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.

●UNESCO is hosting a virtual conference titled “The role of the judiciary and international cooperation to foster safety of journalists – What works?” on 1 March between 12pm and 4pm (CET). Panels will explore ways to strengthen the role of the judiciary (judges, prosecutors and investigators) on the national and regional level as well as international mechanisms, such as UN Special Procedures, and other initiatives in combatting impunity for crimes against journalists. Review the schedule here, and please register in advance.

● In “Mineral Sands Resources (Pty) Ltd v Reddell, No place for SLAPPs in South Africa,” Global Freedom of Expression expert Dario Milo and Odette Geldenhuys, partners at Webber Wentzel which acted for the six defendants in the case, discuss the groundbreaking judgment where Deputy Judge President Patricia Goliath of the Western Cape High Court recognised that defendants may in principle raise a SLAPP defence in defamation cases.

● The Cyrilla Collaborative released a new report, Data Protection and Privacy Laws In MENA: A Case Study Of Covid-19 Contact Tracing Apps. Written by Joey Shea, a researcher and analyst specializing in security and political repression, the report analyzes data protection and privacy laws in Qatar, Bahrain, the United Arab Emirates, and Kuwait, as they relate to the deployment of COVID-19 contact tracing applications in those states.

● Ella Jakubowska, Policy and Campaigns Officer at the European Digital Rights, discusses current issues surrounding mass surveillance in the podcast Mass Surveillance and Facial Recognition, produced by the European Data Protection Supervisor. The episode covers the recently approved Global Security Law in France, the use of contact tracing on Covid-19 related apps, along with more conceptual debates such as the difference between public and private surveillance and the idea of “function creep.”

Decisions this Week

Uganda
Kyagulanyi v. Attorney General
Decision Date: January 23, 2021
The Ugandan High Court ruled that the home confinement of presidential candidate, Robert Kyagulanyi – better known as Bobi Wine – constituted unlawful detention and ordered that the confinement be lifted. In the run up to the election, Kyagulanyi was arrested and charged with infringing the existing COVID-19 Rules on gatherings during his campaign but he was released on bail. On the day of the presidential elections in Uganda, members of the Ugandan police force and army surrounded the presidential candidate’s house, maintaining that containing him and his family to their home was necessary to neutralise security threats. Although being denied access to him, the candidate’s lawyers brought a habeas corpus application in the High Court, arguing that his right to personal liberty was being infringed. Nine days after the election, the Court held that the confinement constituted detention and that as the candidate had not been brought to a police station or a magistrate it was unlawful, and ordered that the restrictions on his movements be lifted and his personal liberty restored.

India
Madrasha Teacher’s Association v. State of West Bengal, W.P.A.
Decision Date: January 12, 2021
The High Court of Calcutta allowed the petitioners to hold a sit-in demonstration at a venue outside the Central Park, Kolkata, after directing them to restrict themselves to within the parameters set up by the COVID-19 protocols. The petitioners had filed a writ petition in the Court after their application to hold a sit-in demonstration was refused by the state authorities on “flimsy and inadequate grounds”. The judges held that the petitioners’ fundamental rights to freedom of speech and expression and to peaceful assembly could not be curtailed by the State and that a balance had to be struck between their rights and public order.

Halvi v. State of Kerala
Decision Date: August 20, 2020
The High Court of Kerala refused to pass any guidelines in relation to the regulation of the print and electronic media as requested by the petitioner to counter political and religious polarization. The petitioner had claimed that false and scandalizing news published by the media to malign the image of the judiciary, government functionaries, police force and political leaders violated freedom of speech and expression under Article 19(1)(a) of the Indian Constitution.  The judges held that judicial precedents clearly indicate that the general framing of guidelines for regulation of the press was not permissible and that there were enough safeguards for the redressal of the petitioner’s grievance under other laws including the Press Council Act, 1978 and Article 19(2) of the Constitution.

Ecuador
Constitutionality of Emergency Decree No. 1074
Decision Date: June 29, 2020
The Constitutional Court of Ecuador rendered an opinion on the constitutionality of the Decree No. 1074 signed by the President regarding the extension of the state of emergency during the COVID-19 pandemic. The Court, which upheld the Decree that provided for the mobilization of the Armed Forces and National Police to reestablish “public order” and the suspension and limitation of the rights of freedom of movement, assembly and association, decided to include in its judgement additional considerations in relation to the right of freedom of expression in the context of the pandemic. Mainly, that the Government must develop measures to close the digital divide facing vulnerable and low-income groups and ensure the broadest possible access to information related to the public health emergency. The Court considered that under the circumstances, it was the duty of the authorities to inform the population, and as they do so, act with diligence and give reasoned reports that are science-based. They should also remember that they are exposed to greater scrutiny and to public criticisms, even during special periods.

Brazil
Federal Council of the Brazilian Bar Association v. President Bolsonaro
Decision Date: May 7, 2020
The Supreme Court of Brazil stayed the implementation of a provisional measure which mandated telephone carriers to share all data of their subscribers with the Brazilian statistics agency. After the scheduled census moved from in-person to telephonic interviews as a result of the Covid-19 pandemic, the Brazilian President enacted the measure, on the request of the statistics agency. The Brazilian Bar Association challenged this measure, arguing that it violated the constitutional protections of the right to privacy, the confidentiality of communications, and respect for private life. The Court held that there was a lack of protective measures and transparency in the measure and that its scope was too broad to justify the significant limitations to the rights to privacy and data protection.

Teaching Freedom of Expression Without Frontiers

Stay tuned for new content as soon as some technical issues are resolved!

Post Scriptum

In case you missed it:

● The International Bar Association webinar, “Impeachment: victors’ justice or due process?
Executive accountability and rights to free expression, where are the lines drawn?” is now posted. Baroness Helena Kennedy QC Director, IBA Human Rights Institute moderated a distinguished panel of legal scholars including Professor Laurence Tribe, Harvard University; Professor Philip Bobbitt, Columbia University; Elaine Kamarck, Founding Director of the Center for Effective Public Management at the Brookings Institution; and Jonathan Freedland, political commentator and contributor to the Guardian, London.

● The recent GNI Learning Forum, “What Does the Global Wave of Content Regulation Mean for Human Rights?” brought together a global lineup of legislators and experts from Asia, Europe, and North and South America to consider this critical question. Panelists included GNI’s Independent Board Chair David Kaye; Tom Malinowski (U.S. Congressman, Democrat, New Jersey); Shazia Marri (Member of the National Assembly, Pakistan Peoples Party Parliamentarians, Pakistan); Alexandra Geese (Member of the European Parliament, Group of the Greens/European Free Alliance, Germany); and Agustina Del Campo (Director of the Center for Studies on Freedom of Expression and Access to Information at Palermo University, Argentina). A written summary of the event is also available.

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