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

●  UN Experts including director of Columbia Global Freedom of Expression Agnes Callamard (SR on extrajudicial, summary or arbitrary executions), Irene Khan (SR on the right to freedom of opinion and expression) and Clément Nyaletsossi Voule (SR on the rights to freedom of peaceful assembly and of association) have called on France to comprehensively revise its proposed bill on global security on the ground that it is incompatible with international human rights law. In particular, Article 24 restricts the publication of images of police officers, even those documenting abuse, and Article 22 permits use of drone surveillance in the name of security and counter-terrorism which could lead to widespread surveillance of demonstrators and have serious implications for the right to privacy, freedom of peaceful assembly and freedom of expression in the country.

● This Friday, December 11 at 11:30 ET/16:30 UTC​, join AccessNow for a virtual conversation on transparency reporting as a tool for human rights. “Transparency & Tech” will bring together private sector leaders, advocates, and journalists to discuss lessons learned and challenges for the future of transparency reporting. Speakers include representatives from Verizon, Kakao, Ranking Digital Rights, the BHR Group, BSR, Telia Company, SASB, Uber, Reddit, Discord, Google, and Rest of World.

● The Asia Centre released a baseline study “COVID-19 and Democracy in Southeast Asia: Building Resilience, Fighting Authoritarianism” which examines trends under which Southeast Asian governments have used crises as opportunities for their political advantage. The study documents government announcements of emergency decrees and laws, suspension of civil freedoms, corruption of electoral democracy, censorship, digital surveillance measures, and the framing of human rights activists as national security threats. Post-crises, governments then enact long term laws and policies that effectively shrink civic space.

● In case you missed Columbia Global Freedom of Expression’s two panels during The World Press Freedom Conference 2020, “Investigating the Killings of Journalists: Successes, Limitations and Recommendations” and “Dialogue by the Dutch Human Rights Ambassador with Agnes Callamard and Hatice Cengiz,” the videos will be up on the platform until the end of December and are available on UNESCO’s YouTube page.

Decisions this Week

United Kingdom
John Christopher Depp II v. News Group Newspapers Ltd. and Dan Wootton
Decision Date: November 2, 2020
The High Court of Justice of England and Wales dismissed actor Johnny Depp’s libel claim after finding that an article and headline published in The Sun newspaper accusing him of domestic abuse towards his ex-wife Amber Heard were substantially true in meaning. Mr Depp sued The Sun’s publisher, News Group Newspapers, and the article’s author, Dan Wootton for defamation. Pursuant to the defense of truth under the Defamation Act 2013, the defendants sought to prove that the meanings of the article were substantially true, namely that Depp was violent to Heard, “causing her to suffer significant injury and on occasion leading to her fearing for her life.” Justice Nicol specifically evaluated 14 incidents allegedly demonstrating Mr Depp’s abusive behavior towards Ms Heard and concluded, based on a plethora of information about Mr Depp’s conduct and competing versions of events, that a large majority of the incidents and allegations were credible. Thus, they sufficiently met the civil standard of proof in showing that the article was true “on the balance of probabilities.”

European Court of Human Rights
Case of Gelevski v. North Macedonia
Decision Date: October 8, 2020
The European Court of Human Rights (ECtHR) found that the conviction of a columnist for a critical opinion article violated his freedom of expression. The case concerned an opinion article Mr Gelevski wrote where he criticized another journalist, Mr D.P.L. and led to him being criminally convicted for defamation. The Skopje Court of Appeal upheld his conviction and the Constitutional Court dismissed his constitutional appeal. The ECtHR held that the criminal conviction was disproportionate and not “necessary in a democratic society” considering Mr Gelevski’s role as a columnist and Mr D.P.L.’s public profile. The Court found it was important to avoid the “chilling effect”  that criminal convictions would have on the political debate within the media, particularly on important matters. Accordingly, the Court found Mr Gelevski’s freedom of expression under Article 10 of the European Convention of Human Rights had been violated.

Court of Justice of the European Union
The Cases of Privacy International, La Quadrature du Net and Others
Decision Date: October 6, 2020
The Court of Justice of the European Union (CJEU), in two related Grand Chamber judgments, held that EU Law precluded national legislation requiring providers of electronic communications services to carry out general and indiscriminate transmission of traffic data and location data to security and intelligence agencies for the purpose of safeguarding national security. In joined applications by the United Kingdom, France and Belgium, the CJEU sought to determine the lawfulness of national legislation which laid down an obligation for providers of electronic communications services to forward users’ traffic data and location data to a public authority, or to retain such data in a general or indiscriminate way on crime prevention and national security grounds. The Court found that such obligation not only interfered with the protection of privacy and personal data, but was also incompatible with the freedom of expression principle under Article 11 of the EU Charter. The Court, however, laid down that where such a retention is warranted in cases where there is a serious threat to national or public security, the nature of the measure must be “strictly” proportionate to its intended purpose. In addition, the Court also clarified the scope of powers conferred on Member States by the Privacy and Electronic Communications Directive with respect to retention of data for the aforementioned purposes.

United States
WASHLITE v. Fox News
Decision Date: May 27, 2020
The King County Superior Court of Washington State dismissed a claim brought by the Washington League for Increased Transparency & Ethics (WASHLITE), and John and Jane Does against Fox News. The complaint alleged that Fox News was disseminating false, misleading, and incomplete information regarding Covid-19, which had the effect of deceiving the general public, and thereby violated the Consumer Protection Act (CPA). The CPA prohibits deceptive acts or practices in the conduct of any trade or commerce. However, the Court held that the present issue did not fall within the ambit of CPA as a news article was not published “in the conduct of any trade or commerce.” Further, the Court said that the speech in this case involved matters of public concern which was at the heart of the First Amendment’s protection. Acknowledging that the motives in the present case for seeking to curtail or prohibit speech were understandable and could be considered righteous, the Superior Court relied on Supreme Court precedent which affirmed that “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Post Scriptum

● The 2020 PEN America Virtual Gala merged their annual New York Literary Gala and Los Angeles LitFest Gala into one national, virtual celebration. Those honored by the literary and human rights organization included the Chinese organizer and dissident Xu Zhiyong; Darnella Frazier, the teenager who taped the death of George Floyd at the hands of Minneapolis police; and Marie Yovanovitch, the former U.S. ambassador to Ukraine who was a key witness during the impeachment of President Donald Trump.

●  The 2020 RSF Press Freedom Awards Ceremony, which took place on 8th December in Taipei, has awarded Russian journalist Elena Milashina with the Prize for Courage, Afghan radio station Merman with the Prize for Impact, and Egyptian chief editor Lina Attalah with the Prize for Independence. A special prize was also bestowed on Hong Kong’s Apple Daily founder, Jimmy Lai.

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