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, ACLU, the Media Freedom and Information Access Clinic at Yale Law School, and former Solicitor General Theodore B. Olson petitioned the U.S. Supreme Court to review whether the public has a right to access the decisions of the Foreign Intelligence Surveillance Court (FISC) that rules on the legality of government surveillance. The petition argues that disclosure of the FISC’s opinions would ensure a more informed public debate about the reach of government surveillance, increase the perceived legitimacy of the FISC, and allow other courts to engage with the FISC’s rulings. The Court is awaiting comments from the Justice Department by late May before determining whether to hear the case.

● PEN America has released their Freedom to Write Index which provides a count of the writers and public intellectuals imprisoned around the world during the previous calendar year. Since its launch last year, the Freedom to Write Index has helped to inform the greater public about threats to writers around the world, telling the stories of individuals who have been silenced and detained for their words, and shining a light on the countries that present the gravest threats to writers and public intellectuals.

● A group of prominent Iranian musicians and artists from diverse perspectives called HOMANITY are releasing a compilation aimed at spreading awareness about the censorship and persecution of artists in Iran. It will be released on May 7 by Crowdsourcing Human Rights, a nonprofit, nonpartisan organization. Rolling Stone featured an article about it and the YouTube video Singing Without Fear: Celebrating the Silenced Women of Iranian Music features three of the female artists.

Decisions this Week

European Court of Human Rights
Benitez Moriana and Iñigo Fernandez v. Spain
Decision Date: March 9, 2021
The European Court of Human Rights (ECtHR) found that the criminal conviction of two applicants on grounds of “serious public insult” for publishing criticism of a judge’s ruling in a newspaper was a violation of their right to freedom of expression. The applicants had criticized the judge’s ruling in a lawsuit between a company seeking an environmental license and the municipal council which had voided proceedings for the license. Their criticism, which appeared in the newspaper as a letter to the editor, alleged that the judge lacked competence, knowledge, interest, and impartiality. On this basis, the prosecutor instituted criminal proceedings against the applicants, and they were found guilty of serious public insult. Their conviction was upheld on appeal, and the constitutional court also dismissed their amparo appeal for a violation of their right to freedom of expression. The ECtHR found that these interferences in the Article 10 rights of the applicants were not necessary in a democratic society when balancing freedom of expression against the “protection of the reputation or rights of others”. The Court reasoned that the state’s margin of appreciation was limited by the public interest involved in the content of the letter. Thus, while it was necessary to protect judges from personal attacks in order to safeguard the functioning of the judiciary, this could not be a bar to the expression of opinions on matters of public interest. Furthermore, since the value judgments of the applicants in the letter had a sufficient factual basis, they were protected speech. Finally, the criminal penalties were disproportionate because of their nature and severity, and their inevitable chilling effect on free speech.

India
The Case of Disha A. Ravi
Decision Date: February 23, 2021
The Patiala House Court, a lower court in the Indian capital of New Delhi, in an interim decision, granted bail to the applicant who had been involved in the creation and sharing of “Toolkit” documents on social media. The digital Toolkit contained documents in relation to nationwide protests against the newly introduced Farmers Bills and the applicant was arrested for the offences of sedition and criminal conspiracy for her part in the circulation of the Toolkit. While allowing the applicant’s bail application because of the lack of any strong reason or evidence that would result in the contrary, the Court made pertinent observations on the applicability of the law of sedition. In so doing the Court upheld a citizen’s right to dissent and protest, which are protected under the fundamental right to free speech. It further stated that dissent and divergence of opinion was a sign of a healthy democracy. The Court also held that the right to seek a global audience without any geographical barriers on communication was a part of freedom of speech and expression.

Egypt
The Case of the Egyptian TikTok Influencers
Decision Date: January 12, 2021
The Court of Appeals in Egypt – hearing the appeal of two women convicted and sentenced to imprisonment for violating “family principles and values upheld by Egyptian society” by posting “indecent” videos and images – acquitted one of the women and confirmed the conviction of the other but reduced her sentence to only a fine. The woman who had been arrested after posting videos on the social media platform, TikTok, encouraging other women to join a mobile application to meet, chat to and build relationships with men in exchange for money was acquitted on the grounds that there was no intention to incite other women to commit debauchery. The Court held that the other woman who had been arrested for posting “indecent” photos and videos of her unclothed and dancing had been guilty of violating the values and principles of Egyptian society. This case was the first time these offences in the 2018 Cybercrime Act had been used since the law’s adoption

Mansour v. Al-Youm Al-Sabea Website
Decision Date: February 15, 2014
The Court of Administrative Judiciary in Egypt’s Chamber of Economical and Investment Disputes (7th Chamber) issued a ruling rejecting the plaintiff’s demand to overturn the decision to not withdraw the license granted to Al-Youm Al-Sabea Website (موقع اليوم السابع). The plaintiff had sought the cancellation of the website’s license and the cutting off of its connection after the website published defamatory statements about him. The decision noted that although what had been published on the website against the plaintiff constitutes a crime of insult and defamation, withdrawing the license of the website or shutting it down would clearly contradict article 71 of the Constitution which prohibits any censorship or suspension of Egyptian media, and that censorship is not an appropriate measure to address defamation in the media.

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.

Journalism, Press Freedom and COVID-19
This issue brief on “Journalism, Press Freedom and COVID-19” is part of the UNESCO series “World Trends in Freedom of Expression and Media Development.” It highlights the key global trends in the implications of the COVID-19 pandemic on the freedom of the press and journalism. These trends include: 1) a dangerous “disinfodemic”; 2) a soaring demand for verified information; 3) a need for increased transparency; 4) regulatory measures which have led to new restrictions on human rights, 5) journalists putting their own safety at risk to inform the public; 6) an existential threat to journalism due to the economic impact of COVID-19; and 7) new opportunities to stand up for journalism amid the crisis. The objective of the issue brief is for it to serve as referential guidance for UNESCO member States, civil society organizations, media outfits, and internet companies.

Freedom of Speech and Insult in the High Court of Australia
Authors Adrienne Stone and Simon Evans argue the Australian Constitution lacks a comprehensive statement of rights. The few rights which have been judicially recognized by the High Court of Australia have typically been narrowly interpreted. One such right is the freedom of political communication, which is a restricted/limited kind of free speech right. Though the early 1990s witnessed several decisions in which the freedom of speech was protected in fairly expansive ways, the doctrine was revised in 1997 due to growing doubts about its “more adventurous applications” within the Court. In this article, Stone and Evans discuss the landmark rulings in Lange v. Australian Broadcasting Corporation and Coleman v. Power, and how the decision in Coleman affirms the survival of the freedom of political communication as well as clarifies several aspects of the doctrine.

Post Scriptum

● Article 19 has released a new policy brief which “seeks to contribute to discussions surrounding the development and deployment of biometric technologies and their impact on freedom of expression and human rights”. The brief notes that “[d]ue to the increased availability of large datasets, as well as lower costs and improved machine learning, the development and deployment of biometric technologies has rapidly increased”. In this brief, Article 19 calls for a moratorium on biometric technology development “until vital human rights safeguards are in place”

● The Hill reports that a coalition of nearly 70 immigrant rights, civil liberties and privacy groups sent
a letter sent to the U.S. Department of Homeland Security (DHS) to “immediately stop” using facial recognition technology provided by Clearview AI over concerns that  it is being used “to locate, arrest, and even deport individuals using data that they did not consent to share.” The letter argues that the information being used by law enforcement draws from “a database of more than 3 billion biometric identifiers that the company has extracted from images scraped without permission from sites including Facebook, Instagram, and LinkedIn.”

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