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

● International Press Institute Freedom Dialogues: Turkey podcast host Cansu Çamlıbel interviewed Agnès Callamard regarding the case of Saudi journalist Jamal Khashoggi, who was brutally murdered two years ago at the Saudi Consulate in Istanbul. In the podcast, Callamard explains her investigation process as the United Nations Special Rapporteur on extrajudicial executions in detail and concludes that contrary to Saudi claims of a “rogue operation”, the Saudi government bore responsibility and has yet to be held accountable.

● ARTICLE 19 has released The Global Expression Report 2019/2020: The state of freedom of expression around the world, which examines 25 indicators in 161 countries to score each country on a scale of 0-100. The Report discusses a series of global trends and shows that long-term declines in freedom of expression scores tend to be in countries with democratically elected leaders who have used their tenure to concentrate power and limit oversight. It further identifies clear patterns between these leaders as well as several warning signs.

● The Pakistan Bar Council has expanded its “Journalistic Defence Committee” to include eight female lawyers in an effort to provide greater gender balance. The Committee, which includes Global Freedom of Expression expert Umer Gillani, was established to keep a check on government policies related to the cybercrime law and to provide legal assistance to journalists facing restrictions on their right to freedom of expression.

Decisions this Week

Malekar v. DECA
Decision Date: July 12, 2020
The Tel Aviv-Jaffa District Court dismissed an application brought by Amnesty International seeking a revocation of a license granted to NSO Group Technologies Ltd., a spyware software firm. Amnesty International approached the Court after a staff member was the victim of an attempted surveillance attack on their mobile phone which used spyware technology created and sold by an Israeli-based company. Amnesty International argued that the Israeli Defence Export Controls Agency (DECA) had an obligation under international human rights law to ensure that companies domiciled in Israel respect human rights and that – as the spyware was being used to target human rights defenders – the company’s license to distribute that spyware should be revoked. The Court held that DECA’s internal processes were “thorough and meticulous” in granting and monitoring licences to companies providing military and security systems, and that Amnesty International had failed to prove that the surveillance attack had occurred or that the company was responsible for any attacks.

United States
Sandvig v. Barr
Decision Date: March 27, 2020
A District Court in Columbia dismissed a First Amendment challenge to the constitutionality of the Computer Fraud and Abuse Act (CFAA) alleging it criminalized certain research activities. The case was brought by researchers who wished to find out whether employment websites engage in discrimination on the basis of race, gender or other protected characteristics. Their research methods required that they violate websites’ Terms of Service (ToS), which they claimed exposed them to the risk of prosecution under a provision that criminalized intentionally accessing a computer without authorization or authorized access to obtain information from a protected computer. The Court interpreted CFAA’s Access Provision rather narrowly to hold that the plaintiffs’ conduct was not criminal as they were neither exceeding authorized access, nor accessing password protected sites, but public sites.  Construing violations of ToS as a potential crime under CFAA, the Court observed, would allow private website owners to define the scope of criminal liability – thus constituting an improper delegation of legislative authority. Since their proposed actions were not criminal, the Court concluded that the researchers were free to conduct their study and dismissed the case.

Attorney General v. Weld el 15
Decision Date: January 21, 2016
The Court of Cassation in Tunisia upheld a rap singer’s and actress’s convictions for public indecency following their use of indecent gestures in a YouTube clip for the rapper’s song, “El Boulisya Kleb” (“Cops are dogs”). The two had initially been charged with “outrage of a public officer” as well as public indecency and had been convicted on both charges in the Court of First Instance. The Court of Appeal overturned the convictions of “outrage of a public officer” but upheld the convictions on the public indecency charges, and the Court of Cassation held that there was no reason for it to overturn the Court of Appeal’s decision as it found the law had been applied correctly.

Post Scriptum

● Ron Deibert, Director of the Citizen Lab, was featured on Towards Life 3.0: Ethics and Technology in the 21st Century, a talk series organized by the Carr Center for Human Rights Policy at Harvard University to speak on his new book Reset: Reclaiming the Internet for Civil Society.

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