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.

● Columbia Global Freedom of Expression partner SMEX, in cooperation with thirteen Lebanese and international organizations, announced the formation of a Coalition to Defend Freedom of Expression in Lebanon” to oppose the ongoing attacks by authorities to stifle free speech and opinion. Members have documented an alarming increase in attacks in the wake of nationwide protests against corruption which began in October of last year and in relation to a recent order by the public prosecutor to employ insult and defamation laws to crackdown on social media posts critical of the government. Despite the political pressure, there are instances of courts upholding international standards for freedom of expression. In Nidaa Al Watan Newspaper Co. v. Public Prosecutor, (featured below) an appeals court revoked proceedings against a newspaper for degrading the dignity of the Lebanese president.
● Atmaja Tripathy, Columbia Global Freedom of Expression Legal Researcher, discusses the serious legal ramifications of the Indian government’s recent ban of 59 Chinese web-based applications in her article “India Takes a Dig at Chinese Apps – A threat to Free Speech?” Implementation of the ban, justified by the government as necessary to protect national security and user data, seems to fall short of established legal procedures. Tripathy posits that it will not be long before the issue of legality and constitutional validity of the ban will reach Indian courts, which will need to balance the fundamental rights of individuals with state security, sovereignty and public order.● Presenting his latest and final report on freedom of expression and disease pandemics to the Human Rights Council, the UN Special Rapporteur on Freedom of Expression, David Kaye, raised serious concerns over new measures restricting and punishing the free flow of information. The report argues that the COVID-19 pandemic has underscored how freedom of expression reinforces public health initiatives. Governments must ensure that their laws, policies and practices meet their obligations in order to promote human rights and public health, the Special Rapporteur said.

● ARTICLE 19, in concert with 28 other press freedom organizations, has called on representatives of Azerbaijan and Tajikistan to cease blocking of the renewal of the mandate of Harlem Désir, OSCE Representative on Freedom of the Media (RFOM). The RFOM is a critical institution in safeguarding and promoting media freedom across the OSCE region and the moves by Azerbaijan and Tajikistan are seen as an attempt to weaken the essential watchdog function of the mandate.

Decisions this Week

President Jair Messias Bolsonaro vs. Federal Council of the Brazilian Bar Association (OAB)
Decision Date: April 30, 2020
Justice Rapporteur Alexandre de Moraes of the Supreme Federal Court (STF) granted a preliminary injunction, suspending a Provisional Measure issued by Brazilian President Jair Bolsonaro in light of the spread of COVID-19. The Provisional Measure restricted provisions of the Access to Information Act and suspended deadlines for public bodies to respond to information requests, demanding that information requests be presented again after the public crisis was over. The Federal Council of the Brazilian Bar Association questioned the Provisional Measure, defending Brazilians’ right to access public information. Justice Rapporteur Alexandre de Moraes reasoned that the Provisional Measure would turn the exception – confidentiality of public information – into the rule, thus damaging the public administration principles of disclosure and transparency. Thereafter, the full session of STF confirmed the preliminary injunction.India
Khan v. State of West Bengal
Decision Date: April 1, 2020
The Calcutta High Court ordered the police to return the petitioner’s mobile phone and SIM card which they had seized while interrogating him over several social media posts he had allegedly made about the lack of personal protective equipment (PPEs) supplied by the Government to doctors in public hospitals treating COVID-19 infected patients. The police had registered a complaint against the petitioner for allegedly inciting enmity between persons and disturbing public harmony contrary to Section 153A of the Penal Code. The Court held that prima-facie, the ingredients of Section 153A were not made out and further directed the police not to interrogate the petitioner again without the permission of a competent court. It observed that as per the protection of freedom of expression granted by Article 19 of the Constitution, the Government cannot intimidate a person by subjecting him to lengthy police interrogations or seizures merely because that person expressed an opinion that brought disrepute to the Government.

