Global Freedom of Expression, Columbia University: Newsletter

21 06 2020

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.

● Award winning Philippine journalist Maria Ressa has been sentenced to up to six years for an investigative report linking a prominent businessman to illegal activities, including human trafficking and drug smuggling, published by Rappler in 2012. Ressa was charged retro-actively under the controversial Cybercrime Prevention Act 2012, which “drastically increase[d] punishments for criminal libel and [gave] authorities excessive and unchecked powers to shut down websites and monitor online information.” At the time of its passage, the United Nations Human Rights Council declared it excessive and called on the Philippine government to decriminalize libel.

In 2014, the Supreme Court of Philippines, in Disini v. The Secretary of Justice, struck down three sections of the Act as unconstitutional, but the cyber-libel section remained.

  • According to MLDI, who has been supporting her defense, this “‘cyber-libel’ case is just one in a series of legal cases aimed at silencing Rappler, which has scrutinised Duterte’s government and highlighted issues of corruption, extra judicial killings and government policy on the war on drugs.”
  • Reporters without Borders sees the conviction of Ressa and Rappler as the latest chapter in the systematic judicial harassment to which they have been subjected by various government agencies for more than two years. After falling seven places since 2017, the Philippines is ranked 136th out of 180 countries and territories in RSF’s 2020 World Press Freedom Index.
  • David Kaye, the UN Special Rapporteur on the right to freedom of opinion and expression, has condemned a Philippine court’s conviction of journalist Maria Ressa, saying the nation’s higher courts had a responsibility to reverse the verdict: “The law used to convict Ms. Ressa and the journalist who authored the article which led to their prosecution is plainly inconsistent with the Philippines’ obligations under international law. I urge the higher courts to reverse this conviction and correct this injustice.”

Over broad cybercrime laws are often employed to silence critics and deter dissent, such as in the following case of Nyanzi v. Uganda.

Nyanzi v. Uganda
Decision Date: August 24, 2017
The United Nations Working Group on Arbitrary Detention (WGAD) rendered an opinion that found that the deprivation of liberty of a well-known Ugandan academic and activist, Stella Nyanzi, was arbitrary. Ms. Nyanzi was arrested and charged under the Computer Misuse Act, 2011, after writing a number of Facebook posts that were critical of the Ugandan President and the First Lady (who is also the Minister of Education). In its Opinion, the WGAD applied heightened scrutiny to Ms. Nyanzi’s case in light of her role as an academic and social activist. The WGAD found that Ms. Nyanzi’s arrest and detention amounted to a violation of her rights to freedom of expression, a fair trial, the presumption of innocence, liberty and security of person, and freedom from torture or to cruel, inhuman or degrading treatment. The WGAD also commented on the nature of the legislative provisions criminalising cyber harassment and offensive communication in Uganda, under which Ms. Nyanzi was charged, and stated that when laws are so broadly and vaguely worded as these they may have a chilling effect on the exercise of the right to freedom of expression.

Decisions this Week

Kenya
Kahiu v. Mutua
Decision Date: April 29, 2020
The High Court of Kenya in Nairobi confirmed the ban imposed by the Kenya Film Classification Board (the Board) on filmmaker Wanuri Kahiu’s film ‘Rafiki’. The film covered issues related to homosexuality, which is prohibited in Kenya.The filmmaker initially sought a conservatory order to lift the ban to allow the film’s distribution in order to meet the requirement for the film to be considered by the Oscar Selection Committee. The High Court granted an interim conservatory order and allowed the film to be shown for seven days, available only to consenting adults. However, when the final determination on the merits was made, the ban was upheld and the Court held that the Board’s actions in limiting the filmmaker’s freedom of expression were constitutional as they sought to protect the Kenyan public’s moral values.

Pakistan
Bolo Bhi v. Pakistan
Decision Date: May 25, 2018
The Islamabad High Court of Pakistan held that the Pakistan Telecommunications Authority (PTA) was exclusively vested with the powers and jurisdiction to block content on the Internet, which was to be conducted independently and uninfluenced by any instruction issued to it by the Federal Government. The petition was submitted by Bolo Bhi, a non-profit organization, as part of their advocacy in defence of internet access, digital security and privacy, government transparency, freedom of speech and information and gender rights. The Court reasoned that Section 37 of the Prevention of Electronic Crimes Act, 2016 vested the PTA with the legal authority to remove or block access to internet content. The Court also found that the PTA is an independent body; as such, any direction issued by the Federal Government regarding internet censorship is not binding on the Authority.

