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.

UN Experts Condemn Modern-Day Racial Terror Lynchings in US and Call for Systemic Reform and Justice

A group of 47 independent UN rights experts called on the United States Government to take decisive action to address systemic racism and racial bias in the country’s criminal justice system by launching independent investigations and ensuring accountability in all cases of excessive use of force by police.

They further issued a statement on the Protests against Systemic Racism in the United States, a racism which has produced state-sponsored racial violence, and licensed impunity for this violence. They urgently call for a reparative intervention for this historical and contemporary racial injustice as required by international human rights law.

David Kaye, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and Edison Lanza, IACHR Special Rapporteur for Freedom of Expression issued a joint statement condemning the use of force against journalists covering protests. They call on 1) federal, state and local authorities to provide media workers with the highest degree of protection in order for them to perform their work freely; 2) public authorities to condemn attacks against journalists and promote the role played by the press; and 3) public authorities to encourage demilitarisation and a reliance on international standards for the management of protests.

Community HIghlights and Recent News

● Congratulations to the four outstanding Columbia Global Freedom of Expression Experts who have been shortlisted for the position of UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, to replace David Kaye, when his six-year mandate is up on August 1. They are: Irene KhanNani Jansen Reventlow, and ranked equally Agustina del Campo, and Fatou Jagne Senghor.  No women have ever held the position.

● CPJ board demands U.S. local authorities halt assaults on journalists: The Committee to Protect Journalists and the U.S. Press Freedom Tracker are currently investigating at least 280 reports of anti-press violence since May 26, a number never seen before in the United States. The majority of  the incidents reported are police violence, including journalists shot with rubber bullets or other projectiles, sprayed with tear gas and other chemical irritants, or smacked, shoved, or pushed to the ground.

● Civil rights groups sue Trump, Barr for tear-gassing protesters outside white house: The lawsuit was filed by the ACLU and others on behalf of Black Lives Matter in U.S. District Court for the District of Columbia and seeks an order declaring President Trump, Attorney General Barr, and other administration officials violated the protesters First and Fourth Amendment rights, as well as engaged in a conspiracy to deny those rights.

● According to Reporters without Borders the Algerian authorities are exploiting the pandemic to harass independent journalists and media and to gag press freedom. Judicial proceedings, imprisonment, draconian laws, website blocking and cyber-harassment have all been used to step up pressure on the last independent journalists and media outlets in Algeria, where more than 550 coronavirus deaths and nearly 7,200 cases have been officially reported since the first case on 25 February.

Decisions this Week

United States
Castillo v. G&M Realty L. P.
Decision Date: February 21, 2020
The Second Circuit Court of Appeals upheld the finding that even temporary works of art could achieve “recognized” stature and enjoy protection under the U.S. Visual Artists Rights Act (VARA). The case concerned the 5Pointz site in Queens, New York, renowned around the world for its aerosol art sprayed over the façades of several buildings. Gerald Wolkoff, the site’s owner decided to demolish the site in order to  build an apartment complex and ordered the facades  to be whitewashed, thus destroying the art.  He also denied artists’ requests to recover their art. The United States District Court for the Eastern District of New York ruled that some of the works on the site were of “recognized stature” and that Wolkoff willfully violated VARA in destroying them. The Second Circuit Court of Appeals upheld the ruling, agreeing that the temporary nature of aerosol art did not strip it of protection under VARA.

The Case of Mrs. B
Decision Date: November 6, 2019
The Federal Constitutional Court of Germany held that the Higher Regional Court properly balanced the rights of the complainant, Google and the German broadcaster NDR when it rejected the claimants request to have a six-year old article about her dereferenced.  In 2010, the complainant, Mrs. B, gave an interview to NDR which was featured in a segment of its TV show Panorama titled “Dismissal: the dirty practices of employers”. The NDR later uploaded a transcript of the segment to its website which was displayed among the top search results when the complainant’s name was typed into Google. Mrs. B. brought an action to remove the link after Google refused her request to de-reference the URL from the results. The Federal Constitutional Court did not object to the Higher Regional Court’s balancing of Mrs. B.’s right to the free development of her personality pursuant to Art. 7 and Art. 8 of the European Charter and Google’s freedom to conduct a business under Art. 16 of the Charter. The Court further considered the substantial amount of time that had passed, but ultimately found that the fundamental rights of third parties directly affected by the legal dispute had to be taken into account, namely the freedom of expression of the broadcaster and the public’s interest in the information pursuant to Art. 11 of the Charter.

