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

● Global Freedom of Expression and The Knight First Amendment Institute at Columbia University, in partnership with the Committee to Protect Journalists, are hosting a screening and panel discussion of The Dissident, a new documentary which explores the human rights and press freedom issues raised by the murder of journalist Jamal Khashoggi. Panelists include Joel Simon, Executive Director, Committee to Protect Journalists; Agnès Callamard, Director, Global Freedom of Expression, Columbia University and UN Special Rapporteur on Extra-Judicial Executions; Ron Deibert, Director, Citizen Lab, University of Toronto; and Jameel Jaffer, Executive Director, Knight First Amendment Institute at Columbia University. RSVP to receive a time-limited link to view The Dissident and to attend the live online panel discussion: February 24, 7 pm ET. 

● Congratulations to Nani Jansen Reventlow, founding Director of the Digital Freedom Fund and Global Freedom of Expression expert, winner of the 2021 Stefan Riesenfeld Award. The Berkeley Journal of International Law presents the Riesenfeld Award to a legal academic or practitioner that has made an outstanding impact on the development of international law. Jansen Reventlow was recognized for her experience litigating freedom of expression cases in international and national tribunals as well as her forward-thinking digital rights leadership and advocacy.

● The Internet & Jurisdiction Policy Network is developing The Cross-Border Content Moderation Toolkit to support Service Providers, in the design of their content moderation activities and Notifiers in the detection and reporting of problematic or abusive content as well as Legislators and Policy-Makers in determining procedures for dealing with different types of content and abusive behaviour. A Briefing Note about the Toolkit is available here and the official launch will be Thursday, March 18th from 16:00-18:00 UTC.

● Law Professors from the University of California, Irvine have responded in their individual capacities to the Oversight Board’s call for public comments on the indefinite deplatforming of former U.S. President Donald J. Trump from Facebook and Instagram. They argue that while such extreme actions should only be considered as a last report, it was the correct decision. Had Trump been allowed continued access, “he could have provoked additional violence and potentially further undermined the peaceful transition of power which is essential to a working democracy.”

The Knight First Amendment Institute at Columbia University also submitted comments but argued that the board should not address the question of whether Facebook was justified in suspending Trump until Facebook commissions an independent investigation into the ways in which its design decisions may have contributed to the events of January 6th.

Decisions this Week

Chopak v. Patrick
Decision Date: September 10, 2020
The Superior Court of Justice (Divisional Court) of Ontario, Canada allowed the appeal in part of a defamation action brought by Stacey Chopak against Edward Patrick, the President of the Toronto Press Club. The appeal was brought by Mr. Patrick following a ruling by the Small Claims Court that an article he had published online describing a previous defamation settlement with Ms. Chopak was “founded in malice and ill will and spite.” The Superior Court concurred with the lower court that Mr. Patrick was liable for the defamatory statement of fact that Ms. Chopak had “admitted she lied.” In Ms. Chopak’s “Apology to Edward Patrick”, she only admitted to “mistakenly” stating a falsehood. However, the two statements that Ms. Chopak had an “axe to grind” and was a “rat” were found to be expressions of opinion to which the defense of fair comment applied. Accordingly, damages against Mr. Patrick were reduced from $25,000 to $5,000.

Hillson v. State of Manipur
Decision Date: July 16, 2020
The High Court of Manipur ordered the state government to share all information with the general public under the Right to Information Act, 2005 in relation to any action taken by it towards combating the COVID-19 crisis, including action taken in in connection with spending public money on the infrastructure, manpower and facilities in the quarantine centers. The petitioner submitted that there were insufficient quarantine centres in the districts to accommodate all the returning inhabitants such as students and migrant workers and that the facilities provided in the existing quarantine centres in relation to health, infrastructure, food etc. were poorly regulated and inadequate. Further, they did not follow the guidelines or standard operating procedures issued by the WHO and the National Centre for Disease Control. The judges noted that much of the public outcry regarding the quarantine facilities could have been avoided if the necessary information about the available resources had been shared with the public.

