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.

● The Knight First Amendment Institute is hosting “Reimagine the Internet,” a virtual conference exploring what the internet could become over the next decade. The co-host is the soon-to-be-launched Institute for Digital Public Infrastructure at the University of Massachusetts, Amherst. In six sessions over five days, there will be more than a dozen speakers whose work hints at how the internet may evolve. The conference will be held online Monday 5/10/2021 – Friday 5/14/2021. RSVP

●  UN human rights experts, including Irene Khan (SR for Freedom of Opinion and Expression) and Clément Nyaletsossi Voule (SR on the rights to freedom of peaceful assembly and of association), called on the Government of Uganda to immediately stop the brutal crackdown on its political opponents which began in the lead-up to January’s disputed general elections and continues to suppress opposition supporters. They urged the authorities to immediately and thoroughly investigate and prosecute all human rights violations, including allegations of extrajudicial killings, arbitrary arrest and detention, enforced disappearance, torture and ill treatment, deprivation of due process of law and assault on freedom of expression and peaceful assembly.

● The Future of Free Speech project is hosting its next #FAWPublicForum “It’s a Matter of (Public) Opinion,” where they will discuss controversies that highlight conflicting cultural attitudes about the bounds of free speech. Special guests include Sarah McLaughlin, a writer and free speech advocate who currently serves as the Director of Foundation for Individual Rights’ (FIRE) Education Targeted Advocacy program, and Danish lawyer and human-rights activist, Jacob Mchangama, the founder and executive director of Justitia, a Danish think tank that promotes policies in favor of free expression. April 21st at 12:00pm EST. Read more and register here.

Decisions this Week

Akbar v. Ramani
Decision Date: February 17, 2021
The Assistant Chief Metropolitan Magistrate, Rouse Avenue District Courts, New Delhi dismissed the complaint of criminal defamation against Priya Ramani, a noted female journalist. The complainant MJ Akbar – another journalist and politician – had accused the journalist of tarnishing his reputation by publishing false testimonies of sexual harassment in the wake of the #MeToo movement. The Court stated that victims of sexual harassment “cannot be punished for raising their voices against abuse on the pretext of a criminal complaint of defamation, as the right to reputation cannot be protected at the cost of the right of life and dignity of woman as guaranteed in the Indian Constitution”, and acquitted the journalist.

Devgan v. Union of India
Decision Date: December 7, 2020
The two-judge bench of the Supreme Court of India refused to grant relief in a writ petition to dismiss criminal proceedings against a television journalist, Amish Devgan, who had used derogatory language against a revered Muslim saint. The Court conducted a thorough analysis of the Indian legal framework on hate speech as well as providing an overview of comparative jurisprudence on the issue. Throughout the judgment the Court emphasized the importance of protecting free speech while also protecting group dignity and the unity of the nation by proscribing speech which threatens that dignity and unity. In this preliminary ruling, the Court refused to quash any of the seven first information reports against Devgan but agreed they could be combined and heard together. Devgan was granted interim protection against arrest on the ground that he cooperate with the ongoing investigation into the perceived threats.

United Kingdom
The Duchess of Sussex v. Associated Press Limited
Decision Date: February 11, 2021
The High Court of Justice, Chancery Division, granted summary judgment against the defendant in relation to the misuse of private information for publishing a letter sent by the claimant to her father. The claimant, who is a well-known actress and the Duchess of Sussex, sent a letter at issue to her father three months after her wedding. The existence of the letter first became public in an article published by People magazine. Believing that his image on the basis of the letter had been misrepresented, the claimant’s father provided a copy of the letter to the defendant. The defendant published large sections of the letter in articles published in the Mail on Sunday and MailOnline. Based on the reasonable expectation of privacy, the claimant argued that her private information had been misused. The defendant refuted the claims arguing that the reasonable expectation of privacy had been diluted on the basis of various stated grounds. The Court rejected the defendant’s arguments noting that the claimant had a reasonable expectation that the contents of the letter would remain private and that the disclosures in the articles were “manifestly excessive and hence unlawful.” The Court subsequently ordered the the Mail on Sunday to print a front-page statement saying the claimant had won the case and print further notice about the outcome in its inside pages. The Mail Online was also ordered to publish notice of the claimant’s victory for a week.

