Global Freedom of Expression, Columbia University: Newsletter

26 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.

● As America recognized Juneteenth, the day of emancipation from enslavement, the UN Human Rights Council passed a resolution condemning systemic racism and police brutality. Based on input from governments and civil society around the globe the resolution calls on the High Commissioner Michelle Bachelet to “prepare a report on systemic racism, violations of international human rights law against Africans and people of African descent by law enforcement agencies, especially those incidents that resulted in the death of George Floyd and other Africans and of people of African descent”. It further calls on Ms. Bachelet and UN appointed independent rights experts and committees “to examine government responses to peaceful protests, including the alleged use of excessive force against protesters, bystanders and journalists”. Although George Floyd’s family urged the Council to establish an independent international commission of inquiry into violence against protesters supporting the Black Lives Matter movement, that was dropped as was any mention of the United States, allegedly due to pressure from the Trump administration.
  • UN experts expressed profound concern over a recent statement by the US Attorney-General describing Antifa and other anti-fascist activists as domestic terrorists, saying it not only undermines the rights to freedom of expression and of peaceful assembly in the country,  but also violates international standards.
●  On Monday 29 June 2020, from 3:00 pm to 4:45 pm (UK time) the Bonavero Institute of Human Rights at the University of Oxford, in partnership with the UNESCO and the Reuters Institute for the Study of Journalism, is hosting a webinar (in French) on legal challenges related to freedom of expression amid the COVID-19 pandemic. The webinar will be moderated by Françoise Tulkens, former Vice President of the European Court of Human Rights and speakers include Judge Sylvain Oré, African Court for Human and Peoples’ Rights; Judge Paulo Pinto de Albuquerque, European Court of Human Rights; Hélène Tigroudja, UN Human Rights Committee; and Joan Barata, Stanford University. Register on Eventbrite.
  • Video of last week’s webinar in English is available on Facebook. Speakers included Justice Edward Asante, President ECOWAS Court of Justice; Judge Darian Pavli, European Court of Human Rights; Joan Barata, Stanford University; Jennifer Robinson, Doughty Street Chambers; and Kate O’Regan, Director of Bonavero Institute of Human Rights.
● Sarah Cook in an analysis for Freedom House’s China Media Bulletin, Red Flags for Free Expression in Hong Kong, discusses China’s new National Security Law. She writes that the forthcoming legislation is expected to criminalize “separatism,” “subversion of state power,” “terrorist activities,” and foreign interference. It would also allow mainland China’s domestic security services to operate openly in Hong Kong for the first time. This could facilitate increased surveillance, intimidation, and possibly even rendition of Beijing’s critics in a city that has long enjoyed significantly greater freedom of expression and civil liberties than the rest of China.

Decisions this Week

United States
United States v. John R. Bolton
Decision Date: June 20, 2020
The United States District Court of Columbia denied the Trump administration’s request for a temporary restraining order and preliminary injunction to enjoin former National Security Advisor John R. Bolton from publishing his memoir titled The Room Where It Happened. The United States Government brought the motion ahead of the national release of the book slated for Tuesday June 23, 2020, maintaining that the book contained sensitive information that could compromise the national security of the United States. The Court agreed that the book likely disclosed classified information in violation of nondisclosure agreements, however, it held that the government failed to establish that the injunction would prevent irreparable harm. In arriving at its decision, the court observed that more than 200,000 copies of the book had already been shipped across the United States, thousands of copies were shipped to booksellers around the world and excerpts from the book were currently available online. The court therefore reasoned that an injunction was useless at this time as “the horse is not just out of the barn—it is out of the country” and it would not “order a nationwide seizure and destruction of a political memoir.”

