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.
● One last reminder that on Monday May 10, 2021, UNESCO will launch its global MOOC on international standards on freedom of expression for judicial actors, developed in partnership with the Bonavero Institute of Human Rights of the University of Oxford. This free five-week online programme will be offered to a wide audience of judges, prosecutors and lawyers as well as other actors worldwide. The course consists of 5 modules with many notable guest speakers including Judge Stella I. Anukam (African Court of Human and Peoples’ Rights, Nigeria); Catalina Botero Marino (Universidad de Los Andes, Facebook Oversight Board); Nani Jansen Reventlow (Digital Freedom Fund); Baroness Helena Kennedy QC (UK House of Lords, Doughty Street Chambers); Irene Khan (Special Rapporteur on the Promotion and Protection of Freedom of Opinion and Expression); Jeanette Manning (Director National Association of Attorneys General); Karuna Nundy (Lawyer at the Supreme Court of India); Judge Darian Pavli (European Court of Human Rights, Albania); and Judge Ricardo Perez Manrique (Inter-American Court of Human Rights, Uruguay). Register today!
● In recognition of World Press Freedom Day on May 3, the European Audiovisual Observatory published the 6th edition of the e-book Freedom of Expression, the Media and Journalists, Case law of the European Court of Human Rights. This 2021 updated version contains summaries of over 300 judgments or decisions by the European Court of Human Rights and provides hyperlinks to the full text of each of the summarised judgments or decision.
● IFEX Regional Editor Paula Martins has written a piece, “What do you know about freedom of expression in Paraguay,” examining the long-standing and deeply-rooted challenges facing freedom of expression in Paraguay — including impunity for attacks on journalists, media concentration, and online harassment directed against female journalists. The article coincides with Paraguay’s Universal Periodic Review at the UN Human Rights Council, which presents an important opportunity for UN member states and civil society to examine Paraguay’s human rights record, and make recommendations for how to improve it.
● The Human Rights Watch Film Festival kicks off online on May 19 and runs until May 27, streaming across the US. The films will span a range of current and pressing human rights issues from around the world, and the Q&As will feature filmmakers, film subjects and human rights leaders with a focus on prioritizing space for identities, viewpoints, forms of expertise and experiences either silenced or marginalized in the film industry, news and media.
Decisions this Week
Beaudoin v. British Columbia
Decision Date: March 18, 2021
The Supreme Court of British Columbia held that although restrictions imposed by the Gatherings and Events Order (“G&E Order”) infringed the Canadian Charter of Rights and Freedoms, the infringement was justified under the Charter. The petitioners claimed that the prohibition on religious gatherings including church services, festivals, and ceremonies violated freedom of religion, freedom of expression, as well as freedom of assembly and association. They contended that the orders disregarded the need for minimal impairment of the Charter rights, and were overbroad, arbitrary and disproportionate. However, the judge rejected these contentions finding the impugned G&E Orders were intended to address a pandemic and by necessity, and by design, had to be broad enough in scope to protect all British Columbians. The judge concluded that the restrictions struck a reasonable and proportionate balance, and hence were justifiable limits placed on the religious petitioners’ Charter rights.
European Court of Human Rights
Budinova and Chaprazov v. Bulgaria; Behar and Gutman v. Bulgaria
Decision Date: February 16, 2021
The European Court of Human Rights decided ground-breaking cases of minority othering in Behar and Gutman and Budinova and Chaprazov. The twin cases, stemming from collective domestic litigation, concern anti-Semitic/ anti-Roma hate speech. Although the applicants, community members, were not personally targeted, the Strasbourg Court found the domestic courts failed to protect their “private life” from ethnic discrimination leading to a finding of a violation of Articles 8 and 14 of the Convention. For the first time the Court found violations in cases of general anti-minority speech and articulated criteria to assess if speech is sufficiently prejudicial to affect a community’s sense of identity/ its members’ self-worth.
