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.

● UNESCO and the Bonavero Institute of Human Rights of the University of Oxford will soon be launching a global Massive Open Online Course (MOOC) for judicial actors, to promote international and regional standards on freedom of expression and the safety of journalists. This free, five-week online course will run from the weeks of May 10 until June 7, 2021, with the possibility of completing the course until June 30, 2021. The course will be led by experts in the field of human rights and freedom of expression, and will include high-level guest speakers such as UN Special Rapporteurs, judges from regional human rights courts, prosecutors, and human rights lawyers. Register today or more information can be found here.

● A new report “We Need to Talk About Data: Framing the Debate Around the Free Flow of Data and Data Sovereignty” released by the multistakeholder organization, the Internet & Jurisdiction Policy Network (I&JPN), highlights the need for a more nuanced debate on “Data Sovereignty” and “Free Flow of Data”. Through a survey of over 100 respondents, 4 roundtable discussions, and over 30 interviews, I&JPN brought together actors from governments, the private sector, civil society, technical community, international organizations, and academia in an effort to map ways to reconcile apparently conflicting policy approaches.

● The Brennan Center for Justice is hosting a virtual event, “Supreme Injustice: How a Conservative Court Will Reshape America.” Ian Millhiser, a lawyer, senior Vox correspondent, and former law clerk in the federal appellate court system, presents an unflinching view of an increasingly partisan court in his new book, The Agenda: How a Republican Supreme Court Is Reshaping America. In conversation with the New Republic’s Osita Nwanevu, Millhiser will discuss how the Court will shape the very nature of American government, redefining who gets to have legal rights, who is beyond the reach of the law, and who chooses the people who make our laws. Thursday, April 22, 2021 from 12:00 p.m.–12:45 p.m. ET. RSVP

● Kirsten Han, in a blog for the Ballot “How Singapore’s ‘fake news’ law gets exported” discusses her experience with being issued a “correction direction” under the Protection from Online Falsehoods and Manipulation Act. “The law affords government ministers the power to issue orders demanding corrections, content removal, and the blocking of access to social media pages and websites. As of July 2020, the government had issued over 70 directives, mostly concerning content on Facebook.” (see The Online Citizen Pte Ltd v. Attorney-General) Han observes that copycat laws have been proposed in Nigeria and the Philippines among others, providing “illiberal or authoritarian leaders the tools to control freedom of expression and suppress dissent.

Decisions this Week

United States
Nunes v. Cable News Network, Inc.
Decision Date: February 19, 2021
The single judge bench of the US District Court of New York granted the Cable News Network’s motion to dismiss in the complaint filed by US Representative Devin G. Nunes. Nunes alleged that CNN published an article indicating that Lev Parnas, an indicted former associate of Rudy Giuliani, was willing to testify that Nunes had traveled to Vienna and met with former Ukrainian Prosecutor General Victor Shokin to discuss “digging up dirt” on former Vice President Joe Biden. The judge dismissed the complaint on the grounds that Nunes had failed to comply with the California Civil Code by omitting to serve a specific written demand for retraction of the alleged false and defamatory news article on the defendants.

Nunes v. WP Company LLC
Decision Date: December 24, 2020
The single judge bench of the US District Court for the District of Columbia granted Washington Post’s motion of dismissal in the complaint filed by Representative Devin G. Nunes. Nunes had alleged defamation and civil conspiracy by Washington Post in relation to the publication of an article concerning a purported conversation between himself and then-President Donald J. Trump about a classified intelligence briefing. The judge noted that Nunes had failed to establish defamatory implication claims, the actual malice standard and that his assertions were “no more than labels and conclusions”.

ACA Connects v. Frey
Decision Date: July 7, 2020
The U.S. District Court of Maine denied internet service providers’ (ISP) motion for judgment challenging Maine’s broadband privacy law for violation of federal laws and on grounds of First Amendment and pre-emption claims.  The plaintiffs had alleged that the privacy clause conflicted with the federal law and placed unduly burdensome restrictions on their protected speech, apart from being an unconstitutional exercise of state power. In dismissing the application of the ISPs, the Court reasoned that commercial speech regulations such as the Privacy Statute were subjected to a lesser degree of First Amendment protection, as against the strict scrutiny criteria proposed by the plaintiffs. Since there was no satisfying material on record to prove that the Privacy Statute burdened ISPs’ protected speech by restricting how they used information obtained from consumers, or that the legislation was preempted by federal laws, the Court dismissed the plaintiffs’ case on all counts and granted the defendant’s cross motion for judgment on pleadings.