Naguib Gabriel and others v. Minister of Culture
Decision Date: November 30, 2004
Egypt’s Administrative Court dismissed a request to suspend a decision of the Minister of Culture permitting the showing of a movie called “I Love Cinema”. After the plaintiffs watched the movie, they felt that its idea and message offended Orthodox Christians and the Orthodox Church, specifically the Coptic sect, and favored the Evangelical sect. Moreover, they claimed that the movie disturbed social stability and amplified sectarian strife. The court dismissed the plaintiffs’ claims, holding that a movie that addresses matters concerning Egyptian Christians does not amount to a breach of either public order or national security. The court affirmed that the content of the movie constitutes a form of freedom of creativity and expression. Therefore, the Minister’s administrative decision allowing for the showing of the movie was in accordance with the constitution and the law.

The Frontier of Expression: Russia and Central Asia

On June 8, 2020, Vladimir Putin signed amendments to the Law on Information, Information Technology and Protection of Information mandating web hosting providers to block content per the orders of Roskomnadzor, the country’s communication and media watchdog. According to existing provisions of the law, the Prosecutor General may seek the blocking of information that calls for riots, extremist activities, and participation in unsanctioned mass gatherings. Content that poses a threat to public safety as the result of “untrustworthy information” and materials of undesired organizations may also be blocked. Under the newly signed amendments, after identifying content to be blocked, the Prosecutor General is to notify Roskomnadzor to implement the blocking and the latter then has to order internet providers to block the websites containing unlawful content as well as to inform the hosting provider of the blocking. In turn, the hosting provider has twenty-four hours to inform the website owner to delete the unlawful information, who then also has twenty-four hours to follow through or risk blocking.

On May 29, 2020, journalist Abdulloh Gurbati was beaten for a second time in one month connection with his reporting. Mr. Gurbati works for the independent news agency Asia-Plus, which has been blocked in the summer of last year for reporting critical of the authorities. His reporting focuses on social and economic issues. The journalist was attacked while filming in a village damaged by severe flooding. As the journalist was talking to survivors of the flood, a car with three men drove up to him. One of the men presented himself to be a village representative and started yelling at the journalist, accusing him of being an “agent provocateur.” As the journalist was berated, another man suddenly hit him in the face, causing him to fall down, which did not stop the beating. Earlier in May, Mr. Gurbati was assaulted by two unidentified men on the streets of the capital Dushanbe after a video calling the journalist a traitor to the nation and threating him appeared online. The assailants were eventually identified and on June 2 a court fined them $57 each. Mr. Gurbati’s lawyer said that he will continue to urge the authorities to bring criminal charges against the assailants.

Post Scriptum

● Jameel Jaffer, Inaugural Director of the Knight First Amendment Institute at Columbia University, joins host Karen Greenberg of the Vital Interest Podcast to discuss national security, FOIA litigation, and the dangers facing freedom of speech today.

● Philip Howard’s new book, Lie Machines: How to Save Democracy From Troll Armies, Deceitful Robots, Junk News Operations, and Political Operatives, offers behind-the-scenes stories from the world’s biggest and most damagingly successful misinformation initiatives. Howard not only shows how these campaigns evolved from older propaganda operations but also exposes their new powers, gives us insight into their effectiveness, and explains how to shut them down.

● A lawsuit, filed in U.S. District Court for the Northern District of California, said Google violated the Federal Wiretap Law when it tracked and collected consumer browsing history, even if users took steps to maintain their privacy.

● How Police Unions Became Such Powerful Opponents to Reform Efforts: The New York Times reports that half a decade after a spate of officer-involved deaths inspired widespread protest, many police unions are digging in to defend members.

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