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

● A new UN Broadband Commission research report, Balancing Act: Countering Digital Disinformation While Respecting Freedom of Expression, maps the diverse range of global responses to disinformation, along with the impacts of counter-disinformation measures on the right to freedom of opinion and expression. The report documents how disinformation affects our trust in public institutions, and endangers peace and public health. It concludes with 11 ways to promote high-quality information through policy and legislative measures, technological efforts as well as media and education literacy initiatives.

● The Knight First Amendment Institute is hosting Data and Democracy, an online symposium exploring how big data is changing our system of self-government.  The symposium will focus on three areas that are both central to democratic governance and directly affected by advancing technologies and ever-increasing data collection: 1) public opinion formation and access to information; 2) the formation and exercise of public power; and 3) the political economy of data. Thursday Oct. 15 – Friday Oct. 16, 2020. RSVP Here.

● The Electronic Frontier Foundation’s Pioneer Award Ceremony will take place Thursday, October 15, 2020. The awards recognize leaders on the electronic frontier who are extending freedom and innovation in the realm of information technology. This year’s keynote speaker is Cyrus Farivar, investigative tech reporter at NBC News. Read about this years winners and RSVP here.

Decisions this Week

United States
WhatsApp Inc. v. NSO Group Technologies Limited
Decision Date: July 16, 2020
The United States District Court for the Northern District of California held that the lawsuit filed by WhatsApp and its parent company Facebook may proceed against the Israeli mobile surveillance software company, NSO Group. The complaint asserted that spyware developed by NSO Group had been used to infect 1,400 mobile devices, enabling the surveillance of the communications of a targeted group of WhatsApp users. The Court rejected the defendants’ argument that they had a limited role in the surveillance of the plaintiff’s users. Rather, the Court held that NSO Group “retained some role” in the operation of their “Pegasus” spyware, “even if it was at the direction of their customers.” Accordingly, the Court denied the defendants’ motion to dismiss the plaintiffs’ complaint in all but one cause of action, concerning trespass to movable personal property. The Court also denied the defendants’ motion to delay discovery, enabling the disclosure of documents and records concerning NSOs practices in anticipation of future litigation.

Minnesota Voters Alliance v. Mansky
Decision Date: June 14, 2018
The Supreme Court of United States held that a Minnesota law prohibiting voters from wearing political badges, buttons, or anything bearing a political insignia inside a polling place on Election Day was unconstitutional. The challenge was brought by the Minnesota Voters Alliance on the grounds that the law violated their First Amendment rights. The Court determined that polling places were non-public forums and hence the government was within its authority to impose some content-based restrictions on speech. Certain restrictions placed by Minnesota were in fact necessary, according to the Court, to ensure that partisan discord does not interfere with the voting process, however, it found that the provision at issue could not stand the scrutiny of “reasonableness.” Since the law failed to define “political,” the Court ruled the vague use of the term in the Minnesota law, combined with “haphazard interpretations provided by the State” could lead to an expansive reading, encompassing anything “of or relating to” government, politics, or the state, to the extent that even a “Vote!” button could be prohibited. The Court concluded that the statute violated the Free Speech Clause of the First Amendment.

Virgo v. Board of Management of Kensington Primary School
Decision Date: July 31, 2020
The Supreme Court of Judicature of Jamaica held that a school policy prohibiting dreadlocks as a hairstyle does not violate constitutional rights, including to self-expression, of the child. Parents of a minor child were informed by the school that unless they cut the child’s locked hair her admission to the school would be revoked because the school had a policy of “no braids, no beads, no locking of hair”. The Court held that, because the parents had not informed the school that the child’s hair was a manifestation of their Rastafarian beliefs and the school had not told the parents that there was an exception to the policy on the grounds of religion, this case was not about the right of Rastafarian children to wear dreadlocks to school. The Court stated that an individual cannot vary the rules of an institution simply because it does “not fit in with their choices and mode of self-expression,” and held that the school’s policy was not an infringement of the child’s right to freedom of expression.

YouTube, LLC v. Geeta Shroff
Decision Date: May 17, 2018
The Delhi High Court affirmed a temporary injunction against YouTube, directing it to globally take down defamatory materials uploaded on its platform. The Respondent had approached the Court seeking removal of posts with the tagline “Indian Money Hungry Dr. Geeta Shroff Must Watch,” as well as disclosure of the identities of the posters. Before the District Court, the offensive post was regarded as defamatory and ordered to be taken down from YouTube’s website globally, pursuant to which the post was only removed from the Indian domain, citing YouTube’s technical ‘inability’ to remove the contents globally and on grounds of international comity. The High Court held a global takedown order was essential to protect the reputation of the respondent as the “malicious” content was still accessible to users of VPNs and those outside India. After considering YouTube’s arguments based on protections afforded under US Section 230 of the Communications Decency Act and the SPEECH Act, the High Court, dismissed YouTube’s appeal. The High Court further rejected YouTube’s fresh claim that the post had in fact not been uploaded in India and therefore was outside of the order’s jurisdiction. YouTube’s appeal was dismissed as withdrawn, in order for it to seek alternate remedies.

Post Scriptum

● But Facebook’s Not a Country: How to Interpret Human Rights Law for Social Media Companies. Susan Benesch, Executive Director of the Dangerous Speech Project and Faculty Associate, Berkman Klein Center for Internet & Society, at Harvard University explores in her new paper how international human rights law must first be interpreted to clarify how (and whether) each of its provisions are suited for use by companies as a basis for regulating online content.

● The International Commission of Jurists spoke with Miranda Sissons, Director of Human Rights Product Policy at Facebook regarding the human rights impact of Facebook’s operations around the world. This Q&A focused on the situation in Myanmar, where there are credible reports of international crimes.

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