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.

● In cooperation with UNESCO, Global Freedom of Expression has published two new collections of case analyses:
  •  A collection of 33 case analyses from the English database translated into French. The collection includes analyses of 24 landmark cases establishing international standards on freedom of expression, as well as 9 progressive decisions pertaining to COVID-19.
  • A collection of progressive COVID-19 case law from around the world that upheld international standards during a global pandemic when fundamental freedoms were under increased threat in the name of public health and security. The case law represented in this collection struck a balance between protecting freedom of expression and public safety and personal privacy. Nine of the case analyses are also available in Spanish.

● The Internet & Jurisdiction Policy Network (I&JPN) launched a series of Toolkits, a landmark policy resource for policymakers and practitioners seeking to develop better policies for the digital era. The I&JPN Toolkits are the result of broad consultations with key policy actors who have collaborated to develop interoperable solutions to three concrete cross-border legal challenges including cross-border access to electronic evidence, content moderation and Domain Name System-level action to address abuses.

● Matthew Caruana Galizia: Those who are responsible for my mother’s death should be in jail. In an exclusive interview for Cenzolovka, Global Freedom of Expression researcher Marija Sajkas spoke with Matthew Caruana Galizia about fighting the impunity for the killing of his mother (investigative journalist Daphne Caruana Galizia), living with constant threats and fears, an effort by the past president of the European Commission to protect the former president of Malta, and the importance of solidarity and the Daphne Project without which none of the perpetrators would likely be apprehended.

● Supporting Journalism: What we can learn from other countries. Columbia University professor and Global Freedom of Expression expert Dr. Anya Schiffrin is hosting a webinar to discuss policy measures tried in different countries to support media outlets, ranging from tax subsidies to vouchers for news and new laws addressing inequality in bargaining power between news content producers and digital platforms, as well as recent US legislation to support local news. Panelists include Taylor Owen (Research Fellow at the Tow Center for Digital Journalism), Steve Waldman (President and Co-Founder at Report for America), Julia Cagé (Assistant Professor of Economics in the Department of Economics at Sciences Po Paris), and Edward Greenspon (President & CEO at Public Policy Forum). 25 March at 11am EST. Register here.

Decisions this Week

Republic of Georgia
Sajaia v. Parliament and Government of Georgia
Decision Date: February 11, 2021
The Constitutional Court of Georgia held that the Parliament of Georgia did not violate the freedom of assembly by delegating to the Government of Georgia the authority to adopt regulations on isolation and quarantine to prevent the spread of Covid-19. The delegated authority empowered the Government to promulgate the “quarantine measures” and restrict specific constitutional rights, including freedom of assembly, to manage the Covid-19 crisis. Subsequently, the Government, among other things, restricted people’s outdoor movement from 21:00 to 05:00; and limited people’s assemblies related to social events (e.g., wedding parties, funeral repasts, etc.) up to 10 persons. According to the applicants, the delegated authority was indefinite; the Parliament of Georgia should have defined the content and extent of restriction on each human right before delegating concrete powers to the Executive. However, the Constitutional Court concluded that Parliament delegated its authority to the Government with sufficient precision; the law defined the purpose, content, and extent of the delegation, and no fundamental and exclusive competency of the legislator was granted to the Executive in the given case.

United States
Parler v. Amazon Web Services
Decision Date: January 21, 2021
A District Court in Seattle, the United States dismissed a social media platform’s application for a preliminary injunction to prevent its web hosting service suspending those services. After the riots at the US Capitol in January 2021, the web hosting service informed the social media platform that it had breached the service level agreement and acceptable use policy by not taking action against posts on the platform which incited violence. The social media platform then approached the Court, arguing that by suspending the service the web hosting service had, inter alia, breached the contract between them. The Court held that the social media platform had failed to meet the requirements for a preliminary injunction, and emphasized that it was in the public interest to not privilege abusive and harmful social media content over contractual obligations.

European Court of Human Rights
Lilliendahl v. Iceland
Decision Date: June 11, 2020
The European Court of Human Rights found that the conviction and penalization of applicant Carl Johann Lilliendahl for homophobic comments posted underneath an online news article did not amount to a breach of his freedom of expression under Article 10 of the European Convention of Human Rights. The Icelandic courts had convicted the applicant for publicly making “serious, severely hurtful and prejudicial” comments regarding sexual orientation and gender identity, in the wider context of increased education and counselling about LGBTI issues in schools. Whilst the applicant’s comments did not explicitly constitute a call for violence, the use of derogatory language and clear expressions of disgust amounted to promoting the intolerance of homosexual persons, and thus constituted hate speech. Considering the case as a whole, including the severity of the fine imposed and the lack of contribution to public discourse, the Court did not find the interference with the applicant’s right to freedom of expression to be excessive and unnecessary in a democratic society.  Rather, the Court endorsed the Icelandic authorities’ decision in favour of protecting the rights of social groups that have been traditionally discriminated against, and upholding rights to respect for private life and equal enjoyment of human rights for all.

