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

● To mark the launch of their forthcoming edited volume Regardless of Frontiers: Global Freedom of Expression in a Troubled World, Columbia University President Lee C. Bollinger and Dr. Agnes Callamard engaged in a conversation moderated by Professor Mark Mazower about how global norms on freedom of expression have been established over the last 70 years, and which actors and institutions have contributed to developing them and which ones are undermining and constraining them. Watch on YouTube.

● Writing for the Strasbourg Observers, Columbia Global Freedom of Expression expert Dirk Voorhoof and Inger Høedt-Rasmussen discuss the recent European Court of Human Rights decision in Tölle v. Croatia where the Court found the criminal conviction for insult to be a form of censorship, which might have discouraged the applicant from promoting her organisation’s statutory aims of protecting and supporting women victims of domestic violence.

● The South African Supreme Court of Appeal handed down a significant judgment on defamation law, Manuel v Malema, on 17 December 2020. In a blog about the ruling, Columbia Global Freedom of Expression expert, Dario Milo discusses the three failed defenses and critiques the Court’s decision that the quantum of damages and apology relief would have to be settled in trial court.

● In a big win for the Open Society Justice Initiative, a federal judge in the Southern District of New York has ordered the Trump administration not to enforce an executive order that effectively prevented human rights lawyers from collaborating with the International Criminal Court (ICC) on cases of war crimes, crimes against humanity, and genocide.

Decisions this Week

United States
Grant Turner v. U.S. Agency for Global Media
Decision Date: November 20, 2020
The United States District Court for the District of Columbia granted a preliminary injunction against actions taken by senior management at the U.S. Agency for Global Media (USAGM) that likely violated the First Amendment. The case concerned six plaintiffs from USAGM, one of whom was the Program Director of the news outlet Voice of America (VOA). They objected to the actions of USAGM CEO Michael Pack and five others at USAGM, who were accused of interfering with personnel, interfering with content, investigating journalists, instituting controlling policies, and mismanaging USAGM. The plaintiffs claimed that these actions violated a host of rules and statutes, most notably the First Amendment. Chief Justice Beryl A. Howell determined that all the violation claims failed on a jurisdictional basis except for the violation of the First Amendment. The Court agreed that free speech protections did apply to VOA journalists. Upon reviewing each of the defendants’ actions, it noted that there was a violation of the First Amendment and that actions against the VOA journalists resulted in “self-censorship and the chilling of First Amendment expression.” In particular, actions related to interference with personnel, interference with content, and investigations into journalists exceeded any permissible oversight and were likely unconstitutional.

Die Grünen v. Facebook Ireland Limited
Decision Date: September 15, 2020
The Austrian Supreme Court ruled that Facebook must cease and desist from the publication of all hate postings, verbatim re-postings or re-postings using words having an equivalent meaning against Austria’s Green party leader, Dr. Eva Glawischnig, and delete them not just in Austria but worldwide. The case was brought by Austria’s Green party after the party’s head, Dr. Glawischnig, was insulted on Facebook by posts from someone who did not use his or her real name. The claimant sought a preliminary injunction, which included the obligation to delete verbatim renderings of the unlawful content or content of equivalent meaning. The Court affirmed that the assertions were defamatory value statements, which were clearly aimed at insulting and vilifying Dr. Glawischnig personally and therefore being unlawful. Referring to a preliminary ruling of the Court of Justice of the European Union (CJEU), the Court held that an obligation of a social network provider to monitor and delete verbatim content or content equivalent to the content that was declared unlawful has to be sufficiently specific and proportionate. It found that the cease and desist injunction imposed on Facebook was sufficiently specific in regard to the required conduct and did not impose a disproportionate or excessive duty on Facebook to monitor its content.

The Case of Enrique Santos (Fake News)
Decision Date: June 16, 2020
The Federal Criminal and Correctional Chamber in Argentina revoked a magistrate’s order directing Google to remove certain URLs from its index globally. Google argued that the order affected the information available in other countries, and therefore violated the principle of state sovereignty. The Court held that the magistrate’s order impacted domains and services subject to foreign law and, as such, not only violated national laws of other countries but also implied that an Argentinian magistrate had the power to decide the content that was found and read on the internet by people around the world.  Consequently, the proliferation of such orders would cause significant interference with freedom of expression and the constitutional right to seek, receive and disseminate information freely because each state could exercise control over the content available to citizens of other countries.

Post Scriptum

● Suing to Silence: Lawsuits Used to Censor Bosnian Journalists. Balkan Insight reports that public officials are behind the overwhelming majority of defamation cases brought against Bosnian journalists, dragging them through expensive and often lengthy court proceedings that make many think twice about the stories they choose to write.

● Based on a series of experiments with a total of 2,634 participants looking at why people share false material online, Tom Buchanon argues in a post for NiemanLab that best way to react to fake news — and reduce its impact — may be to do nothing at all. Engaging with potentially false information, even to refute it, can result in spreading it further or even leading people to believe it is true since they have seen it before.

● In an op-ed for the The New York Times, Have Trump’s Lies Wrecked Free Speech?, Thomas Edsall interviewed leading legal scholars for their views on how the US should “go about restraining the proliferation of flagrant misstatements of fact in political speech” and whether the First Amendment itself  has become a threat to democracy.

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