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

● UNESCO has published its latest Issue Brief World Trends in Freedom of Expression and Media Development, which examines the risk to the safety of journalists covering protests. The report provides a list of recommendations for States, multilateral bodies and civil society groups to curb attacks on the press and help ensure the free flow of news and information. The report is available in English, French, Spanish, Arabic, Russian and Chinese.

● Relaunch: Catalysts for Collaboration, a resource to advance digital rights through collaborative strategic litigation. The site presents 12 catalysts and 8 case studies written by a group of experts in different disciplines to illustrate best practices used in strategic litigation in human rights cases. The resources are now available in four languages:  English, French, Spanish and Russian.

● Access Now and the USC Gould School of Law’s International Human Rights Clinic have submitted an Urgent Appeal to the United Nations Special Rapporteur on the Rights to Freedoms of Peaceful Assembly and of Association, Mr. Clement Nyaletossi Voule. The Appeal includes 19 calls to action to urge the U.S. government to cease the arbitrary detention and cruel treatment of peaceful protesters, and comply with its obligations under international human rights law.

● The Centre for Law and Democracy is seeking a Legal Officer to work from Halifax, Canada. The Legal Officer will have a range of responsibilities related to safeguarding human rights, with a focus on freedom of expression, the right to information, and freedoms of association and assembly. The position combines legal analysis and top-level standard setting research with on-the-ground campaigning across the Global South, in collaboration with a diverse range of activists, partners and subject matter experts.

Decisions this Week

United States
Seattle Police Department Subpoena for Protest Coverage
Decision Date: July 31, 2020
The Seattle King County Superior Court granted an application by the City of Seattle’s Police Department (SPD) for a subpoena to obtain unpublished photos and video footage of protesters from five news media outlets. The SPD filed the subpoena as journalists and photographers from the media outlets were present during both the theft of firearms from SPD vehicles and the arson of six SPD vehicles on May 30, 2020. The media outlets objected to the subpoena on the grounds that compliance would compromise their independence, by acting as an investigative arm of the police, and risk the safety of their journalists. The Court held that the SPD had fulfilled the statutory requirements of the qualified Washington shield law to obtain the material as it was relevant and necessary to their investigation; all alternative means to obtain the evidence had been exhausted and there was a compelling public interest in the disclosure.

European Court of Human Rights
Marina v. Romania
Decision Date: May 26, 2020
The European Court of Human Rights found that a radio station had violated the right to private and family life when it read out a letter on a morning comedy program, which made embarrassing allegations about Mr. Marina and his former wife. Mr. Marina’s sister sent the letter to the radio station, but the station neither verified the contents, nor notified him before featuring the letter complete with full names and “gratuitous” insults. The Court considered six criteria to hold that the domestic court had not properly weighed the competing rights of privacy and freedom of expression. The Court rejected outright the domestic court’s determination that the contents of the letter contributed to “a debate of general interest” and that Mr. Marina, a superintendent at a local police station, was a public figure who should tolerate a higher degree of tolerance towards possible intrusions into his private life. After further considering the content, form and consequences of the publication, the Court found a violation of Article 8 of the European Convention on the part of the Prahova County Court and therefore ordered the defendant State to pay Mr. Marina 2000 euros in respect of non-pecuniary damage, and 100 euros in respect of costs and expenses.

Germany
The Case of Reporters sans frontières and others
Decision Date: May 19, 2020
The Constitutional Court of Germany held that German state authority is bound by the fundamental rights of the German constitution when operating abroad. The Court found that foreign telecommunications surveillance conducted by the Federal Intelligence Service violated the fundamental right to privacy of telecommunications, under Article 10(1) and freedom of the press, under Article 5(1) Basic Law. The appeal was brought by the Society for Civil Liberties in coordination with Reporters Without Borders Germany, the German Journalists’ Association, German Journalists’ Union, the Network for Reporting on Eastern Europe and Netzwerk Recherche, along with several international investigative journalists in relation to alleged spying on journalists and their sources abroad. The constitutional complaint primarily challenged the 2016 amendment to the Federal Intelligence Service Act, which created a statutory basis for the telecommunications surveillance of non-German citizens in other countries. The judges reasoned that foreign intelligence gathering was not in theory incompatible with the constitution but needed to be justified, proportional and conducted with stricter oversight. Specifically, all data collection, processing and transfer to foreign entities under surveillance regimes must conform with constitutional obligations. The Court further recommended increased protections for those who could be endangered by transfers of such data, and for those “professional groups or groups of persons whose communications call for increased confidentiality,” such as lawyers and journalists. The challenged provisions continue to apply until 31 December 2021 to enable amendments to the statutory bases of telecommunications surveillance.

Post Scriptum

● The Dart Awards for Excellence in Coverage of Trauma, hosted Anderson Cooper, will recognize the Plain Dealer for “Case Closed,” a series about a rape survivor’s efforts to track down the perpetrator, and the New York Times Magazine for “How Does the Human Soul Survive Atrocity?” A roundtable discussion will illuminate the questions of craft, ethics and storytelling in reporting on violence and tragedy. The live virtual ceremony on 24 September at 6pm EST is free and open to the public. Register here.

● In case you missed it, the White House petitioned the U.S. Supreme Court to review a decision by the U.S. Court of Appeals holding that the president’s practice of blocking critics from his Twitter account violates the First Amendment. The Knight First Amendment Institute at Columbia University filed the case in 2017 on behalf of seven people who were blocked from the @realDonaldTrump account after they criticized the president in comment threads associated with that account.

● With Freedom at Stake, Courts Are Collapsing: In an op-ed for the New York Times, Columbia University Professor Madhav Khosla observes that courts have turned into silent bystanders and complicit actors when challenged by the executive powers of right-wing populist leaders in states including Hungary, Turkey and India.

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