United States
Ashcroft v. American Civil Liberties Union
Decision Date: May 13, 2002
The United States Supreme Court held that the Child Online Protection Act’s (COPA) reliance on community standards to identify online material harmful to minors was not by itself an overly broad restriction of the First Amendment. Congress passed COPA to prevent minors from accessing pornography online on the grounds that such content was harmful. The American Civil Liberties Union (ACLU) and online publishers sued in federal court to prevent enforcement of the act, arguing that its scope could restrict protected speech in violation of the First Amendment of the US Constitution. The District Court agreed. On appeal, a Third Circuit Court of Appeals affirmed because the Act was overboard as it forced web publisher to abide by the most restrictive and conservative community standards to avoid criminal liability. The Supreme Court ruled that COPA’s reliance on community standards to determine if material is harmful to minors did not by itself make the act overbroad. However, the Court did not opine whether COPA was unconstitutionally vague on other grounds and sent the case back to the Third Circuit for further examination.   Upon remand, the Third Circuit affirmed that the Act was neither narrowly tailored, nor the least restrictive means available and hence declared the law unconstitutional.

The Frontier of Expression: Russia and Central Asia

Russia
On June 15, 2020, the Investigative Committee opened a criminal case against opposition politician Alexei Navalny for a tweet that criticized a Russia Today political ad supporting proposed constitutional amendments, which if  passed would enable Vladimir Putin  to rule for another sixteen years. Currently, Putin is not allowed to seek reelection after his current term expires in 2024. The amendments also would prohibit same-sex marriage and codify the superiority of Russian legislation over international or regional law. A referendum on the amendments is scheduled for July 1. The Russia Today ad, released two weeks ago, featured a number of public figures and supposed private citizens who called on Russian voters to support the constitutional changes in order to protect the country’s traditional family and spiritual values. Alexei Navalny, an anti-corruption activist and the leader of the country’s largest opposition movement, criticized the ad and labeled those shown in it as traitorous and amoral. Allegedly, the family of a World War II veteran appearing in the ad claimed that after Navalny’s tweet, the veteran fell ill and was diagnosed with heart disease. State media and nationalist organizations claim that Navalny personally attacked the veteran. Following the public campaign against Navalny, the Investigative Committee decided to investigate him on charges of spreading misinformation and defamation.

Tajikistan
On June 12, 2020, it was reported that a member of an opposition political party extradited from Austria earlier this year received a twenty-year prison sentence for treason and membership in an extremist organization. Mr. Khizbullo Shovalizod is a member of the Islamic Renaissance Party of Tajikistan, once the largest opposition party in Tajikistan, that had been banned on dubious charges. Since then, its leadership and members faced persecution in the country and extraterritorially. Even lawyers who provided legal aid to the party’s members were imprisoned. International human rights organizations condemned the Tajik government’s closure of the party and persecution of its members. In mid-2018, Mr. Shovalizod fled to Austria and sought political asylum. In January of this year, the Austrian authorities rejected his asylum, placed him in detention, and three months later refouled him to Tajikistan. Mr. Shovalizod’s father said that his son was sentenced in a secret trial and was allowed to meet him just once.

Post Scriptum

● In case you missed it, on May 28, the Global Network Initiative brought together David Kaye, the UN Special Rapporteur on the promotion and protection of freedom of opinion and expression, Council of Europe Commissioner for Human Rights Dunja Mijatović, and a set of experts from GNI’s multistakeholder membership to explore a human rights-based approach to content regulation in the context of EU Digital Services Act. A video of the event and a discussion summary are available here.

● Facebook, Google and Twitter will have to provide monthly updates on how they’re tackling misinformation connected to COVID-19 under plans to be unveiled next week by the European Commission, according to four officials and outside experts who have reviewed the proposals.

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


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