Uganda
Editors Guild Uganda Ltd. v. Attorney General
Decision Date: January 18, 2021
The Civil Division of the High Court of Uganda at Kampala held, inter alia, that directives requiring the registration and accreditation of journalists by the Media Council of Uganda were illegal, irrational, and procedurally irregular. The directives were issued by the Media Council as a prerequisite to covering the 2021 general elections in Uganda. The applicants were the Editors Guild Uganda and the Centre for Public Interest Law – groups representing journalism and press freedom and independence – which sought orders of certiorari to defeat the directives. Honorable Justice Esta Nambayo accepted the case for judicial review and specifically found that efforts to register and accredit journalists were outside the scope of the Media Council’s powers under the Press and Journalist Act. The Court did not decide on arguments that freedom of expression was violated as that basis was not appropriate to address under judicial review.

India
Kunal Bahl v. State of Karnataka (Snapdeal case)
Decision Date: January 7, 2021
The High Court of Karnataka, by order dated January 7, 2021, quashed criminal proceedings against the directors of Snapdeal Private Limited (Snapdeal), a company operating an e-commerce marketplace “Snapdeal.com” in India. The criminal proceedings, which were initiated after a delay of six years, related to the unauthorised sale of medicines online. The High Court quashed the proceedings on the ground that Snapdeal was an “intermediary” under s. 2 (1)(w) of the Information Technology Act 2000 (IT Act) and in view of the safe-harbor for intermediaries under s. 79 of the IT Act, was not liable for such unauthorized sale on its platform by a third-party seller.

Sekaram v. State of Tamil Nadu
Decision Date: January 10, 2020
The High Court of Madras observed that there were many bogus journalists who claimed to be genuine members of the press by registering their magazines/newspapers with the authorities, publishing only a handful of copies and then using their press credentials for criminal activities such as blackmail.  This observation was triggered by public interest litigation (PIL) brought by Mr. S. Sekaram who claimed to have been the editor of a Tamil fortnightly magazine for the last ten years as well as being a freelance journalist. He was seeking a police inquiry into inflated investigation figures allegedly submitted by the Inspector General of Police. In the course of its reasoning the Court suggested the presence of some mechanism to identify and check the bogus journalists, impose certain parameters such as a minimum circulation for magazines and newspapers and verify the credentials of the parties in detail before issuing press identity cards.

Germany
The Case of Mr. K
Decision Date: July 7, 2020
The Federal Constitutional Court of Germany held that a criminal conviction for incitement was a constitutionally-permissible limitation on the accused’s right to freedom of expression. A right-wing politician had been convicted of inciting hatred under the German Criminal Code after publishing derogatory statements with explicit and implicit expressions of Nazi propaganda, terms and rhetoric linked to the Jewish population on the party’s website. He unsuccessfully appealed his conviction to the Regional and Higher Regional Courts before approaching the Federal Constitutional Court, where he argued that the convictions infringed his right to freedom of expression under article 5 of the German Basic Law. The Court referred to the history of Nazism in Germany and its disenfranchisement and systematic murder of the Jewish population, and held that the lower courts had correctly assessed the effect and meaning of the statements and that any limitation of the right to freedom of expression was constitutionally justified.

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.

“Protest and Human Rights”
In this report, Edison Lanza, Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, discusses how social protest is recognized and protected as intrinsic to the existence and consolidation of democracies by the inter-American system of human rights. Despite such recognition, the region continues to repress and limit the exercise of these rights in the public sphere, due to the notion of citizen mobilization being disruptive for public order or a threat to the stability of democratic institutions. The objective of this report, therefore, is to “contribute to a better understanding of State obligations aimed at guaranteeing, protecting, and facilitating public protests and demonstrations, as well as the standards that should frame the progressive use of force—and as a last resort—in protest contexts”.

“Increasing International Legal Protections for Freedom of Expression”
In an article for Notre Dame Journal of International & Comparative Law, Alan Wehbé states that there is a duality between the legal recognition and practice of promoting freedom of expression globally. In particular, at times when such freedom is most vital to the generation of the “consent of the governed”, International Law appears to allow for censorship. In this article, Wehbé makes the case for increasing international legal protections for freedom of expression with the objective of encouraging and fostering the growth of free governments

Post Scriptum

● In case you missed it, the webinar “Saving Journalism: What Can We Learn From Other Countries?”, sponsored by the Technology, Media, and Communication Specialization at the Columbia University School of International and Public Affairs, is now posted on YouTube.  Speakers Steve Waldman, Julia Cagé, and Edward Greenspon joined Taylor Owen and Anya Schiffrin to discuss trends around the world to support media outlets, ranging from tax subsidies to philanthropic support by non-profits and new laws addressing inequality in bargaining power between news content producers and digital platforms.

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