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.

Equal Justice under Law

Global citizens this week showed solidarity and marched together against racism and impunity in the wake of the murder of George Floyd, the latest victim of unchecked police brutality in the the United States.

● Dr. Agnes Callamard, director of Columbia Global Freedom of Expression, in an Op-Ed for the Washington Post, “Police in the U.S. Are Abusing Tear Gas and Rubber Bullets in Possible Violations of International Law,” denounces police excessive use of force, including through so-called less lethal techniques or weapons. She finds them to be enshrined in a legal and regulatory framework which does not meet international standards and to reflect underlying and systemic racism. She calls for an end to so-called qualified immunity for police officers, the development of a legal and policy regulation based on the principles of necessity and proportionality and independent investigations into all instances of excessive use of force, including through setting up independent specialized prosecutors, specialized courts and specialized investigators.

The following documents provide guidance on international standards on freedom of assembly and the use of force:

● Fueled by years of Trump’s demonization of the media, unprecedented violence breaks out against journalists covering protests. According to Reporters without Borders protests in at least 30 cities across the US following the police killing of George Floyd have resulted in violent attacks from police and protesters alike against journalists.

● ARTICLE 19 urgently calls on US authorities to protect protesters and the media, and respect the right to freedom of expression. Accordingly they write, all states must ensure the protection of journalists and the media and the protection of the right to protest. Further, the right to protest must be protected for all without discrimination, the right to anonymity must be protected and surveillance practices be curtailed.

● The Committee to Protect Journalists has issued a safety advisory for journalists covering U.S. protests over police violence. They report that there have been more than 125 incidents of violence and harassment, as well as arrests, targeting journalists covering recent protests across the U.S. The advisory identifies a range of risks to consider and how to get assistance.

● The ACLU of Minnesota is filing a class-action lawsuit against Minnesota’s state and local law enforcement officials to ensure that police officers who target journalists are held fully accountable for their unlawful actions. They are also pursuing legal actions to stop police brutality against protesters and organizers.
Protest Related Case Law from the Database
Malawi
Attorney General v. Trapence
Decision Date: September 30, 2019
The Supreme Court of Appeal of Malawi ruled that a series of protests could continue despite violence and criminality that had marred previous protests. After a contentious election result in May 2019, opposition leaders challenged the result in court, arguing that there were vote-counting irregularities, and a civil society organization convened mass demonstrations calling for the resignation of the chairperson of the Electoral Commission. The Supreme Court of Appeal dismissed the Attorney General’s application for an injunction preventing future demonstrations focused on the election result until the issue of violence had been resolved and the opposition leaders’ court challenge had been finalized. The Court ruled that it was not the sole responsibility of demonstration convenors to ensure non-violence during demonstrations and rejected the Attorney General’s statement that the police lacked resources to ensure safety of the public and property around the demonstrations.European Court of Human Rights
Butkevich v. Russia
Decision Date: February 13, 2018
The European Court of Human Rights found that the Russian Government had violated a journalist’s right to freedom of expression by arresting, prosecuting and sentencing him to administrative detention following his attempt to photograph a protest. The journalist, Maksim Butkevich, was arrested by the Russian police while covering a street protest during the 2006 G8 summit in St. Petersburg. He was subsequently sentenced to two days’ administrative detention, despite the fact that he had identified himself as a journalist to the police. The European Court of Human Rights found that the journalist’s rights to liberty and security, a fair trial, and freedom of expression had been violated by the Russian authorities and courts in this case. The European Court of Human Rights found that the arrest was not in accordance with Russian law. It also applied “strict scrutiny” to prosecution and conviction of the journalist, since they ensued his removal from the scene of a demonstration. In this regard, it found that the Russian authorities and courts had not given sufficient consideration to whether the journalistic function performed by Mr. Butkevich excused or mitigated his alleged actions, whether the demonstration threatened public order, and whether the measure adopted against Mr. Butkevich was proportionate.

Decisions this Week

United States
Georgia v. Public.Resource.org, Inc.
Decision Date: April 27, 2020
The United States Supreme Court upheld a ruling by the Eleventh Circuit Court of Appeals that the protection of “original works of authorship” in the Copyright Act does not extend to annotations in a state’s official code of law. “Public.Resource.org,” a nonprofit dedicated to facilitating public access to government records and legal materials, published the State of Georgia’s official code and annotations for each statute in it. Although the code is publicly accessible, the annotations are produced by a for-profit legal company LexisNexis and must be purchased. he Georgia Legislature sued the nonprofit on copyright grounds, and the nonprofit countersued on the basis that the annotations were in the public domain.  The Supreme Court held that the government edicts doctrine, which states that materials created by courts in the performance of their official duties belong to the public domain, also applies to “non-binding, explanatory legal material” that is created and published by a legislative body.

