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.

● Columbia Global Freedom of Expression wishes to thank Dr. Agnès Callamard for her remarkable leadership over the last six years. Her vision for fostering global norms on freedom of expression enabled the Case Law Database, the Global Freedom of Expression Prizes, a MOOC, the Teaching Portal, and the book Regardless of Frontiers, among many other achievements. In her role as UN Special Rapporteur on extrajudicial, summary or arbitrary executions, her courage to investigate some of the world’s most heinous human rights abuses – including that of the killing of Jamal Khashoggi –  has challenged the impunity of some of the world’s most autocratic regimes. We at Columbia Global Freedom of Expression will continue the important work she started and we wish her great success in furthering human rights protections in her new role as Secretary General of Amnesty International.

● Flouting two European Court of Human Rights rulings, including the recent Grand Chamber judgment in Selahattin Demirtaş v. Turkey (no. 2) (see analysis below), a Turkish court has sentenced Selahattin Demirtaş, Kurdish minority leader and co-founder of the Peoples’ Democratic Party (HDP) to 3 years and 6 months in jail for insulting President Recep Tayyip Erdoğan. The ECtHR found his pre-trail detention to be motived by the “ulterior purpose of stifling pluralism and limiting freedom of political debate” and the most recent decision convicted Turkey for “multiple violations of the European Convention of Human Rights, specifically of rights to liberty and security, freedom of expression, free elections, lawful detention and trial within a reasonable time.”

● The University of Dayton School of Law is hosting an online panel discussion on “Fake News” and the First Amendment. The panel includes three leading First Amendment scholars, Helen Norton, Jonathan Varat and Eugene Volokh, who will use a model state statute banning fake news as a vehicle for exploring whether “fake news” can be banned under existing First Amendment precedents and if so, whether it should it be banned as a matter of public policy. Here is an introduction presenting arguments for and against. The event will be on Wednesday, March 31, 2021 from 3:30 – 5 p.m. (EDT). Please register.

● Morocco’s new tactic to punish journalists: charge them with sex crimes. According to the Committee to Protect Journalists “Moroccan authorities are using trumped up sexual assault and ‘morals’ charges to retaliate against these and other journalists for their reporting. And this has instilled a sense of fear among members of the press in a country that already had a reputation for surveilling and imprisoning journalists who report critically on the king or on protests.”

Decisions this Week

Alternative für Deutschland (AfD) v. Federal Office for the Protection of the Constitution of Germany
Decision Date: March 5, 2021
The Cologne Administrative Court in Germany issued a preliminary injunction, preventing the Federal Office for the Protection of the Constitution of Germany from classifying a right-wing political party as a suspected extremist organization and from making any public statements about that classification. The political party had initially approached the Court when media reports indicated that the Federal Office was intending to classify it as a “suspected case” of extremism. At that stage, the Federal Office undertook to not make any classification public and to not surveil any members of the party, and the courts dismissed the application. After the media reported information leaked from the Federal Office that it had, in fact, made the classification, the political party approached the Administrative Court again. The Court then granted the preliminary injunction on the grounds that the party’s right to equal opportunities for all political parties under article 21(1) of the German Basic Law had been infringed.

Der Dritte Weg v. Facebook Ireland Ltd.
Decision Date: May 22, 2019
The Federal Constitutional Court of Germany issued a preliminary injunction ordering Facebook Ireland Ltd. to restore access to a suspended user account on May 22, 2019. The injunction was sought by a political party shortly before the elections to the European Parliament. The party was blocked by Facebook from using its account on the basis of an article, shared by the party, which Facebook found to be an infringement of its terms of use and a possible infringement of criminal law. After two applications to the civil courts, which were not successful, the applicant alleged a violation of its basic rights before the Federal Constitutional Court. The Court held that it would be essential to the party to have access to its Facebook page to disseminate its political opinions and enter into discussion with its users, until the elections were carried out. Facebook had a key position within the social networks in Germany and therefore played an important role in election campaigns. The Court concluded that the consequences would be worse if the political party were wrongly denied access to its Facebook page during the election period, than if Facebook was temporarily obliged to restore access but subsequently it would be found that restricting access and disabling the profile were lawful.

