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.

● Columbia Global Freedom of Expression and Escuela Federal de Formación Judicial of Mexico (Federal Judicial Training School from Mexico) are happy to announce a capacity building course on freedom of expression and the jurisdictional function. The program will take place during September and October 2021 and will train over 200 federal judges from Mexico in the protection and promotion of freedom of expression, access to public information and safety of journalists.

● David Kaye, former U.N. special rapporteur on freedom of expression, and Marietje Schaake,  International Policy Director at Stanford University’s Cyber Policy Center published an op-ed in the Washington Post “Global spyware such as Pegasus is a threat to democracy. Here’s how to stop it.” They call on the international community to establish a global export regime to restrain the use of such technologies and in the interim ask governments to “implement a moratorium on the sale and transfer of spyware technology” and “put in place transparent, rule-of-law based requirements for any use of spyware.” Further, “victims of spyware must be granted the ability to sue governments and companies involved in the surveillance industry.”

● ARTICLE 19 has submitted an expert contribution to the Italian Senate on the Bill 2005 (“Zan Bill”) that would amend the Penal Code provisions on incitement. Specifically, they propose including sex, gender, gender identity, sexual orientation and disability as protected characteristics in the crimes of violence, discrimination and incitement to violence. They argue that this is necessary to align the national legal framework with international standards on equality and non-discrimination. Their submission further offers recommendations for legislators and enforcers.

Decisions this Week

European Court of Human Rights
Big Brother Watch v. the United Kingdom
Decision Date: May 25, 2021
In the case of Big Brother Watch and Others v. The United Kingdom (No. 2), the Grand Chamber of the European Court of Human Rights (ECtHR) concluded that section 8(4) and Chapter II of the UK’s Regulation of Investigatory Powers Act (“RIPA”) had violated the rights to privacy and freedom of expression of the European Convention on Human Rights (Convention). The applicants argued about the compatibility of three electronic surveillance programs operated by the UK’s Government Communications Headquarters (GCHQ) with the Convention. These programs were the following: (i) Bulk interception under the TEMPORA program, which stored and managed large volumes of data drawn from bearers; (ii) the intelligence-sharing regime with foreign countries, particularly the United States of America through the medium of the PRISM and Upstream programs; and, (iii) the procurement of communications data from communications service providers (CSPs). The three complaints were submitted after Edward Snowden’s disclosures revealing surveillance programs managed by both the intelligence services of the United States of America and the United Kingdom. The Grand Chamber found that the UK’s regimes on bulk interception and obtaining data from communications service providers had violated the Convention as the following deficiencies were detected: (i) the absence of independent authorization and oversight (the so-called “end-to-end safeguards”); (ii) no categories of selectors were included in the applications for a warrant; (iii) there was no prior internal approval of the selectors linked to an identifiable individual; and, (iv) the State did not examine other less intrusive measures before activating and implementing electronic surveillance programs, among other safeguards.

Fakhoury v. Crusoé
Decision Date: March 3, 2021
The São Paulo Court of Justice held that a businessman was not entitled to an automatic right of reply in response to a magazine’s report linking him to “virtual militancy” in defence of the President. After the magazine had published the report, the businessman wrote to it, stating that his honor had been offended by the report and he requested a right of reply. He further argued that he should have been consulted before the report’s publication. The lower court found in the businessman’s favor, but, on appeal, the Court held that there had been no injury to the businessman’s honor and that allowing individuals to veto the publication of articles in which they were mentioned would inhibit investigative journalism and threaten the right to freedom of expression.

Teacher v. Land of Berlin
Decision Date: August 27, 2020
The Federal Labor Court of Germany decided that a general ban on headscarves in schools discriminated against a Muslim applicant who was therefore found eligible for financial compensation. The claimant, a Muslim information scientist, wore a religious headscarf in a job interview while applying to the state of Berlin for an employment program for recruiting school teachers. During the job interview, the employer pointed her to the Berlin Neutrality Act, which prohibits teachers from wearing a religious headscarf when teaching. The claimant received no notification about her application for employment from the defendant following her interview and hence filed a claim for compensation under the General Act on Equal Treatment. She asserted discrimination on the grounds of her religion. The defendant state alleged that banning headscarves in schools was an essential and decisive occupational requirement for teachers and was thus justifiable. The Court held that the Berlin Neutrality Act does not justify a general ban on headscarves because, according to established case law of the Federal Constitutional Court, a ban on headscarves for teachers during service was only permissible if there was a credible threat to school peace and state neutrality. Since the defendant did not prove the existence of such a threat, the state’s conduct constituted unjustified discrimination of the claimant.

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.

This section of the newsletter features teaching materials focused on global freedom of expression which are newly uploaded on Freedom of Expression Without Frontiers.

Access to Information: A New Promise for Sustainable Development
The aim of this UNESCO report is to understand developments in access to information (ATI) laws and their implementation, covering evolving international standards, models for implementation bodies, and new digital challenges and opportunities. In order to understand the drivers of change, the Report examines trendsetting activities within UNESCO, the Sustainable Development Agenda, the Universal Periodic Review, the Open Government Partnership, and the standard-setting work of regional intergovernmental organizations and national oversight bodies. The research also draws on unique UNESCO surveys and analysis of Voluntary National Reports presented at the United Nation’s High-level Political Forum. The research shows how Sustainable Development Goal 16.10 offers a new opportunity for advancing ATI.

Intensified Attacks, New Defences: Developments in the Fight to Protect Journalists and End Impunity
The aim of this UNESCO Report is to provide a holistic assessment on the safety of journalists around the globe as well as a yearly update on the status of journalist killings. The study covers the period 2014-2018, as well as several developments in 2019. It takes stock of trends in killings of journalists, and other attacks faced by media professionals. It is based on UNESCO’s monitoring of killings as recognized by the Director-General of the Organization, as well as information provided by Member States and research by international NGOs. Among the key findings the Report emphasizes, the continued trend of impunity for attacks against journalists and highlights the increased prevalence of digital threats and harassment online, including those targeting women journalists. It sheds light on new reporting and monitoring initiatives on the safety of journalists, notably within the framework of SDG indicator 16.10.1, and looks at good practices reported by Member States to enhance efforts to monitor, prevent, protect and prosecute in relation to safety of journalists.

Post Scriptum

● Edgar Odongo of JURIST reports that a group of human rights organizations has filed a criminal complaint against 25 El Salvadoran soldiers and an officer, accusing them of the murder of four Dutch journalists during the civil war in the 1980s which left over 75,000 people dead. This call for justice is now possible after the El Salvador Supreme Court declared an amnesty law, which granted absolute amnesty to all the perpetrators of the civil war, unconstitutional.

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