Global Freedom of Expression, Columbia University: Newsletter, w/e 6 March 2021

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.

● Following a four-month investigation, UN Special Rapporteurs Agnès Callamard (extrajudicial, summary, or arbitrary executions) and Irene Khan (promotion and protection of the right to freedom of opinion and expression)  issued a 45 page report recommending an independent international investigation into the poisoning of Russian opposition leader Alexei Navalny, stressing the urgent need to ensure accountability of those responsible. The experts found that the attack against Mr. Navalny falls within a wider trend, observed over several decades, of arbitrary killings and attempted killings of Russian citizens and Government’s critics, both within Russia and extraterritorially. “This pattern requires an emphatic and persistent response by the international community to protect the fundamental rights to life and freedom of expression at the foundation of international human rights,” the experts said.

● The CYRILLA Collaborative has launched “Analysing the Impact of Digital ID Frameworks on Marginalised Groups in Sub-Saharan Africa,” a new report authored by Rose Mosero, currently a legal advisor to the Ministry of ICT, Innovation, and Youth Affairs in Kenya. The report aims to address the introduction and implementation of digital identity systems in sub-Saharan Africa, by analyzing regulatory instruments and assessing the effects of the adoption of the systems in remedying the lack of inclusion of marginalised communities.

Decisions this Week

South Africa
amaBhungane Centre for Investigative Journalism v. Minister of Justice; Minister of Police v. amaBhungane Centre for Investigative Journalism
Decision Date: February 4, 2021
The South African Constitutional Court declared various elements of the legislation authorizing interception of communications unconstitutional and invalid. After a journalist learned that his communications had been intercepted, he and an investigative journalism center approached the Court, arguing that the legislation had serious shortcomings and infringed the right to privacy. The High Court held that the law was unconstitutional, and, on appeal, the Constitutional Court confirmed the High Court’s ruling. The Court emphasized that a lack of safeguards within the law prevented oversight and accountability, and the secrecy that covered the interception regime prevented any challenge to orders of surveillance. The Court noted that this secrecy and impunity heightened the risk of abuse and increased violations of the right to privacy.

United States
Hund v. Gov. Andrew Cuomo
Decision Date: November 13, 2020
The United States District Court for the Western District of New York enjoined the Chairman of the State Liquor Authority (SLA) from enforcing a rule that banned advertised and ticketed musical events and food/beverage as part of guidelines to combat the spread of COVID-19. The plaintiff was a musician whose business was to coordinate and contract with venues to deliver such events. However, that activity was halted by the “incidental-music rule” in the SLA Guidelines that only permitted incidental music to continue – a cautionary measure amid the pandemic. The plaintiff challenged the rule, claiming it violated the First Amendment, the Due Process Clause, the Takings Clause, and the Equal Protection Clause of the US Constitution. He sought injunctive relief and the defendants – the Governor and the Chairman – sought a motion to dismiss the complaint. US District Court Judge John L. Sinatra Jr. denied the motion to dismiss in relation to the First Amendment and the substantive due process claims and granted the preliminary injunction. The Court found that the rule was arbitrary and not narrowly tailored, making the First Amendment claim sufficient to survive the motion to dismiss. Given that the claim was likely to succeed, that there was irreparable harm, and that the injunction was in the public interest, the Court granted the injunction against the incidental-music rule portion of the SLA Guidelines.

India
Sarmila v. State of Tripura
Decision Date: November 7, 2020
The High Court of Tripura found that there was strong a prima facie case that the petitioner’s employment transfer from one district to another was illegal. The petitioner had contended that the motivation for the employment transfer was retaliatory rather than administrative, on the ground that the order came immediately after her husband had published critical remarks in the newspaper regarding the inadequate COVID-19 facilities at the government hospital. While underlining the importance of freedom of speech and expression including the freedom of being critical of the public administration and authority, the judge noted that abrogation of freedom could also be indirect. Therefore, on the basis of facts presented, the Court allowed her to discharge her duties at the original post and stayed the transfer order till the final disposal of the petition.

Malawi
Kathumba v. President of Malawi
Decision Date: September 3, 2020
The High Court of Malawi held that the lockdown rules implemented in response to the coronavirus pandemic so significantly impacted fundamental rights that they constituted a derogation of those rights and were therefore unconstitutional. A group of individuals and civil society organizations approached the Court, arguing that the Rules the Minister of Health enacted under the Public Health Act had not been properly implemented and severely infringed a range of constitutionally-protected rights – including the rights to freedom of conscience, religion and association. Although the Minister of Health had revoked the Rules before the hearing, the Court proceeded, holding that it was likely that similar rules could be adopted in the future. The Court found that the restrictions negated the “essential content” of the rights and therefore constituted derogations and not merely limitations of the rights. The Court held that as derogations are only permitted when a state of emergency has been declared and that the rights to freedom of conscience, religion and association could never be derogated, the Rules were unconstitutional.

Colombia
Constitutionality of Legislative Decree 540 of 2020
Decision Date: June 24, 2020
The Constitutional Court of Colombia declared Legislative Decree No. 540 constitutional. The Decree, signed by the President, was enacted under the powers derived from the previous declaration of the state of emergency in the context of the COVID-19 pandemic. The Decree contains two measures aimed at meeting the increased demand for telecommunications services due to the required isolation and social distancing, which created serious challenges for the satisfaction of, among others, the rights to education, work, freedom of expression and access to information. The Court concluded that by reducing administrative burdens for the provision of telecommunications services, as well as the costs of mobile services for the benefit of those with reduced earning capacity, the Decree alleviates hardships resulting from the crisis and contributes to guaranteeing the exercise of fundamental rights and freedoms.

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 Bonavero Institute of Human Rights at the University of Oxford has posted the video of its recent panel The UN Human Rights Committee’s General Comment 37 on the Right of Peaceful Assembly: A Conversation. Christof Heyns, professor of law at the University of Pretoria and a member of the United Nations Human Rights Committee (2017 – 2020) discussed the drafting process as well as what the drafters hoped to achieve and the significance of the General Comment for the right of peaceful assembly. Marko Milanovic, Professor of Public International Law at the University of Nottingham School, responded to his remarks.

● Failure in the Marketplace of Ideas: Censorship and Impeachment. Writing for Jurist, William H. Widen, Professor of Law at the University of Miami School of Law proposes two legal strategies to correct for failures in the marketplace of ideas and counter the spreading of disinformation. The first is to impose costs for “polluting” the marketplace, such as through lawsuits like those brought by Smartmatic and Dominion Voting Systems against those trafficking in falsehoods. The second is to support advance voting and vote by mail to avoid any “October surprises.” He argues that such techniques “counter-speech by promoting more speech–in effect, expanding the free trade in ideas,” while ensuring that the polluters bear the cost, rather than civil society.

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