Nidaa Al Watan Newspaper Co. v. Public Prosecutor
Decision Date: November 21, 2019
The Publications Court of Appeal in Beirut revoked proceedings against Nidaa Al Watan Newspaper for degrading the dignity of the Lebanese president. The Prosecutor charged the newspaper with libel, slander and degrading the dignity of the President based on the headline “New Ambassadors in Baabda …Welcome to the Republic of Khamenei.” The Prosecutor argued that the headline implied that the Lebanese President had no authority and that the real power over Lebanese politics resided with the Supreme Leader of Iran. The newspaper countered that the article merely critiqued the role of Hezbollah in Lebanon and the phrase “Republic of Khamenei” was one coined by a Lebanese politician. The Court found that despite the severity of the opinions in the article, the author did not go beyond the limits of permissible criticism. Moreover, the privilege granted to the President should not limit the press from debating issues of public concern, even when it leads to judging actions of politicians, which “lies at the heart of the idea of ​​a democratic society like Lebanon.” The Court supported its decision by outlining Lebanon’s international obligations to the United Nations’ instruments, specifically the Universal Declaration of Human Rights, and it cited to a range of foreign jurisprudence.

The Frontier of Expression: Russia and Central Asia

On July 13, 2020, journalist and adviser to the head of Russia’s State Corporation for Space Activities (Roskosmos) was indicted on treason charges. Ivan Safronov was a special correspondent for the Kommersant and Vedomsti newspapers, two of the most preeminent publications in Russia. Last week, the Federal Security Services arrested him for allegedly working for the Czech intelligence since 2012. It is claimed that in 2017, he “used the internet” to pass on classified documents to the Czechs who then shared it with the United States government. Safronov denies the charges and Russian journalists united behind him. Global Freedom of Expression expert Galina Arapova blames his arrest on an overly broad formulation of the treason law. Amended in 2012, the law defines treason as the giving of government secrets obtained either through an official position, vocation, or any other means, as well as offering materials, technical or consulting services to foreign organizations whose activities aim to undermine Russia’s national security. Accordingly, a journalist or anyone else for that matter can be charged with treason for receiving and publishing information without even knowing that it contains state secrets. Arapova added that the law was effective in creating a chilling effect on publications concerning Russia’s military operations and national security, particularly abroad.
On July 7, 2020, an appellate court upheld a fine against a 73-year-old woman who participated in a peaceful march against the persistent political influence of former president Nazarbayev on the country. On June 13, around a hundred individuals walked and chanted political slogans in Almaty, the country’s largest city. The mass gathering was not officially approved but its organizers decided to proceed with it. Although no one was arrested on the day of the march, within a week the police arrested and kept over a dozen protesters in detention for 15 days. Several complained that their detention was further extended for participating in other political protests. Appeals against fines and detentions were unsuccessful. Although Nazarbayev suddenly stepped down from the presidency last year, he was anointed with new permanent government posts that made him the de-facto ruler of Kazakhstan. Opposition activists remain highly critical Nazarbayev and are punished for publicly voicing their opinions.

Post Scriptum

● Writing for the Carnegie Foundation, Steven Feldstein’s article “China’s Latest Crackdown in Hong Kong Will Have Global Consequences” explores the impact of the new national security law on the broader digital rights struggle around the world. It explores a range of questions including whether tech companies will conform to China’s restrictions, or whether they will uphold free speech standards even if it brings financial damage? How much pressure will Chinese authorities put on tech companies that refuse to comply with the national security law and what countervailing pressure will the United States and other liberal democracies exert on tech companies to uphold free speech standards.

● The International Journal of Press/Politics’ Special Issue on Digital Threats to Democracy: Comparative Lessons and Possible Remedies is available ungated through September. It collects eight articles, comprising research from twenty-three countries and four continents on the sources, impact on citizens, and possible remedies to various digital threats to democracy, ranging from disinformation, to hate speech, to state interference with online freedoms.

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