United States
Jones v. Heslin
Decision Date: March 25, 2020
The Texas Court of Appeals for the Third Circuit dismissed the appellants’ motion to dismiss and affirmed the district court’s order in favor of the defendant, Neil Heslin, in a case involving a defamation claim against appellants Alex Jones and Owen Shroyer. Neil Heslin’s son, Jesse Lewis, was a victim of the 2012 Sandy Hook Elementary School shooting in Connecticut which claimed the lives of many students and teachers. The appellants’ (who are renowned talk show hosts) had disputed Heslin’s account of the Sandy Hook incident, claiming that statements made by Heslin on a public forum such as him holding his son’s body after the incident, were false. The Court of Appeals dismissed the appellants’ claim that the challenged statements were subjective commentary (rather than statements of fact) entitled to protection as protected speech under the First Amendment, and declared that subjective commentary on disclosed facts which is verifiable as false can be subject to defamation liability.

Freedom Watch v. Google
Decision Date: May 27, 2020
The United States Court of Appeals for the District of Columbia dismissed Freedom Watch’s appeal against the District Court’s decision which had dismissed its complaint alleging violation of the First Amendment, the Sherman Antitrust Act and the District of Columbia Human Rights Act. Freedom Watch had brought a complaint against major technology firms arguing that Google, Facebook, Twitter and Apple intentionally and willfully conspired to suppress politically conservative content which resulted in a dramatic loss of its viewership and user engagement. The Appellate Court held that Freedom Watch’s claim concerning the defendants’ anti-competitive conduct was invalid as no agreement occurred between the platforms, the defendants were not “public accommodations” within the ambit of DC’s anti-discrimination laws, and that the defendants were not quasi-state actors capable of being sued for First Amendment violations for suppression of speech. The Court noted that general allegations of conspiracy to suppress speech without concrete facts was insufficient to warrant a judgment in favor of the appellants.

Teaching Freedom of Expression Without Frontiers

This section of the newsletter features 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:

Media Freedom, Regulation and Trust: A Systemic Approach to Information Disorder
In response to problems such as online disinformation, hate speech and electoral interference, fundamental reforms of media governance are now being discussed in the member states of the Council of Europe, including codes of conduct, changes in the liability of intermediaries and new offences of electoral manipulation and disinformation. Processes of media reform inevitably entail challenges for media freedom, and the potential for established standards to be undermined. The report explores four dimensions to the recent attempts to reform media law in light of the changing media landscape: 1) trust in the media, 2) media change and trust, 3) the rush to media reform, 4) the danger of overreaction and “knee-jerk” regulatory responses.

Rushing to Judgment: Are Short Mandatory Takedown Limits for Online Hate Speech Compatible with The Freedom of Expression?
Unmediated and instant access to the global digital sphere has gone hand in hand with the amplification and global dissemination of harms, including online extremism and disinformation. In response, more than 20 states around the world have adopted laws imposing “intermediary liability” on social media platforms. The objective of this report is a preliminary and indicative attempt to sketch the duration of national legal proceedings in hate speech cases in selected Council of Europe States. The length of domestic criminal proceedings is then compared with the timeframe within which some governments require platforms to decide and take down hate speech under laws such as the German Network Enforcement Act.

Post Scriptum

● The Office of Communications (Ofcom), the UK government regulatory and competition authority, has issued two reports:

● Comapritech published a study comparing legislation in 200 countries titled Encryption laws: Which governments place the heaviest restrictions on encryption? The report examines which countries a) require encryption providers to decrypt data for law enforcement purposes, b) require encryption users to decrypt data for law enforcement purposes, c) require licenses for producing or manufacturing encryption services/products, d) have import/export limitations for cryptography services/products, and e) don’t have a “personal use exemption” for those traveling with encrypted laptops.

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