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

● In amaBhungane’s Rica victory: Big Brother can no longer watch us with impunity, Dario Milo ( partner at Webber Wentzel, member of the Neuberger High-Level Panel of Legal Experts of Media Freedom, and Columbia Global Freedom of Expression expert) discusses a recent landmark decision by the South African Constitutional Court which “ruled in favour of investigative journalism organisation amaBhungane, striking down the unfettered powers of the state to individual and bulk surveillance of data and communications,” in a major victory for the right to privacy.

● Rep. Adam Schiff (D-CA) introduced the Jamal Khashoggi Press Freedom Accountability Act to ensure that the United States holds accountable those who commit extrajudicial killings and other gross violations of human rights against journalists. This legislation would prohibit U.S. foreign assistance to government entities and levy targeted sanctions against individuals that perpetrate gross human rights violation against journalists, and would require the Department of State to document incidents of online harassment and electronic surveillance of journalists in its annual Human Rights Reports.

● Peter Micek (General Counsel at AccessNow and Global Freedom of Expression Expert) and  Jenny Stein (Special Advisor for Internet Freedom and Business and Human Rights, U.S. Department of State) will present the key note address, “Human Rights Due Diligence and Surveillance Technologies” at the 11th Advanced Global Forum on Global Encryption, Cloud & Cyber Export Controls Conference on 17 March 2021.

Decisions this Week

United States
Open Society Justice Initiative v. Trump
Decision Date: January 4, 2021
The United States District Court for the Southern District of New York enjoined members and agencies in the Trump Administration from enforcing an executive order which would have prevented interaction between the International Criminal Court’s (ICC) Office of the Prosecutor and various law professors and a law center. The executive order had been enacted after the Office of the Prosecutor announced that it would be investigating allegations of international crimes committed in Afghanistan – including by US and allied officials. The professors and law centre regularly worked with and supported the Office of the Prosecutor, and argued that the executive order infringed their right to freedom of expression under the Constitution’s First Amendment by preventing them from engaging in certain speech to support the ICC and by exposing them to penalties for engaging in that speech. Although the Court found that there was no likelihood for success on other claims made by the plaintiffs, the Court held that they had demonstrated that there was a likelihood of success on the First Amendment claim, that there would be irreparable harm if an injunction was not granted, and that the balance of equities weighed in favour of granting the injunction. The Court emphasized that although there were national security and foreign policy interests motiving the executive order, the order was too broad and provided a chilling effect on the exercise of First Amendment rights.

Kush Kalra v. Union of India
Decision Date: December 9, 2020
The Supreme Court of India held that neither the State Government nor the Union Territory could paste posters outside the residence of COVID-19 positive persons. The petitioner had contended that affixing posters outside the residences of COVID-19 positive patients violated  fundamental rights, including the right to privacy and right to life with dignity. The judges agreed that such a practice was unnecessary, counter-productive, and would lead to stigmatization of people and their treatment as ‘untouchables’. While the judgment was silent on the privacy aspect, as the orders had been withdrawn by different State governments, the judges did hold that such an action could be taken only after directions from the competent authority.

Ong Ming Johnson v. Attorney General
Decision Date: March 30, 2020
The Singapore High Court held that a provision criminalizing male same-sex sexual conduct did not infringe the rights to freedom of expression, equality, and life and personal liberty. Although the High Court had held that the provision was constitutional in 2012, three men brought separate applications arguing that new material and comparative foreign jurisprudence ought to be considered by a court in determining whether the provision remained valid in the country. The Court held that although “expression” could be interpreted to include an expression of sexual identity, the right in Singapore did not contemplate a standalone right to freedom of expression, divorced from the right to freedom of speech, and that, therefore, “expression” within the phrase “freedom of speech and expression” had to be read in light of the term “speech” and so was limited to verbal speech or verbal communication.

Teaching Freedom of Expression Without Frontiers

This new section of the newsletter will offer every week teaching materials focused on global freedom of expression, and uploaded on Freedom of Expression Without Frontiers. Developed by Columbia Global Freedom of Expression with partners from around the world, the portal offers academic and training resources on the laws, institutions and actors that have founded a global system of freedom of expression and information. The website is organized around nine Teaching and Training Modules and the new materials this week include:

Taking Action to Protect Journalists and Other Media Actors in Council of Europe Member States
Journalists work in an increasingly hostile climate in which threats against them come from political leaders and denigration of their work is being normalized. This situation constitutes a terminal threat to democracy and defies international standards on freedom of expression and the safety of journalists adopted by Member States under the auspices of the Council of Europe. This report addresses the issue and the urgent need for Member States to take action by first exploring 1) the decline in protections for journalists, 2) international standard-setting, and 3) the urgent need for implementation, before offering recommendations.

Covid and Free Speech: The Impact of Covid-19 and Ensuing Measures on Freedom of Expression In Council of Europe Member States
“This report is intended as a stocktaking of the impacts of the pandemic as well as the measures that were introduced to contain the virus on the media and the enjoyment of the right to freedom of expression in Council of Europe member states. The aim of this report is to identify trends in 2020, identify promising practices and contribute to effective policy solutions in the face of a major crisis, thereby strengthening member states’ resilience against further challenges ahead.” The report explores the impacts of measures taken by authorities to contain COVID-19 under four headings, 1) legal and regulatory frameworks; 2) the safety of journalists and others who speak up; 3) the media environment; and 4) the promotion of quality journalism and media literacy.

Post Scriptum

● TOP10VPN’s annual report, The Global Cost of Internet Shutdowns in 2020, analyzes every major intentional internet shutdown in 2020 and reveals that they cost a world economy already devastated by the pandemic a further $4BN – with India bearing the brunt at $2.8BN. According to the report, there were 93 major shutdowns in 21 countries affecting 268M people in 2020.

● Access Info Europe is currently seeking independent, country-level researchers for several European countries to act as national researchers for the first edition of the Global Data Barometer (2020–2021). Deadline: 14 February 2021.

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