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

● Columbia Global Freedom of Expression is pleased to announce the upcoming release of Regardless of Frontiers: Global Freedom of Expression in a Troubled World, edited by Lee C. Bollinger and Agnes Callamard. This volume brings together leading experts from a variety of fields to critically evaluate the extent to which global norms on freedom of expression and information have been established and which actors and institutions have contributed to their diffusion. The authors also consider ongoing and new challenges to these norms, from conflicts over hate speech and the rise of populism to authoritarian governments, as well as the profound disruption introduced by the internet. Together, the essays lay the groundwork for an international legal doctrine on global freedom of expression that considers issues such as access to government-held information, media diversity, and political speech.

● Inforrm’s Blog published an overview of the proposed UK Online Harms Bill which will establish a new statutory duty of care intended to make online companies take responsibility for the safety of their users. The legislation will set out a general definition of harmful content and activity which companies will be required to comply with. Ofcom will be the online harms regulator and it will issue codes of practice which outline the systems and processes that companies need to adopt to fulfil their duty of care.

● The Knight Institute published a “First Amendment Agenda” that identifies 12 actions the Biden administration can take to reaffirm the freedoms of speech, association, and petition in its first 100 days. Their suggestions include: impose new limits on the surveillance of journalists; rescind social-media registration requirements for visa applicants; disclaim the use of the Espionage Act for the prosecution of journalists, sources and publishers; and release the Director of National Intelligence’s report on the murder of journalist Jamal Khashoggi.

Decisions this Week

European Court of Human Rights
The Case of Monica Macovei v. Romania
Decision Date: July 28, 2020
The European Court of Human Rights found that Romania was in violation of Article 10 of the European Convention on Human Rights (“the Convention”) when its domestic appellate courts found the applicant, a member of the European Parliament, guilty of damaging the reputation of a member of Romania’s Parliament. The applicant made statements alleging that certain members of Romania’s Parliament were corrupt as they continued to practice law while being Members of Parliament, which created a conflict of interest. One of the politicians initiated defamation and breach of privacy proceedings against the applicant, alleging that the reference to “corruption” had been defamatory, and claimed over 500,000 Romanian lei (around €117,000) in damages.  The Court found that there was no pressing social need for suppressing the applicant’s freedom of expression in favor of the politician’s reputation. It held that the domestic appellate courts had failed to elaborate on how her comments constituted untruthful statements and did not examine the context in which the comments had been made, mainly to protect public interest. As a result, the domestic courts exceeded their margin of appreciation by finding the applicant guilty and imposing disproportionate fines on her as punishment, which had a chilling effect on her freedom of expression.

Facebook v. CasaPound
Decision Date: April 29, 2020
The Court of Rome dismissed Facebook’s appeal against a preliminary injunction ordering the social network to reactivate the account and restore the pages of the Italian neo-fascist party CasaPound. Facebook claimed that violence and racism by CasaPound’s members amounted to an infringement of its Community Standards allowing Facebook to disable CasaPound’s account. CasaPound submitted that Facebook was not entitled to take into account incidents that occurred outside the platform and, in any event, CasaPound’s reference to historical fascism did not automatically imply its adherence to the racist and discriminatory ideas advocated by the latter. The Court held that Italian law did not prohibit neo-fascist associations in themselves, unless they attempt to reconstruct the Fascist Party of WWII. It also held that the provisions in Facebook’s Terms of Use that support Facebook’s withdrawal of service are only lawful so far as they are interpreted and applied in compliance with the principles of freedom of thought and association.

Gordon v. The Irish Race Horse Trainers Association
Decision Date: March 20, 2020
The High Court of Ireland held that the Irish Horseracing Regulatory Board’s (IHRB) head of security Chris Gordon had been defamed by the Irish Racehorse Trainers Association (IRTA). The case originated from a joint inspection of the yard of horse trainer Liz Doyle by the IHRB and the Department of Agriculture as part of an investigation into the use of performance enhancing drugs. The IRTA alleged that Mr. Gordon had tried to entrap Ms. Doyle into admitting her association with John Hughes, who had already pleaded guilty to possession of anabolic steroids. Mr. Gordon argued that seven defamatory publications by the IRTA evidenced a “campaign by the Defendant to have him removed from his post as head of security.” The IRTA sought to rely on the defense of qualified privilege in five of the impugned statements. The IRTA sought to rely on the defense of qualified privilege in five of the impugned statements. The Court recalled “the defense of qualified privilege amounts to a vindication of the constitutional right to freedom of expression,” even when a defamatory statement injures the claimant’s right to a good name, also protected under the Constitution. Despite the high bar to prove malice, in the third and final ruling on the case, the judge and jury decided in favour of Mr. Gordon’s right to a good name.

Baramidze v. Parliament of Georgia
Decision Date: May 14, 2013
The Constitutional Court of Georgia struck down a provision that criminalized the collection and transfer of any publicly available information to a foreign organization to the detriment of Georgia’s interests as espionage. The claim was brought by civil activists and a person convicted for espionage who argued that the legal definition of the challenged provision was unclear and it could not be inferred exactly which conduct was proscribed. The Constitutional Court of Georgia ruled that the term “foreign organization” in the disputed provision was unduly vague and thus had a chilling effect on freedom of speech. The Court, however, upheld as proportionate the part of the provision which criminalized the collection or transfer of information upon the instructions of the intelligence service of a foreign state to the detriment of Georgia’s interests.

Post Scriptum

● Ben Taub has written a detailed report for The New Yorker on the life and work of murdered journalist Daphne Caruana Galizia, titled “Murder in Malta: After a journalist was assassinated, her sons found clues in her unfinished work that cracked the case and brought down the government.”

● The European Centre for Press and Media Freedom (ECPMF), as part of the Media Freedom Rapid Response, condemns a Maltese court ruling which acquitted proceedings against Neville Gafà, an employee of the Prime Minister, for threats he made on Twitter against Italian journalist Nello Scavo. ECPMF recalled “that verbal threats from government officials and high-profile individuals, in particular, demonise the media and independent scrutiny and can, if left unaddressed, lead to physical acts of violence and reinforce a message of impunity. In Malta, years of verbal threats, attacks on her home, vexatious legal actions and other forms of harassment preceded the assassination of investigative journalist Daphne Caruana Galizia.”

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