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.

● Call for Papers: Hate Speech vs. Free Speech. Columbia Global Freedom of Expression partner Future of Free Speech will be the guest editor of a 2022 edition of the International Journal for the Semiotics of Law and are looking for contributions on, but not limited to: Specific aspects of Free Speech and Hate Speech on social media platforms; Making meaning in Law and meaning-making in Linguistics; Linguistic analysis of criteria used in judgments on cases of Hate Speech and/or Free Speech; Critical analysis of policy documents on Hate Speech and Free Speech. Abstract submission deadline is May 15, 2021.

● Join the Electronic Frontier Foundation (EFF) for a candid live discussion with NSA whistleblower Edward Snowden, EFF Executive Director Cindy Cohn, EFF Director of Engineering for Certbot Alexis Hancock, and EFF Policy Analyst Matthew Guariglia as they weigh in on surveillance in modern culture, activism, and the future of privacy. Wednesday, May 5, 12 -1pm PT. RSVP

● Advancing Justice with Digital Evidence: The Berkeley Protocol. The Committee on Human Rights of the U.S. National Academies of Sciences, Engineering, and Medicine is hosting a panel to discuss a protocol that sets standards for the use of online content to assist investigations of human rights violations. Panelists include John Scott-Railton (Moderator), Senior Researcher, The Citizen Lab, Munk School of Global Affairs and Public Policy, University of Toronto; Alexa Koenig, Executive Director, Human Rights Center, University of California, Berkeley School of Law; Lindsay Freeman, Director of Law and Policy, Tech and Human Rights Program, Human Rights Center, University of California, Berkeley School of Law;  Enrique Piracés, Manager of the Media and Human Rights Program, Center for Human Rights Science at Carnegie Mellon University. Wednesday, May 5, 1-2:15 pm EDT. RSVP

● Book Talk: How Rights Went Wrong. In his new book, How Rights Went Wrong, the renowned constitutional scholar Jamal Greene argues that the U.S. legal system’s absolutist approach to rights distorts our law, debases our politics, and exacerbates our differences rather than helping to bridge them. The Knight Institute’s Katy Glenn Bass will talk to Prof. Greene—a former Knight Institute Senior Visiting Research Scholar—about his ideas for reconceptualizing the relationship between constitutional rights and justice, and how we can recover America’s original vision of rights while updating them to confront the challenges of the 21st century. Thursday, May 6, 12:30  – 1:30pm EDT. RSVP

● The McGannon Center at Fordham University is hosting a panel with Phil Napoli of the Sanford School of Public Policy at Duke University to discuss his recent writing, including his prescient book Social Media and the Public Interest: Media Regulation in the Disinformation Age. Panelists include Professors John Carey and Bozena Mierzejewska of the Gabelli School of Business at Fordham, and  McGannon Center Director Olivier Sylvain will moderate. Friday, May 7, 2 – 3pm EDT. RSVP

Decisions this Week

United Kingdom
COS v. PER and PHO
Decision Date: March 3, 2021
The High Court of Justice, Queen’s Bench Division granted an interim non-disclosure order in favour of the claimant who had filed an application to restrain the defendants from publishing any information private or otherwise detrimental to her privacy and to take down a video already uploaded on the internet. The second defendant had disclosed information on the sexual relationship between the claimant and the first defendant, and was threatening to reveal more intimate details.The Court initially conducted the hearing in private without giving notice to the defendants to minimise the risk of publication of the private information but later provided a judgment in open Court elaborating on the reasoning for its findings. The Court granted the injunction as requested on the basis that the claimant was successful in establishing that she had a reasonable expectation of privacy, that there was a probability of her succeeding in the trial, and that there was no public interest involved in the material which was the subject of the application.

Attorney General of Malaysia v. Mkini Dotcom Sdn Bhd
Decision Date: February 19, 2021
The Federal Court of Malaysia held that an online news website which had published comments by its subscribers which criticized the judiciary was guilty of contempt of court. The website had republished a press release issued by the Chief Justice and subscribers had added critical comments to that post. Even though the website removed the comments within twelve minutes of the police informing the website of the comments, the Attorney General charged the website and its editor with contempt of court. The Court held that the website was liable for comments made on its website as it was deemed to be a publisher and its editorial structure demonstrated that it should have had knowledge of the comments.

