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

● Justitia´s Future of Free Speech project has issued a report Rushing to judgment: Are short mandatory takedown limits for online hate speech compatible with the freedom of expression? The report urges states, international organizations, social media platforms and civil society, more broadly, to move towards procedures and processes which include adequate time frames for reviewing content, respect the principles laid out by Article 19 of the ICCPR and are mindful of the harmful impact of over-removal on the global ecosystem of freedom of expression and information.

● The Global Network Initiative (GNI) hosted a panel discussion with legislators from around the world to consider “What Does the Global Wave of Content Regulation Mean for Human Rights?” In dozens of countries around the world, lawmakers are putting forward new proposals to tackle vexing challenges around online content, from incitement to violence to disinformation, and from hate speech to child protection. The panel discussion builds on GNI’s recent policy brief which presents recommendations for how to put human rights at the center of future content regulation.

● The Association for Progressive Communications, in cooperation with the Cyrilla Consortium, has issued a new report titled Jurisprudence Shaping Digital Rights in South Asia. The report focuses on key jurisprudence on issues relating to access to the internet, network shutdowns, right to privacy and freedom of expression. Specific cases included in the report address whether privacy is protected as a fundamental right, whether state surveillance mechanisms are valid and if they are, how they are regulated, and concerns over national identity programmes.

Decisions this Week

South Africa
Economic Freedom Fighters v. Manuel
Decision Date: November 17, 2020
The Supreme Court of Appeal in South Africa upheld a High Court ruling that a political party had defamed a former politician by calling him “corrupt and nepotistic” and describing a process over which he was presiding as “secretive”. The former politician had approached the High Court after the political party posted a statement on Twitter, claiming that the statement was false and damaging to his reputation. Although the High Court dismissed the defenses of truth, public interest and fair comment, it considered that the defence of reasonable publication – previously restricted for use by the media – was available to non-media defendants as well. The Supreme Court of Appeal noted that the political party had acted with malice and had relied on untruths when making its statement, and therefore had unlawfully and wrongfully defamed the politician. However, the Supreme Court of Appeal refused to accept the extension of the defence of reasonable publication, and also found that the High Court had incorrectly quantified the damages to be awarded and so referred the matter back to the High Court for determination of an appropriate remedy.

Wham Kwok Han Jolovan v. Public Prosecutor
Decision Date: November 6, 2020
The Court of Appeal of Singapore found the permit policy for organizing public assembles under the Public Order Act was a constitutionally valid derogation from Article 14(1) of the Constitution of the Republic of Singapore, which protects the right of peaceable assembly.  The Applicant, Mr Wham Kwok Han Jolovan, had failed to obtain a permit in respect of a public event organised by him for the purpose of discussing what he referred to as “the role of civil disobedience and democracy” in effecting social change. The Court found section 16(1)(a) of the Public Order Act to be valid under the Constitution despite the restriction it imposed on the right of Singaporeans to assemble peaceably because the whole permit system came within the range of permitted purposes of derogations allowed under Article 14(2)(b) of the Constitution. Accordingly, the Court found that there was no reason to set aside the Applicant’s conviction under the section.

Wham Kwok Han Jolovan v. Attorney-General
Decision Date: March 16, 2020
The Singapore Court of Appeal dismissed appeals on conviction, sentence and costs brought by the first two persons to be convicted for scandalising contempt under s 3(1)(a) of the Administration of Justice (Protection) Act 2016. The first appellant had posted on Facebook to the effect that Malaysia’s judges were more independent than Singapore’s for cases with political implications. The second appellant had published a post containing a link to the first appellant’s post and stating that by charging the first appellant for scandalising the judiciary, the Attorney-General only confirmed what he said was true. The Court reasoned that a reasonable person reading the posts would conclude that they posed a risk of undermining public confidence in the administration of justice and that the first appellant’s post objectively and plainly entailed a direct attack on the independence and integrity of Singapore’s Judiciary. The Court also dismissed part of an appeal by the Attorney-General in respect of an apology order against the appellants, but allowed the part of the appeal in respect of a cease-publication injunction against the first appellant.

Campaign against Hate Speech v. State of Karnataka
Decision Date: May 13, 2020
The High Court of Karnataka refused to pass any order directing the government to frame guidelines in relation to hate speech. The public interest litigation was filed by the Campaign for Hate Speech, an unregistered organization in India, arguing that the government had failed to take appropriate action against the media houses and political leaders indulging in targeting a particular religious community for the outbreak of COVID-19. The judges held that the Indian parliament had not yet thought it appropriate to legislate on the concept of hate speech and a decision in this regard would be outside the purview of judiciary. Furthermore, the judges opined that that there were already substantial and effective remedies in existence for the protection of persons from hate speech in the Indian criminal law.

Post Scriptum

● The enduring allure of conspiracies: Conspiracy theories seem to meet psychological needs and can be almost impossible to eradicate. This NiemanLab article explores whether conspiracy theories are truly more prevalent and influential today, and whether the communications of former U.S. President Donald Trump epitomize a new type of “conspiracy without theory” that relies on sheer assertion and repetition rather than evidence and reason. It further proposes a remedy to keep conspiracy theories from taking root in the first place.

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