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.
● Just released is a new collection of essays edited by Columbia University President Lee C. Bollinger and University of Chicago law professor Geoffrey R. Stone titled National Security, Leaks & Freedom of the Press: The Pentagon Papers Fifty Years On. The collection features chapters by leading national security officials, journalists, and scholars, including John Brennan, Eric Holder, Cass R. Sunstein, and Michael Morell. Contributors “reflect on the balance between the government’s legitimate need to conduct operations—particularly those related to national security—in secret and the public’s right and responsibility to know what the government is doing.” Bollinger and Stone spoke about their latest book on a LawFare Podcast.
● Media Freedom Rapid Response has issued a new mission report report “Media Freedom and Safety of Journalists in Serbia.” This report prepared by ARTICLE 19 finds that although there has been some progress in media freedom due to international pressure, the mission found there are still “major concerns about the safety of journalists in Serbia, the polarisation of the media landscape through public officials and pro-goverment tabloids and the suppression and attacks on independent media outlets.” The report concludes with a series of “urgent recommendations for the Government of Serbia to improve media freedom and safety of journalists.”
● The International Press Institute has issued a new report, “Around the corner, around the world: Reviving local news, globally.” The report discusses how media around the world have had to restructure and reinvent themselves in the digital age in order to continue reporting for their communities. This has necessitated a new way of thinking about journalism in order to keep audiences engaged, and to that end the report offers fifteen key recommendations.
Decisions this Week
European Court of Human Rights
Case of Lutsenko and Verbytskyy v. Ukraine
Decision Date: January 21, 2021
The European Court of Human Rights found that Ukraine was responsible for the violation of Articles 2, 3, 5 and 11 of the European Convention on Human Rights following the abduction, ill-treatment and torture of two protestors (one of whom was murdered) by non-state agencies. The two protestors were abused (and one killed) following the Maidan protests, as a result of escalating violence and excessive force that was approved by state authorities. The Court held that the Ukrainian Government had failed to protect these protestor’s rights to life, peaceful assembly and freedom of association, and to safeguard them from torture and inhumane or degrading treatment. Moreover, the fact no independent and effective criminal investigation had taken place further violated their rights to a fair trial. Whilst the Court noted that some measures would be appropriate to contain the protests if they became disruptive, the Ukrainian authorities had instead taken active steps to punish or intimidate protestors, prevent their participation in future events and end the protests more broadly.
Palin v. The New York Times
Decision Direction: December 29, 2020
The US District Court for the Southern District of New York held that New York’s amended anti-SLAPP law, which required public figures to prove actual malice by clear and convincing evidence, applied retroactively to the plaintiff’s defamation action. The plaintiff, Sarah Palin, had brought a claim against The New York Times Company and an author for a defamatory editorial. She disputed whether she had to prove “actual malice” in her lawsuit, but the US District Court had decided that such a burden was imposed on her by virtue of federal law. Based on an amendment to New York’s anti-SLAPP law, the defendants argued that the change in law should apply retroactively to the case – making the burden imposed on the plaintiff one by virtue of state law. US District Court Judge Jed S. Rakoff accepted that the amendment applied to the case, noting that the modified law was a remedial statute that should be given retroactive effect. The defendants’ motion was thereby granted.
R. Š. v. RTVBN d.o.o.
Decision Date: November 22, 2018
The Banjaluka District Court (“BDC”) in Bosnia and Herzegovina found that a former minister’s defamation lawsuit against media company RTVBN d.o.o. in respect of an article published on http://www.rtvbn.com, was unsubstantiated. The website’s editor, A.K., entered into an agreement with the defendant to advertise the defendant’s TV and radio program on the website. The defendant argued that he could not be held liable under the Defamation Act of Republika Srpska (“DARS”) for content on another’s website over which he had limited control. The court rejected this argument on the basis that the agreement provided not only for the rights, but also for the obligations of the defendant to monitor content published on the website. However the court rejected the plaintiff’s claim on the basis that the article had not been defamatory. The plaintiff lodged an appellation (constitutional complaint) with the Constitutional Court of Bosnia and Herzegovina (“CCBH”) in the context of his right to a private life under Article 8 of the European Convention of Human Rights (ECHR) but the Court denied the appellation and confirmed that the defendant had had the right to publish the article.
The Case of RTVBN d.o.o.
Decision Date: October 14, 2020
The Constitutional Court of Bosnia and Herzegovina (CCBH) ruled that the lower courts had violated the appellant’s (a media company) right to freedom of expression. The lower courts had failed to elaborate in any detail whether the appellant had the locus standi in respect of a defamatory article on a website that had not been owned by the appellant but which had used its logo. The appellant and a third-party had agreed that the appellant’s radio and TV program would be advertised on the website as well as the appellant’s logo. Also, the website’s name was almost the same as the appellant’s (the appellant’s business name is “RTVBN d.o.o.” and the website is www.rtvbn.com). The Constitutional Court found that the lower courts had rendered the disputed judgments without examining all the relevant aspects of the specific case in particular regarding the issue of the appellant’s locus standi and its ability to control the website’s content.
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.
Automated Online Activity and Freedom of Expression, Assembly and Religion
This video was a part of the Academy of European Law’s Conference on Artificial Intelligence (AI) and Human Rights, convened in Brussels in March 2020. In this live-stream, Dan Shefet (Lawyer, Cabinet Shefet, Paris) presents and discusses the advantages of AI decision-making to the justice system. He further discusses the “accountability of private corporations for human rights violations and the challenges in enforcing judgments against them abroad.”
Hate Speech Explained: A Toolkit
In this toolkit, ARTICLE 19 provides a guide to identifying “hate speech” and how to effectively counter it, while protecting the rights to freedom of expression and equality. It responds to a growing demand for clear guidance on identifying “hate speech,” and for responding to the challenges hate speech poses within a human rights framework. The toolkit is guided by the principle that coordinated and focused action taken to promote the rights to freedom of expression and equality is essential for fostering a tolerant, pluralistic and diverse democratic society in which all human rights can be realised for all people.
In case you missed it:
● The Aspen Institute’s panel discussion on the Facebook Oversight Board’s (OSB) decision to uphold the suspension of President Donald Trump’s account, which was suspended following the January 6 riot at the U.S. Capitol is now available on YouTube. Commentators Faiza Patel (Director, Liberty & National Security, Brennan Center for Justice) and Henry Olsen (Senior Fellow, Ethics & Public Policy Center; Columnist, The Washington Post) spoke with OSB members Jamal Greene (Professor, Columbia Law School), Ronaldo Lemos (Professor, Rio de Janeiro State University’s Law School), Julie Owono (Executive Director, Internet Sans Frontières), and John Samples (Vice President, CATO Institute).
● Katy Glenn Bass, Research Director, Knight First Amendment Institute at Columbia University spoke with the constitutional scholar Jamal Greene about his new book How Rights Went Wrong in this YouTube video. They discussed 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.
● The Electronic Frontier Foundation’s (EFF) Fireside Chat: Surveillance, with Edward Snowdon is now on YouTube. EFF Executive Director Cindy Cohn, EFF Director of Engineering for Certbot Alexis Hancock, and EFF Policy Analyst Matthew Guariglia spoke with NSA whistleblower Edward Snowden about surveillance in our culture, activism, and the future of privacy.
This newsletter is reproduced with the permission of Global Freedom of Expression. For an archive of previous newsletters, see here.