European Court of Human Rights
Selahattin Demirtaş v. Turkey (no. 2)
Decision Date: December 22, 2020
The Grand Chamber of the European Court of Human Rights (ECtHR) found that the Turkish government’s attempts to curtail the political speech of opposition leader Mr. Demirtaş, violated his rights under Article 10 (freedom of expression), Articles 5(1) and 5(3) (right to liberty and security), Article 18 (limitation on use of restrictions on rights) and Protocol no. 1 Article 3 (right to free elections) of the European Convention on Human Rights (ECHR). Mr. Demirtaş was an elected member of the National Assembly and one of the co-chairs of the pro-Kurdish Peoples’ Democratic Party. Following his active political speeches and statements against the government on the Kurdish-Turkish conflict, he was arrested on suspicion of membership of an armed terrorist organisation and inciting others to commit a criminal offence. The Grand Chamber found a violation of Mr. Demirtaş’s right to freedom of expression on the grounds that the lifting of his parliamentary immunity as a result of a constitutional amendment, his continued pre-trial detention, and the criminal proceedings brought against him due to his political speeches, had not complied with the the quality of law requirement for lack of foreseeability under ECHR. In holding that Mr. Demirtaş’s detention had “pursued the ulterior purpose of stifling pluralism and limiting freedom of political debate, which [were] at the very core of the concept of a democratic society”, the Court ordered the Government of Turkey to take all necessary measures to secure his immediate release. The Court also stated that the continuation of Mr. Demirtaş’s pre-trial detention would amount to elongation of the violations of ECHR, as well as breach of Turkey’s obligation to abide by the Court’s judgment in accordance with Article 46(1) of ECHR.

Dickinson v. Turkey
Decision Date: February 2, 2021
On 2 February 2021, the European Court of Human Rights (ECtHR) unanimously found that the criminal proceedings against an artist’s satirical collage “insulting” the Turkish Prime Minister violated his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). In Dickinson v. Turkey the ECtHR confirmed that a politician must show a greater tolerance towards criticism, especially when the expression takes the form of satire. Most importantly, the ECtHR found that Article 10 was violated, even where the applicant has “only” been criminally prosecuted, without any sanction being imposed. The ECtHR considered that being prosecuted for insult of a political leader, with a risk of being imprisoned, has a chilling effect on the right to freedom of expression.

United States
Campbell v. Reisch
Decision Date: January 27, 2021
The United States Court of Appeal for the Eighth Circuit ruled that a Missouri State Representative had not violated one of her constituent’s First Amendment rights when she blocked him from her Twitter account. The State Representative had blocked the constituent after he retweeted criticism of her position on a matter of public interest. The constituent approached the District Court for the Western District of Missouri, seeking a declaration and an injunction on the grounds that the State Representative was liable for the infringement of his rights because she had been acting “under the color of state law” (that is, that she was acting in an official capacity) when she blocked him. The District Court had held that the State Representative’s Twitter account was an official government account and that she had violated the constituent’s rights. The Court of Appeal overturned the District Court’s decision, holding that the Twitter account was not an official, government account as its focus was on the State Representative’s broad campaign for public office and that she was not, therefore, acting “under the color of state law” when she blocked her constituent. The Court noted that, in fact, the State Representative’s First Amendment rights “to craft her campaign materials necessarily trumps [the constituent’s] desire to convey a message on her Twitter page that she does not wish to convey”.

The Case of Midhat Velagić
Decision Date: December 19, 2018
The Constitutional Court of Bosnia and Herzegovina (BH) found that judgments of lower courts which held the appellant guilty of the crime of “inciting national, racial or religious hatred, discord, or hostility” for a post on Facebook amounted to a violation of his right to freedom of expression. In support of the national soccer team’s eligibility to play in the World Cup, Midhat Velagić had posted a picture depicting the famous Brazilian statue Christ the Redeemer with two dragons flying towards it and the BH flag in the background with the comment “Let’s go, tear it up.” The lower courts found the post publicly mocked the religious symbol and hence provoked religious hatred and intolerance among Roman Catholics living in BH. On appeal the appellant claimed that the lower courts failed to examine the whole context of the case. He argued that the first-instance courts did not explain why his Facebook post of the edited picture of a famous statue could be understood only as an intentional commission of the criminal offense. The Constitutional Court reasoned that there was no evidence that the Facebook post amounted to the incitement of hatred towards Roman Catholics, since the famous statue is not only the Christian symbol, but the symbol of Rio de Janeiro and Brazil as well.

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.

“Where Should Speech be Free? Conceiving Liberal Theories of Free Speech”
Richard Danbury’s chapter in the 2017 volume Speech and Society in Turbulent Times explores the frequent tension between the statutory universality of human rights, in this case free speech on one hand, and the challenges to such assertions on cultural grounds on the other. Danbury further discuses four reasons that free speech theories should be universal.

Guidelines for prosecutors on cases of crimes against journalists
An integral part of the international community’s efforts to end the impunity of those who attack journalists is bringing the perpetrators to justice and holding them accountable for their actions in accordance with the rule of law and human rights. These guidelines prepared by UNESCO and the International Association of Prosecutors identify elements that should be analyzed in the decision-making process when an alleged crime is committed against a journalist and put into perspective the measures that may command the public interest, public order and the safeguard and confidence into the administration of justice.

Post Scriptum

● The Center for International Media Assistance’s latest report, The Untapped Potential of Regional Cooperation for Media Reform in Southern Africa, examines the potential for reigniting regional networks for media reform. Through a consultative research process, Herman Wasserman highlights the challenges media actors face to reestablish and maintain momentum for regional cooperation in Southern Africa. He further describes the benefits of such collaboration to foster a shared sense of purpose, provide solidarity in the face of threats, and articulate an African vision for media reform and development.

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