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.

Congratulations to Columbia Global Freedom of Expression expert Irene Khan who has been appointed by the UN Human Rights Council as the new UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. Ms. Khan is also on the Global Freedom of Expression Prize Committee and spoke at the 2018 Prize Ceremony. She replaces David Kaye, who completes his mandate at the end of July.

● The Perilous Public Square, a new volume by Columbia Law professor David Pozen, brings together leading thinkers to identify and investigate today’s multifaceted threats to free expression. They go beyond the campus and the courthouse to pinpoint key structural changes in the means of mass communication and forms of global capitalism.

● Columbia University professor Dr. Anya Schiffrin argues in her article “How to Protect Journalists from Online Harassment,” that the marketplace of ideas is not functioning properly and therefore greater regulation is needed since big technology companies are both unwilling and unable fully to address the cyberharassment problem by themselves.

Decisions this Week

United States
Robert S. Trump v. Mary L. Trump
Decision Date: July 13, 2020
The Dutchess County Supreme Court of the State of New York vacated the Temporary Restraining Order (TRO) against Mary L. Trump and denied a motion for a preliminary injunction against Mary L. Trump and Simon & Schuster, the publisher of her book about her uncle, U.S. President Donald Trump.  Robert S. Trump, the brother of Donald Trump, brought the actions to prevent the defendants from publishing, printing or distributing any book or any portions of the Book entitled: ‘Too Much and Never Enough, How My Family Created the World’s Most Dangerous Man’, in any medium containing descriptions or accounts of Ms. Trump’s relationship with the plaintiff, Donald Trump, or Maryanne Trump Barry. On 1 July, the Appellate Division lifted a TRO against Simon & Schuster finding it was not party to a settlement agreement whose confidentiality provision allegedly precluded Mary Trump from exercising her First Amendment right. In arriving at its decision, the Supreme Court reasoned that the plaintiff had failed to establish any of the requirements for a preliminary injunction, such as irreparable harm or likelihood of success, against either of the parties. The Court further found that the settlement agreement was no longer relevant to the present case, as what once concerned family matters now involved the President of the United States who is standing for re-election, and therefore is of significant public interest. Under such circumstances, an injunction would not only violate the public’s right to know, it would also be moot considering that thousands of copies of the Book were already printed and distributed to booksellers.Nunes v. Twitter, Inc.
Decision Date: June 24, 2020
A Circuit Court in Virginia dismissed a lawsuit brought by U.S. Congressman Devin Nunes against Twitter. Nunes had invoked the state power to identify anonymous critics who had posted critical comments using the satirical Twitter pseudonyms ‘@Devin’s Cow’ and ‘@Devin’s Mom’. Nunes sued Twitter and the owners of three Twitter accounts: Elizabeth A. Mair (@LizMair); anonymous individual using the account name DevinNunes’ Mom, and an anonymous individual using the account name Devin Nunes’ Cow, for allegedly false and defamatory statements. The Circuit Court dismissed the lawsuit, holding that Twitter qualified as an ‘interactive computer resource’ under § 230 (c) (1) of the Communications Decency Act and was liable to immunity under federal laws. The Court noted that any lawsuits seeking to hold platforms like Twitter liable for exercising a publisher’s traditional editorial functions (such as deciding whether to withdraw, publish, alter or postpone content) were barred.Tunisia
Attorney General v. N.F.
Decision Date: January 3, 2018
The Court of Cassation of Tunis upheld the acquittal of N.F. for publishing false news threatening public order. On November 23, 2014, the day of the Tunisian presidential elections, N.F. published a post on Facebook alleging potential election fraud which she warned could lead to bloodshed and an outbreak of violence. After receiving numerous critical replies, she apologized and deleted the post. Based on an official investigation into the matter, she was charged with “publication of false news threatening public order” under article 54 of Decree Law 2011-115 on freedom of the press, printing and publishing. The Court of Cassation found that the Court of Appeal had applied the law correctly to determine that social networks do not constitute electronic media within the meaning of the Decree-Law 2011-115 and that the act of deleting the incriminating post neutralized the required criminal intent for prosecution. The Court confirmed the acquittal of N.F. and rejected the prosecution’s request to overturn the decision of the Court of Appeal.

The Frontier of Expression: Russia and Central Asia

On July 15, 2020, the Russian parliament began reviewing criminal and administrative law amendments that impose stricter penalties on calls for separatism and incitement to violate the territorial integrity of Russia. If the amendments are passed, simply questioning the extent of Russian borders may lead to fines reaching half a million roubles (roughly $7,000). Further, the drafters are suggesting codifying the crime of expropriation and “other” acts that violate Russia’s territorial integrity by imprisonment of up to ten years. Such acts are already prosecutable under the anti-extremism law and carry a penalty of up to five years in prison. The proposed amendments specifically codify such acts as a crime. The drafters explained that the recent constitutional reform referendum, which in addition to allowing Putin to extend his rule by sixteen years, has given a special status to the principles of sovereignty and territorial integrity. Accordingly, to ensure the protection of the principles, the drafters felt that individuals who violate them need to be punished more severely.Kyrgyzstan
On July 20, 2020, independent sources reported that a human rights defender imprisoned on allegedly trumped-up charges has fallen ill and was refused medical aid. Azimjan Askarov, an ethnic Uzbek from Southern Kyrgyzstan, built his reputation as an investigator of police abuse. He was arrested in 2010, following clashes between Uzbek and Kyrgyz ethnic group that led to hundreds being killed, mostly ethnic Uzbeks. Askarov was charged with inciting ethnic hatred, causing mass riots, and being involved in the killing of a policeman – all charges that he denies.  Further claims were brought against him for his human rights work. He was tortured and sentenced to life in prison in violation of fair trial norms. The Kyrgyz and international human rights community united in their support of Askarov, but the authorities remain committed to his imprisonment and earlier this year his sentence had been upheld on appeal. Prison authorities denied the allegations that Askarov fell ill and suffered from COVID-19 like symptoms. His family further complained that the prison authorities are denying him medical aid and are even refusing to pass on medications from the family.

Post Scriptum

● Pakistan Court moved for ban on TikTok:  A civil miscellaneous application has been filed in the Lahore High Court demanding an immediate ban on the mobile phone video application, TikTok, similar to bans already implemented in Bangladesh and Malaysia . The action has been brought by a citizen on the ground that the app is being used to spread pornography and instigate behavior that has allegedly led to the deaths of ten of its users.

●  The International Journal of Press/Politics is holding their 2020 conference virtually 21-24 September. The event hosts 11 panels including “Digital platforms companies and their democratic responsibilities,” “The anatomy of European political information environments,” and “The spread and correction of political disinformation,” among many others. Register here.

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