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

● The UN Human Rights Council has issued a new resolution on the safety of journalists co-sponsored by over 70 countries in a show of strong support to end violence against journalists around the globe.  ARTICLE 19 reports that the resolution addresses “new issues such as extraterritorial threats, overbroad and vague laws, strategic lawsuits against public participation, accreditation regimes, access to information, surveillance and protests, while strengthening language on gender-specific threats against journalists. Additionally, the resolution has been updated to provide guidance on ensuring the safety of journalists in the context of the COVID-19 pandemic.”

●The Open Society Justice Initiative and four law professors, Diane Marie Amann, Gabor Rona, Milena Sterio, and Margaret deGuzman, have filed a complaint against the U.S. government over a Trump administration executive order authorizing draconian economic sanctions and severe civil and criminal penalties for those who support the International Criminal Court. The lawsuit argues that the executive order violates constitutional rights, including the plaintiffs’ freedom of speech, and prevents them from carrying out work in support of international justice.

● “Unshackling Expression: The Philippines Report”, published by the Foundation for Media Alternatives, in collaboration with the Association for Progressive Communications and the Cyrilla Collaborative provides a comprehensive audit of the Philippine’s laws and policies and how they affect and curtail freedom of expression and free speech online. Specifically, it discusses Philippine fundamental laws and freedoms; governance of online and networked spaces; sectoral laws; curtailment of freedom of expression; and draft laws.

● Justitia´s Future of Free Speech project has published its follow-up report, The Digital Berlin Wall Act 2: How the German Prototype for Online Censorship went Global – 2020 edition. The report finds that the German Network Enforcement Act (NetzDG) continues to inspire authoritarian and illiberal internet censorship around the world. In under a year, the number of countries copy-pasting the NetzDG matrix to provide cover and legitimacy for digital censorship and repression has almost doubled to a total of 25.

● UNESCO has produced Guidelines on the role of judicial operators in the protection and promotion of the right to freedom of expression in relation with the COVID-19 pandemic. The aim of the guidelines is to provide support for judges and members of the judiciary to cultivate a deeper understanding of the theoretical frameworks underpinning theright to freedom of expression, as well as the skills to put this theory into practice, during and beyond this time of crisis. The guidelines are available in EnglishFrench and Spanish.

Decisions this Week

Ben Meir v. Prime Minister
Decision Date: April 26, 2020
The Supreme Court of Israel held that the Israel Security Agency (“ISA”) is not constitutionally authorized to collect, process and use “technological information” of those who have tested positive for the coronavirus and their close contacts. The joint petitions were brought by the lawyer Shachar Ben Meir and rights organizations to challenge the Israeli Government’s decision (“the Enabling Decision”) to authorize the ISA to aid in coronavirus “contact tracing”. The Court found that section 7(b)(6) of the Israel Security Agency Law, 5762-2002 (“ISA Law”), which extends ISA jurisdiction to “essential national security interests of the State”, was too ambiguous to authorize such a significant expansion of the ISA’s activity over time without primary legislation. The Court further held that the Enabling Decision was a “serious violation of the right to privacy” and that, due to the fundamental importance of the freedom of the press, any contact tracing of journalists who tested positive for the coronavirus by the ISA would require their consent. While the Court appreciated the urgency of the public health crisis, it held that the “substantive flaws in the current mechanism” had to be replaced with a “transparent, voluntary mechanism.” The Court, therefore, recommended that Knesset Members implement primary legislation to continue the involvement of the ISA that is both provisional and a temporary order.

The Online Citizen Pte Ltd v. Attorney-General
Decision Date: February 19, 2020
The Singapore High Court dismissed an application by The Online Citizen (TOC), an independent media website, to set aside an order for it to post a correction notice or “Correction Direction” (CD) pursuant to the Protection from Online Falsehoods and Manipulation Act 2019 (POFMA). The Correction Direction was issued by the Home Affairs Minister following the publication of an article by TOC where it quoted from a Press Statement made by a Malaysian NGO, Lawyers For Liberty (LFL), alleging the use of illegal judicial execution methods at Changi Prison in Singapore. The Court rejected TOC’s “reporting defense”, that it  “merely reported in an evenhanded way” about allegations made by a third party and had taken no position on the truthfulness of the Press Statement. The Court further interpreted the Act to require the applicant to bear the burden to verify the truthfulness of the impugned statement, and it determined that TOC had failed to prove either that the statement was not a statement of fact or that it was true. Applying the reasonable person test, the Court found that the impugned statement would be understood as a statement of fact, and that  according to POFMA the maker of a false statement of fact “may be issued a Correction Direction even if the person does not know or has no reason to believe that the statement is false.” The Court reasoned that the CD did not inhibit free speech because it did not restrict the original text, but only required posting additional information as a mechanism to counter the spread of false information on the internet.

Post Scriptum

● According to Democracy under Lockdown – The Impact of COVID-19 on Global Freedom, a new report by Freedom House, the condition of democracy and human rights has worsened in 80 countries since the coronavirus outbreak began, with particularly sharp deterioration in struggling democracies and highly repressive states. More than 60 percent of the respondents predicted that the pandemic’s impact on political rights and civil liberties in their countries of focus would be mostly negative for the next three to five years.

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