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 partnership with UNESCO, Columbia University’s Global Freedom of Expression initiative published an online collection of case law related to COVID-19 from across the world, in English, French and Spanish. These decisions highlight the essential role of judicial actors in upholding the rule of law and human rights, especially in exceptional states of emergency.

● In “How (Not) to Write a Privacy Law,” Julie Cohen assesses areas where there is emerging consensus in proposed privacy legislation before the US Congress. Part I of her essay looks at the consensus surrounding the definition and assertion of individual information privacy rights, Part II looks at the question of public governance and Part III evaluates proposals for enforcement of newly recognized rights and obligations. This article is part of the Knight Institute and Law and Political Economy Project essay series considering how big data is changing our system of self-government

● Daphne Keller discusses the complexities surrounding current policy debates over transparency and platform content moderation in “Some Humility about Transparency.” As lawmakers in the US, Europe, and beyond are negotiating what should be mandatory practices, she advises stakeholders to carefully weigh the costs and benefits and prioritize what is essential as the consequences will be “huge.” She closes with six “tentative” recommendations for consideration.

● Article 19 co-hosted a side event at the 65th Session of the Commission on the Status of Women titled “Tackling Online Harassment and Abuse Against Women Journalists,” in cooperation with OSCE, UNESCO, and the Permanent Missions of Austria, Botswana, Canada, Costa Rica, and the United Kingdom to the United Nations in New York. Panelists discussed how States should investigate instances of online harassment, what measures States are currently taking to tackle online gender-based harassment, and what are the gaps in existing international standards on the human rights of women journalists? Watch the video.

Decisions this Week

Canadian Constitution Foundation v. Attorney General of Canada
Decision Date: February 21, 2021 
The Ontario Superior Court of Justice declared section 91 of the Canada Elections Act, 2000 invalid. This provision prohibited the publication of false news, such as the association of a prospective candidate with an offence, during the election period. The provision carried significant penalties, including a fine up to $50,000 and up to five years in prison. The Canadian Constitution Foundation contended that this provision violated section 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of expression since the provision prohibited dissemination of accidental and unknown falsehoods and applied to an overly broad category of people and topics. The judge accepted this contention and struck down the provision while observing that the provision did not lay down the requirement of knowledge of falsity i.e. a person could be charged under this provision regardless of him knowing that the statement s/he made was false.

Italian Data Protection Authority v. TikTok
Decision Date: February 11, 2021
The Italian Data Protection Supervisory Authority issued two interim measures restricting the ability of social media platform, TikTok, from processing the data of users, residing in Italy, whose age could not be determined with certainty. The measures were issued following the death of a child who took her own life by accident while allegedly trying to take part in the “Blackout challenge” on TikTok. European and Italian law provides specific protection to children regarding the processing of their personal data, and TikTok’s policy and implementation of that policy were in violation of those rules.

Constitutionality of Bill of Law No. 11.424-17
Decision Direction: November 19, 2020
The Constitutional Court of Chile declared the unconstitutionality of the sole article of a bill that codified the crime of incitement to violence contained in Bulletin No. 11.424-17. A group of parliamentarians requested that the bill be declared unconstitutional on the grounds that the incorporation of the crime of negationism (or denialism) in the text was against the Constitution, mainly articles 19 and 69. Negationism is conduct associated with the exaltation, justification, denial, or minimization of certain types of human rights abuses. The Court found that the bill was unconstitutional inasmuch as it infringed upon the freedom to express an opinion without prior censorship, it wasn’t approved with the qualified quorum that was required and the incorporation of the crime of negationism did not relate to the main ideas of the original draft law, as required by the Constitution.

United States
Karen McDougal v. Fox News Network, LLC
Decision Date: September 23, 2020
The United States District Court for the Southern District of New York dismissed the Plaintiff’s action of slander against the Defendant as the impugned statements were mere rhetorical hyperbole and the Petitioner failed to prove actual malice. The Plaintiff claimed that she was defamed in the “Tucker Carlson Tonight” show when Mr. Carlson accused her of extorting $150,000 in exchange for her silence about her alleged affair with the former President, Donald Trump. The Court reasoned that Mr. Carlson’s statements were based on the potential for an impeachment inquiry against Mr. Trump due to campaign finance violations and the discussion of payments to the Plaintiff in the process, thus “the statements were matters of public concern”. Further, court precedents showed that accusations of extortion related to political issues are construed as non-actionable.

Herring Networks v. Maddow
Decision Date: May 22, 2020
A District Court granted MSNBC’s Rachel Maddow’s motion to strike in furtherance of a defamation claim against her by Herring Networks, owner of One America News Network (OAN), for comments on the broadcast of The Rachel Maddow Show. The segment of the show, which began with a three and a half minute exposé about One America News Network (OAN) where Maddow told her audience that OAN “really literally is paid Russian propaganda”, was challenged on grounds of defamation. The segment was based on an article published in July 2019 on The Daily Beast and referred to OAN’s on-air reporter Kristian Rouz who, after moving to US from Ukraine in 2014, had started working for Sputnik, a Russian state-financed propaganda organization. The Court found the comments made by Ms. Maddow were “fully protected opinion” made in furtherance of her constitutional right to exercise free speech concerning a public issue. It also recognized that the First Amendment and California law both forbade defamation claims which attacked statements of opinion based on disclosed facts. Since there was no set of facts that could support a claim for defamation based on Maddow’s statement, the Court found the contested statement could not serve as the basis for a defamation claim. Herring Networks’ complaint was dismissed with prejudice.

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.

“Free Speech is a Triangle”
In this essay for the Columbia Law Review, Jack M. Balkin argues that the conception of free speech which characterized the 20th century is inadequate to protect free speech and expression in the 21st century due to the transition from a dualistic model of speech regulation with two players to a pluralist model of speech regulation with multiple players. In this essay, he frames free speech as operationalizing as a triangle, with States and the European Union at one end, internet-infrastructure companies at another, and different kinds of speakers at the third end. He proposes a series of reforms which could be implemented by governments to address this free speech triangle.

Video: Media Law Free Expression
This interview, conducted by Mark Pearson with Dirk Voorhoof, provides insights into the manner in which freedom of expression operates internationally as well as regionally. Pearson and Voorhoof discuss the different levels of and multiple approaches to free expression and their breaches by training on them a comparative lens. Voorhoof’s responses focus on the jurisprudence of the ECtHR, in particular, to highlight the limitative nature of the cases in which the freedom of expression can be restricted, arguing that such jurisprudence urges States to upgrade their freedom of expression, particularly for the media and journalists. They also delve into the explicit recognition of the right to information and its pivotal nature as a tool in democracies, which enables actors such as the media and CSOs to fulfil their duties as public watchdogs.

Post Scriptum

● In case you missed it, the Brennan Center for Justice and PEN America hosted an online event, Disinformation vs. Democracy: Soros and the Fight for Open Societies, with Mark Malloch-Brown, Andre Banks, Arisha Hatch, Jesse Dylan, Suzanne Nossel, and Michael Waldman. Panelists discussed the new documentary Soros from filmmaker Jesse Dylan which shows “how his opponents—from Glenn Beck to the Proud Boys—have leveraged racist, anti-Semitic tropes to smear not just Soros but those who’ve benefitted from his support for open societies globally.” The full video recording of the event is now available and the documentary is available for rent on Vimeo.

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