European Court of Human Rights
Gawlik v. Liechtenstein
Decision Date: February 16, 2021
The European Court of Human Rights (ECtHR) found that the dismissal without notice of a doctor who disclosed unverified suspicions of euthanasia to external bodies did not violate Article 10 of the European Convention on Human Rights (ECHR). The applicant, a doctor at the Liechtenstein National Hospital, discovered patient files that seemingly indicated that his superior had practised active euthanasia. He lodged a criminal complaint on these suspicions. Reports by the hospital board and external experts concluded that the applicant’s suspicions were unfounded, and he had failed to verify his suspicions with further documentation available. Thereafter, the applicant was dismissed without notice from the hospital. He launched proceedings against this decision, but his case was ultimately quashed by the Constitutional Court. The ECtHR agreed that such an interference did not violate the applicant’s freedom of expression under Article 10 of ECHR. Using a six-factor balancing test, the Court concluded that, while the applicant did not act with improper motives, he did not carefully verify the veracity of the disclosed information. Based on the prejudicial effect the disclosure had on the reputation of the hospital and the accused physician, the domestic courts had fairly balanced such rights against the applicant’s right to freedom of expression and the interference was considered proportionate.

United States
Decision Date: January 8, 2021
The US Court of Appeals for the District of Columbia Circuit remanded a case back to the lower court to determine whether a document related to the investigation into Russian involvement in the 2016 US presidential election should be released to a media house. The media house had filed a freedom of information request for access to memos written by the former director of the Federal Bureau of Investigations which was refused on the grounds that the documents would interfere with ongoing law enforcement proceedings. During the motion for summary judgment proceedings, the court of first instance ordered that the unredacted version of the document be disclosed to the media and the public. The Court of Appeals held that the lower court had incorrectly applied the factors to be considered in determining whether disclosure should be ordered, and so remanded the matter back for reconsideration.

The Gambia
Gambia Press Union v. Attorney General
Decision Date: May 9, 2018
The Supreme Court of The Gambia held that the provisions in the Criminal Code relating to sedition (excluding seditious acts against the government) and publication of false news or information were constitutional. A media organization had challenged the constitutionality of these provisions arguing they violated the constitutionally-protected right to freedom of speech and expression including freedom of the press. The Court recognized that criticism of the government as an institution should not constitute sedition, but held that all other definitions of “seditious intention” and the offence of false news in the Criminal Code were a necessary, reasonable and proportional limitation of the right to freedom of expression. The Court placed specific importance on the need to protect the unity of the country and the fact that the exercise of constitutional rights can never be at the expense of the achievement of other, competing rights.

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.

Freedom of Speech and Expression (Lecture by Prof. David Kaye)
This lecture is the sixth to be delivered in a series of lectures which are part of the Oxford Kashmir Forum’s online course on “International Human Rights Law and Kashmir: Prospects and Challenges”. In this lecture, Prof. David Kaye discusses the ways in which the fundamental right to freedom of speech and expression is guaranteed under International Human Rights Law as well as the obligations it imposes on States. In particular, Prof. Kaye emphasizes on the role such laws play in our online lives as well as discusses the nature of the function of the actors who animate the space of internet governance. Recognizing issues of speech and expression as some of the most direct as well as salient issues of law and public policy globally, he provokes his listener to think more deeply about what those issues are as well as who should determine answers to those issues in a democratic world.

But Facebook’s Not a Country: How to Interpret Human Rights Law for Social Media Companies
In this article, Susan Benesch observes that “[p]rivate social media companies regulate much more speech than any government does, and their platforms are being used to bring about serious harm. Yet companies govern largely on their own, and in secret. To correct this, advocates have proposed that companies follow international human-rights law. That law–by far the world’s best-known rules for governing speech–could improve regulation itself, and would also allow for better transparency and oversight on behalf of billions of people who use social media.” Her paper argues that “for this to work, the law must first be interpreted to clarify how (and whether) each of its provisions are suited to this new purpose.”

Post Scriptum

● How can America counter group mentality? Clint Watts, a national security, counterterrorism, and cybersecurity expert, joins this episode of Vital Interests Podcast to discuss disinformation, conspiracy theories, and domestic terrorism.

● In case you missed it,  the full video recording of the event Supreme Injustice: How a Conservative Court Will Reshape America with Ian Millhiser and Osita Nwanevu is now available. Ian Millhiser’s book, The Agenda: How a Republican Supreme Court Is Reshaping America, is available here.

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