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.

Community Highlights and Recent News

● UN Special Rapporteurs, including Agnes Callamard (Extrajudical Executions) and Irene Kahn (Freedom of Expression), issued a joint statement denouncing the lengthy and unnecessary pre-trial detention of scores of Egyptian human rights defenders which is putting them at grave and unnecessary risk during the COVID-19 pandemic. The SRs stressed the need for independent access to information about detainees health to reduce risk of sickness, torture, ill-treatment and other serious violations of human rights.

● İFÖD – Freedom of Expression Association, has released their latest report EngelliWeb 2019: An Iceberg of Unseen Internet Censorship in Turkey, which includes detailed statistical information for 2019 as well as an overview of blocked websites, news articles (URL-based) and social media content between 2007-2019. According to the report, access to 408, 494 websites, 130,000 URLs, 7,000 Twitter accounts, 40,000 tweets, 10,000 YouTube videos, and 6,200 pieces of Facebook content were blocked by the end of 2019.

● The Association for Progressive Communications is seeking young lawyers, activists, researchers and policy workers from South Asia to participate in Internet Rules: Unboxing digital laws in South Asia, 2020! Participants in the online workshop will engage with experts and practitioners currently working to improve digital laws and network with fellow digital rights defenders while building their capacity to impact change at the national, regional and international level. Apply Here by 15 September 2020.

Decisions this Week

United States
Cohen v. Barr
Decision Date: July 23, 2020
The District Court of Southern New York granted home confinement to Michael D. Cohen, US President Donald Trump’s former personal lawyer, after finding US officials had retaliated against him for exercising his First Amendment rights to publish a book critical of the President and to discuss the book on social media. Cohen had been granted home confinement for the duration of his prison term as he was at high risk for COVID-19, but a condition of his release included a complete bar on speaking to or through any media of any sort, including via a book. After Cohen challenged the conditions, claiming they violated his First Amendment rights, he was remanded back to prison. The Court issued an injunction restraining the United States government from any continuing or future retaliation by which Cohen could be re-confined to prison custody. The Court further directed the parties to conduct negotiations to revise the conditions of his release.  In response, the United States Department of Justice assured the Court of the government’s compliance and in particular that it would neither further litigate nor appeal the ruling of the Court and that the specific provisions about Cohen’s contact with the media would no longer be necessary.

Court of Justice of the European Union 
Data Protection Commissioner v. Facebook (Schrems II)
Decision Date: July 16, 2020
The Grand Chamber of the Court of Justice of the European Union (CJEU) invalidated the EU-US Privacy Shield and upheld the validity of the standard data protection clauses for data transfers between EU and non-EU countries. In 2013, Schrems had brought a complaint before the Irish Data Protection Commission against Facebook Ireland Ltd. claiming mass surveillance of the data of EU citizens by US authorities. In a judgment delivered by CJEU in 2015, the Court invalidated the safe harbour privacy principles, subsequent to which Facebook used another legal tool to transfer data outside of the EU, called “standard contractual clauses” (SCCs). By an amended complaint, Schrems challenged the validity of Facebook’s use of SCCs to transfer EU citizens’ data to the US, arguing that the use of such data for mass surveillance violated Art 7, 8 and 47 of the Charter of Fundamental Rights of the European Union. The Court found that the SCCs provided effective mechanisms to ensure transfer of data in compliance with EU laws, but noted that companies and regulators are required to conduct case-by-case analyses to determine whether foreign protections concerning government access to transferred data met EU standards. The Court, however, declared the EU-US Privacy Shield, another transfer mechanism, void for lack of ‘adequate protection’ under EU law, finding it provided insufficient or ineffective rights of redress to data subjects in the EU before U.S. Courts or against U.S. authorities.

Grievances Redressal Officer, Economic Times Internet Ltd. v. V.V. Mineral Pvt. Ltd.
Decision Date: May 5, 2020
The Madras High Court quashed criminal defamation proceedings against the journalist Sandhya Ravishankar and other related petitioners concerning a 2015 article discussing an ongoing public interest litigation in the Madras High Court. Ravishankar had published an article in the Economic Times Magazine titled ‘Scam on the Shores’ about alleged illegal mining of atomic minerals along the coastline of Tamil Nadu. The Court held that Ravishankar was entitled to the Public Interest and Good Faith Exceptions to criminal defamation under the Indian Penal Code as the article pertained to an ongoing litigation on a matter of public interest and since Ravishankar had written the article in good faith. Further, the Court said that in such cases where a summary examination is enough to show that the case could fall under one of the exceptions to criminal defamation,  a trial is unnecessary and the higher judiciary must be proactive to protect journalists when the freedom of the press is at stake.

Post Scriptum

● Solomon Okedara, Global Freedom of Expression Legal Researcher and Barrister and Solicitor of the Supreme Court of Nigeria, in his article “’The Room Where It Happened’ and the Happening of Free Speech” questions the US District Court’s determination that John Bolton had in-fact disclosed classified information in his tell-all memoir, and argues that the protracted prepublication review process for Bolton’s book violated his First Amendment rights.

●  Misinformation: tech companies are removing ‘harmful’ coronavirus content, but who decides what that means? Writing for Inforrm’s Blog Stephanie Alice Baker, Matthew Wade, Michael James Walsh argue that tech companies’ strategies to address the COVID-19 “infodemic” have resulted in overly broad and inconsistent interpretations of “harm” to justify restrictions which are undermining effectiveness, transparency as well as the public trust.

●  In case you missed it, the National Law University Delhi hosted a discussion Celebrating Three Years of the Justice K.S. Puttaswamy v. Union of India Judgment – the landmark ruling establishing the right to privacy as constitutionally protected. The panel included a keynote address by Hon’ble Mr. Justice Sanjay Kishan Kaul and remarks by Supreme Court Advocate and Global Freedom of Expression Expert Karuna Nundy on the future of privacy in India.

● Doughty Street Chambers, Howard Kennedy LLP, and Reporters Without Borders hosted an online event to renew calls for justice for journalist Christopher Allen on the eve of the third anniversary of his killing. The panel, including Agnes Callamard (Director Columbia Global Freedom of Expression and UN Special Rapporteur on extrajudicial, summary or arbitrary executions), and Mark Stephens (Global Freedom of Expression Expert and Head of International and Media Department at Howard Kennedy LLP) among others, further discussed the broader human rights situation in South Sudan and the need to end impunity for the killings of journalists globally.

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