South Bay United Pentecostal Church v. Newsom
Decision Date: February 5, 2021
The United States (U.S.) Supreme Court granted an injunction in part over the California Governor’s enforcement of an executive order aimed at combatting COVID-19. The applicants, South Bay United Pentecostal Church and Harvest Rock Church, claimed that they were disproportionately impacted by restrictions that banned indoor worship services and indoor singing and chanting while secular businesses and activities were not subject to the total bans, violating the Free Exercise Clause of the First Amendment. Injunctions were declined by U.S. district courts and the Court of Appeal for the Ninth Circuit. The U.S. Supreme Court found that the total ban on indoor worship services did not reflect a sound determination by the State of restrictions narrowly tailored. Some of the Justices focused in on the discrepancy in treatment between religious institutions and other businesses, noting how COVID-19 risk factors were not always present in religious activities and absent in secular activities. By a 6-3 majority, the respondents were enjoined from enforcing the Tier 1 ban on indoor worship services against the applicants but were not enjoined from enforcing the ban on singing and chanting during indoor services. The Court also upheld capacity restrictions that would come into effect where indoor services were permitted. The dissenting opinions argued that worship services were actually treated just as favorably as secular activities with comparable COVID-19 risks and no relief was necessary.
Mr. B and Mr. S v. Essen Police Headquarters
Decision Date: September 17, 2019
The Higher Administrative Court in North Rhine-Westphalia, Germany held that the police infringed upon the right to freedom of assembly by taking photographs of a public assembly and its participants and publishing it on the police’s social media platforms. During a public assembly against racism, two police officers took photographs of the assembly – which allowed for the identification of the participants – for the purpose of the police’s public relations. Two of the participants brought an application seeking a declaration that the police conduct was unlawful and infringed their right to freedom of assembly under article 8 of the German Basic Law. The Court agreed with the lower court’s reasoning and held that taking of photographs at a public assembly deterred future participants and so infringed their exercise of the right to freedom of assembly. The Court held that there was no statutory basis for the police conduct and that it was, therefore, an unlawful limitation of the right.
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 and Democracy: A Primer for Twenty-First Century Reformers
Legal scholars Toni M. Massaro and Helen Norton, in an article for the UC Davis Law Review, write that “[l]eft unfettered, the 21st-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s 18th-century writers but also to its 20th-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited — by both government and powerful private actors alike — as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.” They propose that modern day reformers must “revisit the foundational questions underlying the Free Speech Clause: What, whom and how does it protect — and from whom, from what, and why?”
Reporting Facts: Free from Fear or Favour
This study written by Marius Dragomir for UNESCO “assesses the challenges, and the opportunities, for journalism today. Without press freedom, it is impossible to envisage editorial independence in the media, and without editorial independence as an essential enabler of professional standards, journalism cannot thrive. These are not ‘nice to haves’. Society depends on journalism for the vibrancy of democracy and informed responses to crises. Without journalism, a huge gap exists in holding states accountable for realizing their commitment to achieving progress in the areas covered by the Sustainable Development Goals (SDGs). The report provides a structured way of understanding the contemporary context of journalism in terms of trends in editorial independence and professional standards.”
● In this article, Peter Cunliffe-Jones, the Co-director Chevening Africa Media Freedom Fellowship at the University of Westminster, discusses a study he undertook with seven other colleagues which analyzed African governments’ response to concerns about misinformation. The study highlighted that many governments have introduced more restrictive false news laws and regulations, and the writers called for a renewed focus on how teaching misinformation literacy in schools can serve as an “antidote to falsehoods”.
● The Windhoek +30 Declaration was adopted on Monday May 3rd in commemoration of the 30th anniversary of the Windhoek Declaration and World Press Freedom Day. The original Windhoek Declaration was promulgated in 1991 and focused on the role of a free, independent and pluralistic media. As reported by Windhoek Express, “[t]he Windhoek +30 Declaration has called on the United Nations Educational, Scientific and Cultural Organization (Unesco) and other intergovernmental organisations to reinforce cooperation with governments and civil society organisations in order to safeguard and enhance guarantees for the full exercise of the right to information and freedom of expression, both online and offline, with a particular focus on strengthening media freedom, diversity, and independence as well as media viability, transparency of digital platforms, and media and information literacy.”
This newsletter is reproduced with the permission of Global Freedom of Expression. For an archive of previous newsletters, see here.