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 Magnitsky Human Rights Awards 2020: Dr. Agnes Callamard, Director of Columbia Global Freedom of Expression and UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Killings, presented the Outstanding Human Rights Activist award to Loujain al-Hathloul, in absentia. Loujain, one of the most prominent and outspoken women human rights defenders in Saudi Arabia, has been detained since 2018 on charges related to promoting women’s rights; calling for the end of the male guardianship system; and contacting international organizations, foreign media, and other activists.
  • The late journalist Daphne Caruana Galizia’s sons, Matthew, Andrew and Paul, on Monday received the award for Outstanding Justice Campaign following their mother’s assassination in October 2017. Award Video
  • Taking on Big Tech: The Fight for Digital Rights. The Digital Freedom Fund (DFF) has launched its first ever Speakers Series,  which will run throughout November and December 2020 and will explore the key role of competition law in protecting digital rights. The series will feature preeminent speakers including Dr Niamh Dunne, Dr Miriam Buiten, and Dr Konstantinos Stylianou.
  • The High-Level Panel of Legal Experts on Media Freedom is launching two enforcement reports next week:
  • Providing Safe Refuge to Journalists at Risk. The eminent panel of speakers, including report author, English barrister and Member of the High Level Panel, Professor Can Yeğinsu, together with Lord Neuberger, Ms. Amal Clooney, Dr. Courtney Radsch, Mr. David McCraw  and Baroness Kennedy QC, will discuss a set of specific recommendations that States can implement to provide safe, reliable, and effective relocation pathways for journalists at risk. Monday 23 November 2020: 1415 – 1545 EST (GMT-5) / 1915 – 2045 GMT / 0415 – 0545 JST (GMT+9). Register for Free
  • Advice on Promoting More Effective Investigations into Abuses Against Journalists. The eminent panel of speakers, including report author, Executive Director of the Arab Reform Initiative, human rights lawyer, member of the Panel and report author, Mr. Nadim Houry, together with Ms. Amal Clooney, Professor Can Yeğinsu and Baroness Kennedy, will discuss a set of specific recommendations to strengthen investigations into attacks on journalists and tackle the issue of impunity. Wednesday 25 November 2020: 1415 – 1545 EST (GMT-5) / 1915 – 2045 GMT / 0415 – 0545 JST (GMT+9).  Register for Free

Decisions this Week

United States
Index Newspapers v. City of Portland
Decision Date: October 9, 2020
The United States Court of Appeals for the Ninth Circuit lifted a stay issued on August 27, 2020, reinstating the district court injunction that barred federal agents from dispersing, arresting or using physical force against journalists and legal observers during protests in the city of Portland. The action was brought in June by Index Newspapers LLC and a range of journalists, photographers and legal observers. The Plaintiffs allege that federal agents in the U.S. Department of Homeland Security (DHS) and the U.S. Marshals Service (“Federal Defendants”) targeted journalists and legal observers in violation of their First and Fourth Amendment rights. Overturning the stay against the preliminary injunction, the majority opinion ruled that the Federal Defendants did not show a strong likelihood of success on the merits of the claim. The Court reasoned that, on the basis of the entrenched recognition of the public’s right to protest and the widely accepted importance of the press, the Plaintiffs had demonstrated a likelihood of success on the merits of their First Amendment right-of-access claim.

Uganda
Human Rights Network Uganda v. Attorney General
Decision Date: March 26, 2020
The Ugandan Constitutional Court declared a provision of the Public Order Management Act (POMA) unconstitutional as it empowered police officers to prevent and disperse public gatherings. The Act – enacted in 2013 after the Constitutional Court had struck down a similar provision in 2005 – was challenged by a group of non-governmental organizations, a Member of Parliament and a prominent church leader. While recognizing that protecting public order is necessary and that laws which regulate public order are justifiable in democracies, the Court stressed that this regulation cannot allow for the suppression of public gatherings or require prior permission for a public gathering. The Court found that although the wording of section 8 of POMA and the earlier provision differed, the “subject, matter, purpose and effect” were the same, and hence it was prohibitory, rather than regulatory in nature. The Court was critical of Parliament’s attempt to subvert its earlier decision by passing this law, and held that the provision violated both the constitutional prohibition on Parliament passing laws to overturn judicial decisions and the constitutional protection of the right to freedom of assembly.

Germany
The Case of Dr. E
Decision Date: January 14, 2020
The Federal Constitutional Court of Germany upheld an administrative prohibition on the wearing of headscarves by legal trainees during certain parts of their traineeship to ensure religious neutrality of the judiciary. In 2017, the complainant, Dr. E, challenged a Ministerial Order which prescribed legal trainees from wearing religiously motivated clothing when performing any activity in which he or she is perceived or could be perceived as a representative of the state or judiciary by citizens. The Court considered the duty of neutral conduct imposed on legal trainees to be constitutional, in line with the second instance Higher Administrative Court’s ruling. It went on to say that the duty was a violation of the legal trainee’s freedom of religion under Art. 4 (1) and (2) German Basic Law but that the violation could be justified on constitutional grounds  such as the principle of the state’s ideological and religious neutrality, the principle of the proper functioning of the justice system and the negative freedom of religion of others. The Court stated that none of these conflicting legal interests outweighed the others to such an extent that it would be absolutely necessary under constitutional law to either prohibit or allow the wearing of religious symbols by the complainant in the courtroom. Therefore, it ruled that the complainant had to respect the legislator’s decision in the Civil Service Act to prescribe a duty of neutral conduct for legal trainees with regard to religious and ideological affiliations.

Post Scriptum

●  Amnesty International and the Association for Progressive Communications (APC) have released reports on internet shutdowns:

A web of impunity: The killings Iran’s internet shutdown hid. This joint investigation by Amnesty International and The Hertie School in partnership with the Internet Outage Detection and Analysis project documents how 304 people were killed in Iran during 5 days of protests against a rise in fuel prices in November 2019. Their timeline shows that more than 220 of these deaths took place within 48 hours of an internet shutting down ordered by the Iranian authorities. In Iran, as elsewhere, not only did the shutdown restrict access to information for people inside the country, it also stopped them from being able to share information with the rest of the world, thus obstructing research into the human rights violations and crimes committed, the identities of the perpetrators and the victims, and the real number of deaths.

“Dialling in the Law: A Comparative Assessment of Jurisprudence on Internet Shutdowns”, published  by APC  with support of the Cyrilla Consortium, outlines jurisprudence across the global South on the legality of internet shutdowns. It addresses the growing challenge of government-mandated disruptions of internet access around the world, often under the guise of safeguarding public order and upholding national security interests. The report aims to make resources of global developments available so that they can inform ongoing and future advocacy and litigation efforts challenging internet shutdowns.

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