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.

● Strasbourg Observers has announced the winners in their poll for best and worst ECtHR judgments of 2020. In the category of best judgment, the winner is… Selahattin Demirtaş v. Turkey (no. 2)! In this case, the Grand Chamber found that Selahattin Demirtaş, former co-chair of the opposition Peoples’ Democratic Party (HDP), had been unlawfully detained and that there had been a violation of his freedom of expression due to a constitutional amendment which limited political speech.

● Writing for the Atlantic, Law Professor Steve Vladeck discusses the rising problem of the US Supreme Court’s so called “shadow docket,” decisions made outside its regular docket without oral argument. During the Trump administration, 41 such requests for emergency relief were made in four years, up from 8 over the previous 16 years. The most recent wave related to the 2020 election, COVID-19 restrictions and executions. Vladeck observes that “for an institution whose legitimacy depends largely on the public’s perception of its integrity, the growth of unseen, unsigned, and unexplained decisions can only be a bad thing.”

● Join CASE, The Coalition Against SLAPPs in Europe, for the launch of its new website on 26 March, 11:30am CET. CASE is a coalition of NGOs from across Europe representing a range of different public watchdogs united in recognition of the threat posed to their work by Strategic Lawsuits Against Public Participation (SLAPPs), abusive lawsuits designed to silence critical speech. RSVP to join this virtual event and panel discussion before 19 March.

Decisions this Week

South Africa
Mineral Sands Resources (Pty) Ltd v. Reddell; Mineral Commodities Limited v. Dlamini; Mineral Commodities Limited v. Clarke
Decision Date: February 9, 2021
The Western Cape High Court, South Africa held that a series of defamation suits brought against environmental attorneys and activists constituted SLAPP suits and dismissed the suits – a first in South African law. After six attorneys and activists received summons from two, related mining companies seeking exorbitant damages for defamation they filed a special plea, arguing that the suits were an abuse of legal process. The activists argued that the only reason the companies were suing them was to silence their activism and submitted that the Court should dismiss the suits. The Court recognized the importance of public debate on environmental issues, and identified that the companies’ defamation suits were not genuine but were an attempt to silence opposition to their operations. The Court noted that although there was no anti-SLAPP legislation in South Africa, this case “matches the DNA of a SLAPP suit” and ruled in favour of the activists [para. 66].

Hélio Schwartsman v. Minister of Justice and Public Security
Date of Decision: August 25, 2020
A Brazilian Superior Court stayed the investigation into a journalist who had written an article describing the positive outcomes if President Jair Bolsonaro died. The article was written soon after the President tested positive for Covid-19 and argued that his death would save lives, since it would put an end to rhetoric of downplaying the pandemic. The Minister of Justice ordered the Federal Police to initiate an investigation into the journalist for possible violations of the National Security Act. The Court stayed the investigation, holding that the journalist’s alleged conduct did not meet the National Security Act’s requirement of actual or potential harm to territorial integrity, to sovereignty, or democracy.

Constitutionality of Legislative Decree 516 of 2020
Decision Date: June 17, 2020
The Constitutional Court of Colombia rendered an opinion on the constitutionality of Legislative Decree No. 516, which was enacted under the powers derived from the declaration of the state of emergency in the context of the COVID-19 pandemic. Article 1, which provided for the reduction of the national screen quota during the State of Economic, Social and Ecological Emergency, was deemed unconstitutional. The national screen quota is an instrument that obliges broadcast television operators on national, regional and local channels to include national productions in their programming schedule at certain times and with fixed percentages. The Court concluded that the reduction of the national screen quota may disproportionally affect the right to culture given that the essential public service of television contributes to the development of culture.

Umesh Kumar v. State of Uttrakhand
Decision Date: October 27, 2020
The High Court of Uttarakhand held that the mere leveling of false allegations against the government or its functionaries cannot be sedition, unless it incites violence and disturbs public peace. The Chief Minister of Uttarakhand brought the case in response to a video posted on social media by journalist Umesh Kumar Sharma, which alleged the minister was engaged in corruption. Although some of the allegations were proven false, the Court rejected the State’s argument that Kumar intentionally spread lies to foment hatred against the Government. The Court affirmed that criticism of government action, even when strongly worded, is consistent with the fundamental right of freedom of speech and expression. The judge further emphasized that in a democracy, dissent should always be respected.

NPC International d.o.o. Banjaluka and Others
Decision Date: December 16, 2017
The Constitutional Court of Bosnia and Herzegovina (CCBH) found that judgments of the Basic Court and the Banjaluka District Court that had held the appellants liable for defamation amounted to a violation of their right to freedom of expression. The three appellants (the journalist, the editor, and the owner of the media) appealed against the judgments of the lower courts, claiming that those courts failed to examine the whole context of the case. They argued that the lower courts relied on just one element of the context, namely, the veracity of statements of facts, and held the appellants liable because they had not proved that all of their statements were true. In this case, the Constitutional Court opined that the lower courts did not act in accordance with the European standards on protection of freedom of expression and, thus, the interference was not necessary in a democratic society.

Teaching Freedom of Expression Without Frontiers

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

Post Scriptum

● Oxford University Professor Philip N. Howard writes that “[t]o quash disinformation, researchers must work with journalists.” Howard argues that since disinformation is a global problem, it needs global solutions and cooperation among academics, journalists, and other independent researchers, to both improve the quality of their reporting and to aggregate knowledge and experience in systematic ways for the public good.

● ARTICLE 19 discusses whether and how [d]oes the EU Digital Services Act protect freedom of expression? The Digital Services Act seeks to protect users’ fundamental rights and make “Big Tech” accountable to public authorities through new significant transparency and due diligence obligations. Whether it will be successful at protecting freedom of expression from undue restrictions or reining in the power of Big Tech rather than cementing it, is, however, questionable.

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