Saudi Arabia
Mohammed Al-Habib v. Prosecution
Decision Date: January 4, 2018
The Specialized Criminal Court in Riyadh, Saudi Arabia, sentenced Shi’a cleric Sheikh Mohammed Al-Habib, to five years imprisonment, on top of a previous sentence of seven years, for inciting sedition and sectarianism. Al-Habib is known for his activism in support of political and economic reforms and for denouncing discrimination against the Shi’a minority in Saudi Arabia. In 2018 he was sentenced to seven years imprisonment for breaking a 2012 pledge not to deliver sermons considered objectionable by the ruling authorities and hence inviting sedition. This subsequent case was brought on related charges but based on additional evidence, while he was incarcerated. The Court found him guilty of violations under the Terrorism Crimes and Financing Act and for endorsing extremist religious groups under Royal Order No. A/44.  Applying Sharia Law, the Court determined that he had violated his pledge, and was legally responsible for his confessed words and actions. The Court further invoked the Al Ta’zir penalty which gives the presiding judge full discretion to determine the appropriate punishment. This is the last in a series of decisions by the Specialized Criminal Court against Al-Habib for criticizing state sponsored discrimination.

Australia
X v. Twitter, Inc.
Decision Date: September 28, 2017
The Supreme Court of New South Wales granted a worldwide injunction against Twitter, proscribing publication of tweets having confidential information of the plaintiff. The plaintiff had approached the Court to restrain the defendants from publishing offending tweets containing sensitive financial information, to remove them from the Twitter platform and to suspend the ‘fake’ user accounts responsible for the disclosure. Rejecting Twitter’s contention that proactive monitoring of user content was not feasible for the company, the Court considered it appropriate to exercise its discretion in issuing a worldwide order. It held that reservations concerning the utility of the order were outweighed by the flagrant violation of the duty of confidence and the clear malicious intent of the account holder. Considering Twitter’s commercial interest in compliance with the law and weeding out bad actors from the platform, the Court ordered the defendants to apply ‘some degree of filtering’ to ensure the offending materials were not posted, or if they were, immediately removed. The Court further found the worldwide orders were justified due to the public interest in ensuring the plaintiff was not left without a remedy. Finally, the Court also granted identity disclosure orders sought by the plaintiff to obtain information pertaining to user accounts.

The Frontier of Expression: Russia and Central Asia

Russia
On June 18, 2020, the Russian authorities lifted a ban on the popular messaging app Telegram. In 2017, The Federal Security Services contacted Telegram’s London office and requested the company to provide it with decryption keys to access messages sent from six Telegram accounts. The company refused to comply on the ground of privacy of its users. Further, due to the nature of its encryption technology, the company claimed that it did not even have decryption keys to give. Due to the non-compliance with the government’s request, communications regulator Roskomnadzor successfully sought a court order to block Telegram in Russia. Despite blocking thousands of IP addresses used by the app, the authorities’ attempts at blocking it proved ineffective due to the app’s reliance on cloud services. Two years later, Roskomnadzor suddenly announced that after consultations with the Prosecutor General it was decided to lift the ban because Telegram’s founder “declared his willingness to combat extremism.” The regulator did not plead with any court to lift the ban and technically the 2018 judgment remains in force. A spokesperson for the Moscow City Court that granted the blocking order explained that based on court pleadings, Roskomnadzor has the sole discretion to implement the ban or to lift it.

Kyrgyzstan
On June 16, 2020, it was reported that proposed amendments to the Kyrgyz Code of Criminal Procedure include a prohibition on initiating a criminal case review if an international body discovered new information of human rights violations. The Coalition Against Torture, a national NGO, warned that if passed the amendments would restrict citizens from seeking retrials on the basis of new evidence. The amendments were already widely criticized when they were first introduced a month ago for giving the authority to the Ministry of Interior to surveil not just suspects but also witnesses of a crime.

Post Scriptum

●  Human Rights Foundation has launched a new interview series: Dissidents and Dictators. The first episode features the legendary Serbian protest organizer and peaceful revolutionary Srdja Popovic on the topic of protest in a time of pandemic. Available on Apple Podcasts and Spotify, and you can watch the video versions on Youtube.

● The Reuters Institute at the University of Oxford has released its Digital News Report 2020 which reveals new insights about digital news consumption based on a YouGov survey of over 80,000 online news consumers in 40 markets including Kenya and the Philippines for the first time.

●  Publishers sue Internet Archive over Open Library ebook lending: Four major book publishers have filed suit against the Internet Archive for copyright violations relating to the Open Library project, setting the stage for a major legal fight over one of the internet’s longest-running ebook archives.

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


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