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.

● The Coalition for Human Rights in Development, ARTICLE 19 and IFEX, have published a new report “Unhealthy silence: Development banks’ inaction on retaliation during COVID-19 ”, which presents eight emblematic case studies of reprisals and statistical analysis on 335 cases of people attacked for speaking up around COVID-19 responses. It also shows how development banks have failed to uphold their own commitments and presents a set of recommendations to address reprisals. An op-ed summarizing the findings is available here.

● Chloé Berthélémy in a blog post for the Digital Freedom Fund, “Europe’s Data Retention Saga and its Risks for Digital Rights,” discusses a range of proposed policy approaches under consideration by the European Commission to set new standards for retention of traffic and location data for law enforcement and security purposes. Berthélémy provides an overview of key European Court of Justice decisions but goes on to observe that many Member States maintain or are even enacting illegal data retention schemes. At this “crossroad” she calls on civil society and other stakeholders to encourage the Commission to find the political will to stand up to Member States to protect fundamental rights from the impacts of mass surveillance.

● The Internet Addresses Registry for Latin America and the Caribbean (LACNIC) hosted a webinar on Freedom of Expression and Internet Regulations. Discussants, including Oscar Robles (CEO of LACNIC), Professor Danilo Doneda (Instituto Brasiliense De Direito Publico), Carolina Aguerre (Co-Director of CETYS University), and Eduardo Bertoni (Coordinator of the Inter-American Institute of Human Rights), took the 2011 Joint Declaration by the Rapporteurs for freedom of expression of the OAS, UN, OSCE and the ACHPR as a starting point to evaluate how standards have evolved over the last 10 years and to assess new challenges. They considered the risks and implications of content moderation, blocking and government regulation. Archived video is available in Spanish (original), English, and Portuguese.

Decisions this Week

South Africa
Ramos v. Independent Media (Pty) Ltd
Decision Date: May 28, 2021
The Johannesburg High Court in South Africa held that an article published by Independent Media (Pty) Ltd accusing a prominent businesswoman of currency manipulation was defamatory. The article had been published after the businesswoman had been appointed to a mining company’s board, and referred to prior conduct of a bank of which she had been chief executive and politically-motivated criminal charges laid against her. The Court held that accusing an individual of criminal conduct was defamatory per se and that – even if the article was interpreted as meaning that the businesswoman had not personally committed currency manipulation – the publisher of the article had no valid defence. The businesswoman was forced to bring this case before court rather than the press ombudsman – part of the Press Council of South Africa – because Independent Media withdrew from the Press Council, the only major media entity that is not part of the Council.

European Court of Human Rights
Matalas v. Greece
Decision Date: March 25, 2021
The European Court of Human Rights (ECtHR) found that the criminal conviction of a businessman for slanderous defamation by Greek domestic courts was a disproportionate violation of his right under article 10 of the Convention. His conviction related to official company documents issued by the applicant in his capacity as managing director in private correspondence to the former legal advisor (a Ms. L.P.) of the company, where he berated her for unprofessional and unethical conduct in her legal advisory role. The first-instance Misdemeanour Court of Athens, the appellate court, and the Court of Cassation successively found the applicant to be guilty on grounds that he had not adduced proof of the factual truth of his statements, and he had published the statements by letting them be known to the lawyer drafting them, the bailiff serving them on Ms. L.P., and the residents of the building where Ms. L.P.’s office had been located because in her absence the bailiff had affixed the documents to Ms. L.P.’s door. The ECtHR found the conviction to be prescribed by law, and pursuing a legitimate aim, but disproportionate because the domestic courts’ reasoning had been insufficient. The applicant’s statements had been a mixture of facts and value judgements backed by facts, and not only facts as the domestic courts had determined. Further, the domestic courts had failed to accurately assess their limited adverse impacts on Ms. L.P.’s reputation as there was no proof they had been published publicly, and there was no indication the courts factored in the disputatious context subsisting between the applicant and Ms. L.P. Finally, the sentence was disproportionate notwithstanding its suspended nature, because the applicant’s criminal record was not expunged and such criminal sanctions were bound to have a chilling effect.

Brazil
Attorney General v. Silveira
Decision Date: February 16, 2021
The Brazilian Supreme Court imposed house arrest with electronic monitoring on a congressman who had been arrested after posting a YouTube video threatening the Supreme Court justices. Although the congressman had argued that his position as a parliamentarian guaranteed him immunity for his statements and that his video was protected by the right to freedom of expression, the Court held that his conduct was not covered by those protections and that his arrest and detention were therefore permissible. After a careful review of the videos, the Court found the content constituted a true threat to the Ministers of the Supreme Federal Court, as it intended to prevent and impair the independence of the judiciary as well as the maintenance of democratic rule of law – all of which was “clearly out of step with the postulate of freedom of expression.”

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.

Elections and Media in Digital Times
This Issue Brief from UNESCO brings together media experts including Tarlach McGonagle, Maciek Bednarski, Mariana Francese Coutinho, and Arthur Zimin to discuss emerging and increasing threats to the integrity and credibility of elections, as well as the media’s contribution to free, fair, transparent and peaceful electoral processes. This report highlights three converging trends in media and elections in digital times: 1) the rise of disinformation, 2) intensifying attacks on journalists, and 3) disruptions linked to the use of information and communication technology in electoral arrangements. Offering possible responses to the challenges at hand, this study is a tool for governments, election practitioners, media organizations, journalists, civil society, the private sector, academia and individuals.

Freedom of Speech: Theories and Foundations
A panel discussion on “Freedom of Speech: Theories and Foundations” was convened by the Emory Law Journal as part of the 2015 Randolph W. Thrower Symposium on ‘The New Age of Communication: Freedom of Speech in the 21st Century’. The Panel comprised of Dean Erwin Chemerinsky, University of California-Irvine School of Law; Professor Frederick Schauer, University of Virginia School of Law; Professor Alexander Tsesis, Loyola University Chicago School of Law; and Professor Laura Weinrib, The University of Chicago Law School, and was moderated by Prof. Julie Seaman. The objective of the Symposium was to explicate and discuss the changing doctrine of free speech in the USA, particularly in light of decisions about the contours of speech rights such as McCutcheon v. Federal Election Commission, Snyder v. Phelps, and United States v. Alvarez. The Symposium emphasized the impetus provided by these decisions and the approaches contained therein for a discourse on theories and foundations, current doctrines, as well as the future of free speech and expression.

Post Scriptum

●  Ram Eachambadi writing for JURIST reports that The Office of the High Representative (OHR) for Bosnia and Herzegovina “has introduced amendments to the Bosnia-Herzegovina Criminal Code sanctioning the glorification of war crimes or war criminals and denial of the Bosnian genocide that resulted from the Srebrenica massacre between 1992 and 1996.” The OHR stated such measures were necessary due to a rise in hate speech and a prevailing culture of impunity which are “sowing the seeds for potential new conflicts.” The High Representative personally felt he had a “moral obligation towards the citizens who suffered the horrors of the war, as well as a debt to the young people” of Bosnia to prevent the dangers of revisionist history.

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