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.

● UNESCO released a new issue brief on transparency and accountability in the digital age as part of its series titled World Trends in Freedom of Expression and Media Development. The brief includes a selection of high-level principles to enhance the transparency of internet platform companies. Authored by internet policy expert Andrew Puddephatt, it was informed by a series of bilateral informal consultations with several internet companies, regulators, and experts from countries in the Global North and in the Global South.

● India’s IT Rules, 2021: Incompatible with the ICCPR and a fatal blow to democratic discourse. Raghav Mendiratta, Global Freedom of Expression Legal Rearcher, in an article for Inforrm’s Blog observes that civil liberties and free expression have seen a slow but steady breakdown in India over the last few years, culminating in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘the 2021 Rules’). His article analyses key provisions of the 2021 Rules and “explains how if upheld in their current form, the Rules could prove to be a cut to the jugular to online freedom of expression in India.”

● The Moscow bureau of Radio Free Europe/Radio Liberty (RFE/RL) and its general director, Andrey Shary, have filed their case with the European Court of Human Rights, challenging Russia’s use of “foreign agent” laws that have resulted in millions of dollars of fines being imposed on RFE/RL and Mr. Shary since January 2021. They argue that Russia’s actions violate the rights to freedom of expression and freedom of the press protected by Article 10 of the European Convention on Human Rights and are seeking seeking “Priority Status” for the case under the Court’s Priority Policy.

● Join the International Forum for Democratic Studies for a discussion with Steven Feldstein and Eileen Donahoe on Feldstein’s new book titled The Rise of Digital Repression: How Technology is Reshaping Power, Politics, and Resistance, which analyzes the challenges digital repression poses to the integrity of democratic systems globally.  Wednesday, May 26, 2021, 11:00 AM EDT. RSVP

Decisions this Week

Patricia Mukhim v. State of Meghalaya
Decision Date: March 25, 2021
The Supreme Court of India quashed the First Information Report filed under section 153A, section 500 and section 505(1)(c) of the Indian Penal code, 1860 against Patricia Mukhim, a renowned journalist and Padma Shri awardee. The appellant contended that the disputed Facebook post was made without the intention of inciting enmity between the two communities: tribals and non-tribals and promoting communal disharmony. Rather the brutal attack on non-tribals was highlighted in the Facebook post to call for suitable action against the culprits. The judges accepted this contention and ruled that the appellant’s plea calling for the equality and protection of non-tribals living in the State of Meghalaya could not be categorized as hate speech. The judges further reiterated that the disapprobation of governmental inaction could not be branded as an attempt to promote hatred between different communities and that free speech should not be stifled by implicating people in criminal cases, unless such speech has the tendency to affect public order.

Registrar General v. Patricia Mukhim
Decision Date: March 08, 2019
The divisional bench of the High Court of Shillong, in the northeastern part of India, found the editor and publisher of the Shillong Times guilty of contempt of court and fined them INR 2,00,000/- (approx. 2700 USD) each in relation to a news report published under the headline “When Judges judge for themselves”. The article suggested that Justice S.R. Sen, who was set to retire in March, had issued an order directing the government to provide medical treatment and make other provisions for retired judges, their spouses and children. The Court emphasized that the press and social media had a right to publish the news but they had a “sacred duty” to publish correct news. It stated that anyone publishing a false report would be liable for defamation and contempt of court. One week after the ruling, the Supreme Court stayed the judgment and issued notice to the High Court Registrar on the appeal filed by the editor and publisher of the newspaper.

European Court of Human Rights
Savenko (Limonov) v. Russia
Decision Date: November 26, 2019
The European Court of Human Rights held that the Russian Federation was in violation of article 10 of the European Convention on Human Rights when its domestic courts found an author and opposition leader guilty for defaming the mayor of Moscow. After the author commented that “Moscow courts are controlled by the mayor” on a live radio broadcast in response to the domestic courts supporting the government’s decision to cancel an opposition march, the mayor lodged a defamation claim, and sought 500,000 Russian roubles as non-pecuniary damage. The Moscow District Court and City Court found in favor of the mayor. The European Court of Human Rights held that limitation of the author’s right to freedom of expression in this case was not “necessary in a democratic society” and noted that limits of acceptable criticism are wider where a politician is concerned. The Court also held that the damages award was disproportionate and acted as a chilling effect on the exercise of freedom of expression.

Bosnia and Herzegovina
S. D. v. D. R.
Decision Date: March 27, 2019
The Banjaluka District Court (“BDC”) in Bosnia and Herzegovina held that if an allegedly defamatory interview gets published in an online article, then the author of the article will be liable for defamation, not the interviewed person. The plaintiff, S.D., sued the defendant D.R. over an interview which he gave to a local journalist about political corruption. The published article quoted D.R. as alleging that S.D. was involved in a variety of illicit activities. Following publication, the plaintiff lodged a lawsuit which was denied by both the first-instance court and the second-instance court (BDC). The case law holds that in such cases a lawsuit should be directed against the author of the article, rather than the person who gave a certain statement in an interview.

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.

The Right to Information in Times of Crisis: Access to Information – Saving Lives, Building Trust, Bringing Hope!
This issue brief written by Toby Mendel and Laura Notess on “The Right to Information in Times of Crisis” is part of the UNESCO series “World Trends in Freedom of Expression and Media Development”. It recognizes the heightened importance of information in crises such as the COVID-19 pandemic and attends to the ways in which States can foster trust among members of the public by enabling and ensuring access during such crises. Building on lessons learnt during the COVID-19 pandemic, it concludes that States should put in place robust digital systems for the right to information, including in preparation for possible crises. The objective of the issue brief is for it to serve as referential guidance for UNESCO member States, civil society organizations, media outfits, academics, and internet companies.

The Impact of Coronavirus on Media Freedom
In this Briefing, the European Parliament discusses: 1) the current state of media freedom, 2) the impact of coronavirus on media freedom, 3) the wider implications of media freedom restrictions, and 4) EU action to protect and boost media freedom. The briefing observes that as the coronavirus pandemic continues to have significant ramifications for public health, social welfare and the economy, the crisis also presents a significant threat to media freedom. Further, media freedom proponents have warned that governments across the world could use the coronavirus emergency as a pretext for the implementation of new, draconian restrictions on free expression, as well as to increase press censorship.

Post Scriptum

● Just Security in their post “The US Should Respect the ICC’s Founding Mandate” critiques the American Society of International Law Task Force report on “U.S. Policy Options for Engagement with the ICC.” While they applaud the reports description of ways in which the ICC’s work intersects with U.S. interests, they  “disagree with recommendations that would make prosecution of U.S. nationals before the Court less likely, even in the absence of genuine national proceedings. This would advance neither justice nor the Court’s success.”

● The UK Department for Digital, Media, Culture and Sport has published a draft Online Safety Bill aimed to “help protect young people and clamp down on racist abuse online, while safeguarding freedom of expression.” Critics argue that the bill is “largely concerned with pushing social networks to take down more content, not less,” the Guardian reports.

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