USA v. Assange
Decision Date: January 4, 2021
London’s Westminster Magistrates’ Court ruled that Julian Assange’s extradition to the United States (US) was oppressive for health reasons, but approved the extradition based on allegations that Mr. Assange had disclosed classified information. The founder of WikiLeaks had been remanded into custody in the United Kingdom (UK). The US had submitted an extradition request to the UK for Mr Assange, citing a superseding indictment that charged him with eighteen counts of obtaining, receiving, and disclosing classified information. The defense made numerous arguments against the extradition request under the Extradition Act (EA) 2003, including that the allegations in the request were not unlawful under English law and that the extradition breached Article 10 of the European Convention on Human Rights. District Judge Vanessa Baraitser rejected these particular defenses. The Court outlined that, under English law, Mr Assange was complicit in unlawfully taking information and his disclosure of the information fell outside the sphere of responsible journalism. Likewise, the extradition did not constitute a flagrant denial of Mr Assange’s rights and was compliant with Article 10. The Court ultimately ruled against the extradition due to Mr Assange’s health and high risk of committing suicide in US custody.

United States
Philadelphia Bail Fund v. Arraignment Court Magistrate Judges
Decision Date: September 29, 2020
The United States Court of Appeals for the Third Circuit reversed the decision of the District Court and denied Philadelphia Bail Fund and Merry Reed the right to access verbatim records of the bail hearings in the Philadelphia Municipal Court. The case concerns the Supreme Court of Pennsylvania’s state-wide rules and the Philadelphia Municipal Court’s local rules that prohibit attendees of criminal court proceedings from electronically recording them. Philadelphia Bail Fund challenged the rules as violating its First Amendment rights, claiming that the rules prevented it from making audio recordings of preliminary arraignments in the Municipal Court. While the lower court ruled that Philadelphia District Court must either create or release verbatim recordings or allow Bail Fund to make its own recordings (thereby extending First Amendment right to access to include such recordings), the Appellate Court held that doing so violates judicial precedents and amounts to making the law. In arriving at its decision, the majority noted that the Bail Fund’s First Amendment right of access was not meaningfully interfered with in the absence of verbatim records. The case is pending appeal for an en banc rehearing before the Appellate Court.

Fairfax v. CBS Corporation
Decision Date: February 11, 2020
A District Court in Virginia dismissed a defamation suit brought by Lt. Governor Justin Fairfax against CBS Broadcasting Inc. On April 1 and 2, 2019, CBS’s morning news program This Morning, broadcast to a national audience interviews of two women who accused Fairfax of separate sexual assaults, one in 2000 and the other in 2004. The interviews were broadcast immediately after the calls for the resignation of the Governor of Virginia, Ralph Northam, when media outlets began to report about a photograph on Governor Ralph Northam’s medical school yearbook page that showed a white man in blackface makeup and another person dressed as a Ku Klux Klansman. Fairfax alleged two causes of action against CBS, namely of defaming his reputation and damaging his chances of successfully becoming a governor, and of intentional infliction of emotional distress by falsely portraying him as a “rapist, sexual abuser and a predator” in their interviews. The District Court granted CBS’s motion to dismiss the suit, weighing the facts and inferring that CBS’s statements were not defamatory and that the defendant acted without actual malice. The complaint is currently pending appeal before the United States Court of Appeals for the Fourth Circuit.

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.

Introduction to Human Rights: Freedom of Expression
This introductory lesson on Freedom of Expression, delivered by Prof. Tomás Vial, is Lecture 9 of the free online course on International Human Rights Law offered by MOOC Chile. In this lesson, Prof. Vial explores answers to primarily two questions: 1) what is the freedom of expression? and 2) why is it an important right? Identifying freedom of expression as an essential right in a democratic society, Prof. Vial elaborates on the following in this lesson: 1) sources of freedom of speech in International Human Rights Law, 2) the types of discourses which are protected and those which are not, 3) the main justifications for the protection of free expression, and, 4) the main restrictions to which the freedom of expression may be subjected.

Freedom of Expression and Elections in the Digital Age
This 2019 research paper by the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression examines the international standards and principles applicable to the protection of freedom of opinion and expression during elections in the digital age. In the 2014 report to the Human Rights Council, the previous mandate holder examined the State’s obligations to respect and ensure freedom of expression in electoral contexts. This report reviews the nature and scope of these obligations in light of advances in technology and their impact on elections. Advances in information and communications technology have been critical to facilitating access to information and the free flow of ideas during elections. However, State and non-State actors have also exploited these advances to interfere with democratic participation and access to information during election periods, and to undermine the integrity of electoral processes. This report focuses on four such interferences: network shutdowns; efforts to combat the perceived spread of “fake news” and online disinformation; Direct Denial of Service (“DDoS”) attacks; and interference with voters’ records and data.

Post Scriptum

A reminder about these upcoming events:

  • 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.
  • 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.

● In case you missed it, the full video recording of the Brennan Center’s recent event “Democracy in an Age of Mistrust: A Conversation with Ethan Zuckerman and Omar Wasow” is now available. Ethan Zuckerman’s new book, Mistrust: Why Losing Faith in Institutions Provides the Tools to Transform Them, explores how Americans can use their skepticism to resurrect, reform, or outright replace the institutions that no longer serve them

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