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

  • Don’t forget to register for The World Press Freedom Conference 2020 which will be streamed live from The Hague on 9 and 10 December. Columbia Global Freedom of Expression is participating in two panels:
    • Investigating the Killings of Journalists: Successes, Limitations and Recommendations. Wednesday, 9 Dec. 2020. 15:15-16:00 CET.
    • Dialogue by the Dutch Human Rights Ambassador with Agnes Callamard and Hatice Cengiz. Thursday, 10 Dec. 2020. 11:15-11:45 CET.
  •  “Did Germany really just outlaw Facebook’s business model?! Understanding the impact of the Federal Supreme Court decision,” is the topic of the next session in Digital Freedom Fund’s Speaker Series. Dr Miriam Buiten will discuss the impact of the June 2020 decision ordering Facebook to stop integrating data from third-party sources without consent. Register quickly as it takes place on 3 December, 17:00 CET/11:00 EST!
  • A broad network of NGOs have released a model EU anti-SLAPP (Strategic Litigation Against Public Participation) directive which proposes a set of rules that should guarantee that in each EU country SLAPPs can be dismissed at an early stage of proceedings, that SLAPP litigants pay for abusing the law and the courts, and that SLAPP targets are given assistance to defend themselves.
  • UNESCO has launched a Survey of Judicial Operators on AI and the Rule of Law, available until 15 December 2020. The survey results will inform the development of a Massive Online Open Course on AI and the Rule of Law, to build on UNESCO’s successful Judges Initiative, which has already engaged more than 17,000 judicial operators coming from more than 60 countries in courses and dialogues about Freedom of Expression, Access to Information and Safety of Journalists.

Decisions this Week

United States
E. Jean Carroll v. Donald J. Trump
Decision Date: October 27, 2020
The US District Court found that the United States could not substitute itself for the President of the US as a defendant in a case where President Trump was sued for allegedly defamatory remarks he made while president. The case concerned statements President Trump made in response to accusations by Ms Carroll that he sexually assaulted her before he was president in the 1990s. Following those statements, Ms Carroll sued the President in his personal capacity for defamation. In the course of the proceedings, the Attorney General of the US certified the removal of the case from state court to federal court on the basis that the US was substituting itself for the President as a defendant under the Westfall Act. The government argued that President Trump was an employee of the US and his allegedly defamatory remarks were within the scope of his employment. Judge Kaplan of the US District Court held that the motion to substitute was denied. He concluded that President Trump was not an employee within the meaning of the statutory framework because the text signified that presidents are not included within the definition of employee. Further, he contended that the statements concerning Ms Carroll were not within the scope of the President’s employment because they did not satisfy the law of the relevant jurisdiction, Washington D.C.

European Court of Human Rights
Case of N.Š. v. Croatia
Decision Date: September 10, 2020
The European Court of Human Rights found that the criminal conviction of a grandmother for breaching the confidentiality of administrative custody proceedings violated her freedom of expression. The case concerned Ms N.Š.’ participation in a television interview where details about the administrative custody proceedings concerning her granddaughter were disclosed, including her granddaughter’s name. She was criminally convicted for disclosing information that had been confidential, despite claims that she informed the journalists not to publicize such information and despite prior instances where the same information was publicized in the media. The Zagreb Municipal Criminal Court dismissed the applicant’s proposals to hear further evidence on these claims. Her conviction was upheld by the Zagreb County Court and the Constitutional Court. The European Court of Human Rights held that, ultimately, an extensive balancing exercise was needed between the competing rights of freedom of expression and the privacy of the child. The domestic courts failed to properly conduct this exercise, instead engaging in too “formalistic” an approach. The Court found Ms N.Š.’ freedom of expression under Article 10 of the European Convention of Human Rights was violated.

South Africa
South African History Archive Trust v. South African Reserve Bank
Decision Date: May 20, 2020
The South African Supreme Court of Appeal set aside the decision of the South African Reserve Bank (SARB) to refuse a request for information related to individuals suspected of apartheid-era economic crime. After receiving the request, the SARB did not attempt to notify the individuals concerned and simply stated that as the information sought contained personal information of third parties it would not disclose the information. The Court held that, as the legislative framework requires the public body to take reasonable steps to notify any third party of requests concerning their information before making any decision whether or not to disclose the information and, as the SARB had not done so, the SARB was not empowered to refuse the request. The Court added that a public body must provide evidence for why a request is refused; it cannot merely cite the need to protect personal information of third parties.

High Court of Karnataka v. G.N. Shivakumar
Decision Date: January 28, 2020
The High Court of Karnataka dropped criminal contempt charges against the accused but fined them a total of INR 73,00,000 (approx. USD985) for publishing “false news articles” suggesting that the judiciary was corrupt. The news items appeared in an English daily newspaper and on three news channels with headlines including “High Court vigilance wing cracks down on corrupt judges” and “Rs. 9 crores (approx. USD1,215,611) seized in raid on judge”. The judges held that the reckless publication of “false news” items amounted to “scandalizing the court” but in light of an unconditional apology by the accused, an affidavit that the editorial policies of the paper would be improved, and the initiation of disciplinary action against the relevant editors, they adopted “majestic liberalism” and limited their judgment to a fine.

Post Scriptum

● In case you missed it, the High Level Panel of Legal Experts on Media Freedom, launched two reports:

  • Providing Safe Refuge to Journalists at Risk, authored by Professor Can Yeginsu, barrister and member of the High Level Panel of Legal Experts on Media Freedom, examines in detail the circumstances which make relocation necessary for journalists at risk today and recommends a new emergency visa for journalists at risk
  • Advice on Promoting More Effective Investigations into Abuses against Journalists, authored by Nadim Houry, Executive Director of the Arab Reform Initiative, human rights lawyer and member of the High Level Panel of Legal Experts on Media Freedom, concludes with three major recommendations including the creation of a standing international Investigative Task Force.

● The Association of Progressive Communications recently held “Internet Rules: Unboxing Digital Laws in South Asia,” an annual capacity-building event that brings together young researchers, journalists, technologists, lawyers and digital rights defenders from the region to enhance their understanding of laws governing online spaces and technology. This year the workshop covered a variety of topics including ICT laws and jurisprudence; access, infrastructure and internet shutdowns; freedom of expression, gender and vulnerable groups; and legal methodology and process, among others. Summaries of the sessions and a Wiki, full of resources, are available.

● The Electronic Frontier Foundation launched How to Fix the Internet a podcast mini-series to examine potential solutions to six ills facing the modern web: the US FISA Court, U.S. broadband access, the third-party doctrine, barriers to interoperable technology, law enforcement use of face recognition technology, and digital first sale.  The episodes dig into the gritty technical details and the case law surrounding these digital rights topics, while charting a course toward how to better defend the rights of users.

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