European Court of Human Rights
Tagiyev and Huseynov v. Azerbaijan
Decision Date: December 5, 2019
The European Court of Human Rights unanimously held that the Republic of Azerbaijan violated the right to freedom of expression of two journalists by imposing criminal sanctions for allegedly inciting religious hatred and hostility. The case concerned an article which compared the Eastern and Western philosophical traditions and spoke pejoratively of Islam. The article spurred strong criticism from religious groups, inspired protests in Iran and prompted an Iranian religious leader to issue a fatwa against the author. The Court found that while the restriction was provided by law and pursued the legitimate aims of protecting the rights of others and preventing disorder, it was not necessary in a democratic society. Taking into consideration the content, the context and intent of the speaker the Court held the article addressed the role of religion in society which was in the public interest. Further the margin of appreciation narrows for State’s when the expression involves freedom of the press. The domestic courts also failed to strike an appropriate balance between the competing rights as they based their findings largely on a textual analysis by outside experts rather than conducting their own legal assessment. Having considered all factors, The Court held that the applicants’ criminal conviction was disproportionate and not necessary in a democratic society and found a violation of freedom of expression guaranteed under Art. 10 of the ECHR.

India
Yashwant Sinha v. Central Bureau of Investigation
Decision Date: April 10, 2019
The Supreme Court of India held that leaked documents relating to the Rafale arms deal are admissible for consideration by the Court. The preliminary objection by the Indian Central Bureau of Investigation (CBI) was brought in opposition to a review of the arms deal on the grounds that the documents which form the basis of the investigation were stolen and thus could not be used in a Court of Law. In dismissing the objection, the three-judge bench reasoned that there was no violation of the Official Secrets Act 1923, or any other statute which prevented placing documents marked as secret before a Court of Law. The Court also found that Section 123 of the Indian Evidence Act, 1872, relating to unpublished public records, did not apply. As the documents were already in the public domain, having been published in ‘The Hindu’ newspaper, it would be “an exercise in utter futility for the Court to refrain from reading and considering the said document.” [para. 6] Finally, referencing Section 8(2) of the Right to Information Act, 2005, the Court noted that the public interest in disclosure outweighed the harm sought to be protected.

The Frontier of Expression: Russia and Central Asia

Russia
On May 29, 2020, Vladimir Putin approved a new anti-extremism strategy, which builds on the 2014 version and updates the definitions of radicalism and extremism. The new formulation of radicalism is defined as “the intent to decisively and fundamentally change the foundations of the constitutional system and to violate the unity and territorial integrity of the Russian federation.” The formulation of the “manifestation of extremism” now includes acts that threaten Russia’s constitutional system or violate its territorial integrity. The strategy proceeds to name foreign NGOs and their domestic partners “operating under the guise of providing humanitarian aid” as major threats to Russia’s spiritual and moral values, as well as the country’s socio-political and socio-economic stability. For the first time, the anti-extremism strategy lists expected outputs, including a “number of civil or religious organizations deemed extremist,” and “a number of online resources deemed extremist, and which had been taken down or blocked.” These outputs may incite a new wave of censorship in Russia as the authorities will need to fill quotas to meet them.

Kyrgyzstan
On June 2, 2020, the head of the State Security Committee claimed that the two Radio Freedom journalists behind a story exposing a major corruption and money-laundering scheme may have been paid $200,000 to write it. In the spring of last year, the investigative journalists worked jointly with the Organized Crime and Corruption Reporting Project (OCCRP) and Kloop to reveal a $700 million money laundering scheme involving the Abdukadyrs, a secretive clan that runs a vast underground cargo empire, and the Matraimovs, a politically connected family led by an untouchable former customs official. Airken Saimati, a Chinese citizen involved in the scheme, provided documents that helped expose it. Following the publication of the investigative report, Saimati was assassinated in Istanbul, bank accounts of Kloop and Radio Freedom in Kyrgyzstan were frozen, and media that published the story faced defamation lawsuits seeking large compensatory damages. Although the defamation lawsuits were dismissed and the media’s bank accounts unfrozen, the pressure on journalists has not subsided. A Kyrgyz diplomat who sometimes traveled with Saimati in Istanbul claimed that the deceased businessman paid the two investigative journalists $100,000 each to write a story that would tarnish the Abdukadyr clan’s reputation. The allegations against the journalists were made public at a parliamentary hearing, even before the journalists were questioned by the Kyrgyz authorities.

Post Scriptum

● A new report from Justitia, “Digital Freedom of Expression and Social Media,” found that every year, over 500,000 comments are deleted from five Danish Facebook pages and for every deleted comment subject to criminal liability, 36 ordinary expressions of opinion are deleted. The report is the first of its kind in Denmark, and it focuses on the scope and content of the many deleted comments on the Facebook pages of five Danish news media. Read the summary in English or the full report in Danish.

● Somali Court Orders Historic Investigation into Journalists’ Killings to Fight Impunity. Somalia’s second highest court has directed the Office of Attorney General to investigate the killings of 57 journalists over the past 10 years and present the findings to the Court. This unprecedented ruling comes after the National Union of Somali Journalists (NUSOJ) had petitioned to the court of Banadir region (Mogadishu) to order the investigations of the killings of journalists and is a major breakthrough in the fight against impunity in Somalia.

● For a little comic relief: Trump Lashes Out at Spell-Check for Treating Him Unfairly. According to the satirical Borowitz Report, US President Trump accused spell-check of infringing on his First Amendment rights by interfering with what he called “freedom of spelling.”

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