which was derogatory about the legal fraternity. The lawyer argued that dialogue in the Netflix series ‘Hasmukh’ stigmatized the legal profession and lowered its image in the eyes of the public. The Court held that lawyers as a class are incapable of being defamed. In the absence of any specific imputation either to the Plaintiff or to a definite group of lawyers, a prima facie case of defamation could not be made out against Netflix. The Court held that the series was a satirical comment, a work of art which exaggerated different issues to expose the shortcomings of the profession. Moreover, the “very essence of democracy lies in the fact that its creative artists are given the liberty to project the picture of the profession in any manner, including by using satire, to exaggerate the ills to an extent that it becomes a ridicule.” In denying the Plaintiff’s application, the Court held that an interim injunction in favour of the Plaintiff would be tantamount to interference with freedom of speech and expression, a right guaranteed under Article 19(1)(a) of the Indian Constitution.

United States
Prager University v. Google LLC
Decision Date: March 26, 2018
The United States Court of Appeal for the Ninth Circuit upheld the district court’s dismissal of Prager University’s (“PragerU”) federal causes of action against YouTube and its parent company, Google, LLC, for allegedly censoring their video content uploaded to YouTube. PragerU, a nonprofit educational and media organization, claimed that, by classifying some of their videos as “Restricted Content”, YouTube was attempting to silence conservative viewpoints and perspectives on public issues.” As such, PragerU alleged that there had been a violation of the First Amendment and false advertising under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), as well as several state law claims. The District Court for the Northern District of California denied PragerU’s motion for preliminary injunction to compel YouTube to declassify the restricted videos. PragerU subsequently filed to amend the two federal claims. The Court of Appeal held that, despite YouTube’s popularity among the public, it is a private forum not subject to the First Amendment. Regarding the second claim, false advertising under the Lanham Act, the Court held that YouTube’s statements concerning their content moderation policies do not amount to “commercial advertising or promotion.” Furthermore, YouTube’s allocation of some of PragerU’s videos under Restricted Mode did not amount to an advertisement, promotion or misrepresentation of the videos. Finally, the Court reasoned that YouTube’s alleged “braggadocio” regarding their commitment to free speech was “classic, non-actionable opinions or puffery” not subject to the Lanham Act.

The Frontier of Expression: Russia and Central Asia

On May 6, 2020, Vladimir Putin issued an executive order that prohibits individuals serving in the Russian armed forces from publishing or sharing with the press information about themselves or other members of the military. The prohibition is extremely broad. Individuals cannot share information that could identify them or someone else as belonging to the Russian armed forces; that concerns any military related activities, even outside of combat operations, that relates to disciplinary actions taken against military personnel, that identifies family members or relatives of military personnel; and that could be used to determine the location or movement of the Russian armed forces. Violating the gag order is to be considered a gross disciplinary offense. Galina Arapova, Columbia Global Freedom of Expression expert, warned that the executive order may also be used to penalize journalists who report on military activities. She noted that since the gag order applies even to non-combat related military operations, journalists may not be able to interview soldiers who participate in emergency operations. When the gag order was first discussed last year, several Russian parliamentarians explained that the need for it was realized after the country’s armed forces began operating in Syria, and where information shared by soldiers was used to tarnish the image of the Russian military.

On May 14, 2020, a bill on the “Manipulation of Information” was introduced for discussion in the Kyrgyz parliament. The bill’s drafters want to create a specialized government body to surveil and moderate online content to protect Kyrgyz internet users from misinformation and to defend the country’s public order. Under the bill, owners of internet websites and resources are required to prevent the publication of false content, and to ensure that only lawful content is published. Furthermore, the bill suggests stripping internet users of anonymity by requiring website owners to publish their full names and emails so that they could directly receive legal complaints. Kyrgyz civil society united in opposing the bill, which they see as yet another attempt to introduce a broad censorship regime for online content. They argue the country already has laws penalizing defamation and advocacy of hatred, which could be used to demand restrictions on false information.

Post Scriptum

● Global Freedom of Expression Director Dr. Agnes Callamard, in the foreword of the recent IMS publication, Shared Responsibility: Safeguarding Press freedom in perilous times highlights the importance of strong, collaborative support to combat impunity and protect journalists. In an effort to strengthen investigations and accountability, Dr. Callamard proposes the development of a UN Protocol for the Investigation of and Response to Threats.

● The Global Network Initiative is hosting an online panel, “The Rights Foundation: Building Freedom of Expression and Privacy into the Digital Services Act.” The Digital Services Act, is a new overarching regulatory approach to the digital ecosystem which will alter the existing European legal framework for intermediaries’ responsibilities for user content and conduct. Global Freedom of Expression experts David KayeUN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Dunja Mijatovic, Council of Europe Commissioner for Human Rights, and Agustina Del CampoDirector of the Center for Studies on Freedom of Expression and Access to Information at Palermo University, among others will share their insights. The event will be held on Thursday, May 28 at 10 am ET. RSVP by Monday, May 25!

● Samual Woodhams in a new CIMA report, The Rise of Internet Throttling: A Hidden Threat to Media Development, writes that an increasing number of governments around the world are forcing internet service providers to slow their services during critical sociopolitical junctures—a practice known as throttling—infringing on citizens’ right to information and freedom of expression. Despite its deleterious impact on media development and foundational rights, throttling remains an often-neglected topic and risks becoming a pervasive, yet hidden, threat to press freedoms, democracy, and human rights.

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