Gupta v. Herdsceneand
Decision Date: February 11, 2020
The Delhi High Court in India initially ordered Instagram and search engines to remove anonymous #MeToo allegations of sexual harrassment against artist Subodh Gupta which appeared on an Instagram handle called Herdsceneand. Gupta filed a defamation suit against Herdsceneand arguing that his reputation had been damaged due to the allegations in the post and, as a result, art galleries were refusing to display his artworks. Herdsceneand argued that disclosing the identity of its administrator(s) would cause it ‘harm for which sufficient protection was not available in the legal system’. Further, it contended that victims of the sexual harassment in such #MeToo cases face a large number of issues and thus they must be permitted to stay anonymous. Although the Court allowed the administrator of Herdsceneand to maintain its anonymity, it ultimately dismissed the case in favour of Gupta after he reached an agreement with Herdsceneand to remove the post and express regret for posting it.

Khan v. Quintillion Business Media
Decision Date: May 9, 2019
The Delhi High Court in India ordered the removal of two allegedly defamatory articles from media house, Quintillion Business Media’s web port against Zulfiquar Khan that contained #MeToo allegations. In response, Khan filed a defamation suit against Quintillion Business Media and sought a permanent injunction to take down the original articles and to remove references to the articles from search engines. In ordering the removal of the impugned articles the Court recognised Kahn’s right to reputation and privacy as well as his right to be forgotten and the right to be left alone. It held that since had been ordered to remove the claims, it would not be permissible for other news platforms/websites to republish those claims otherwise it would lead to an endless cycle of suspicion and animosity towards Khan.

Teaching Freedom of Expression Without Frontiers

This section of the newsletter features teaching materials focused on global freedom of expression which are newly uploaded on Freedom of Expression Without Frontiers.

“Investigative Journalism and Terrorism: the Proactive Legal Duty to Report”
Richard Danbury’s chapter in the 2019 volume Journalism, Power and Investigation: Global and Activist Perspectives explores the legal and normative duties of investigative journalists to proactively supply law enforcement with information uncovered regarding terrorist activity. Though Danbury explains that journalists may have a duty to inform the state if they learn of an imminent attack, a proactive duty in other cases may risk compromising the work and safety of journalists.

“Can You Keep a Secret? Legal and Technological Obstacles to Protecting Journalistic Sources”
Richard Danbury and Judith Townend’s chapter in the 2019 volume Journalism, Power and Investigation: Global and Activist Perspectives explores the practical implications of technological advances and legal structures on the assumption that “journalists should protect a source…whatever the personal and organisational cost.” They conclude that at the individual level, ethical codes should require journalists to warn sources of vulnerabilities before offering assurances of anonymity, while organisations should train journalists on how to have these conversations.

Post Scriptum

● “The Indian government has taken various measures that violate free expression and privacy rights in response to growing international criticism of its handling of the farmers’ protests,” according to Access Now, ARTICLE 19, the Association for Progressive Communications, the Committee to Protect Journalists, Derechos Digitales, the Electronic Frontier Foundation, Human Rights Watch, Mnemonic, Reporters Without Borders, and WITNESS. The Indian government has employed a range of tactics to silence those challenging its policies “including shutting down the internet at protest sites, preventing journalists from entering protest sites, filing baseless criminal charges against journalists reporting on protests, and using a draconian law to press social media companies to block critical content.”

● Colombian Government representatives withdrew from the first day of a virtual public hearing at the Inter-American Court to determine the state’s responsibility in the 2000 abduction, rape, and torture of journalist Jineth Bedoya.  The outcome of this case will have important implications for the rights of female journalists to protection from sexual violence and their right to reparations when States fail to protect fundamental rights. The Colombian Government is demanding the recusal of five of the six judges on the grounds of bias. The Committee to Protect Journalists and IFEX have condemned the move.

● Facebook has launched a corporate human rights policy, covering all of Facebook Inc, and established a fund to support human rights defenders. The new policy is based on international human rights law and the United Nations Guiding Principles on Business and Human Rights. They will further issue a public report annually on how they are addressing human rights concerns stemming from their products, policies or business practices.

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