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 is happy to announce another collaborative partnership to expand our Case Law Database. Through cooperation with Mexico’s Supreme Court we will soon host analyses, in both English and Spanish, of all landmark decisions relating to freedom of expression in Mexico. Find out more in our coming newsletters!

● A group of 10 press freedom organizations called on the Maltese authorities to implement the recommendations of the Public Inquiry into the assassination of investigative journalist Daphne Caruana Galizia.  The Public Inquiry concluded that the State was indirectly responsible for the murder as it enabled a culture of impunity, failed to recognize the imminent threats and failed in its positive obligation to protect the safety of journalists. The Public Inquiry recommended the State strengthen the rule of law and the safety of journalists by “remedying the failure of the Police and regulatory authorities to promptly and effectively intervene to investigate allegations” made by journalists.

● The Human Rights Foundation’s Center for Law and Democracy has published a policy note, “Unraveling China’s Attempts to Hinder Academic Freedom: Confucius Institutes,” which examines how the Chinese Communist Party (CCP) “has threatened academic freedoms globally by interfering in schools and universities through the CCP’s state-funded Confucius Institutes (CIs).” They observe that “while marketed as educational programs and centers that fund Chinese language, history, and culture courses, CIs, in reality, are mouthpieces that amplify the Chinese government’s propaganda.”

Decisions this Week

The Case of the Brazil Fake News Inquiry
Decision Date: May 26, 2021
A Brazilian judge ordered Facebook and Twitter to suspend the accounts of individuals under investigation for the “dissemination of fake news, false accusations, threats” and other illegal conduct, “affecting the honorability and security of the Supreme Court, as well as that of its members and their families”. Following growing criticism of the Supreme Court online, the Chief Justice had ordered a criminal inquiry and appointed a justice to preside over the inquiry. That justice found that there was evidence of a “coordinated use of organized computer tools, such as accounts on social networks, to create, disclose and disseminate false information or capable of harming institutions of the rule of law, notably the Supreme Court”. After ordering Twitter suspend the accounts and learning that the suspensions were restricted to viewers from within Brazil, the Justice issued an additional order requiring Twitter to block access to the accounts for all users irrespective of their location.

X v. Union of India
Decision Date: April 20, 2021
The High Court of Delhi, India ordered the police to remove content unlawfully published on a pornographic website and search engines to de-index that content from their search results and directed that all parties take action to prevent further publication of similar or identical content. After a woman had discovered that photographs from her social media accounts had been published on a pornography website without her knowledge or consent she filed a complaint with the police and the National Cyber-Crime Reporting Portal and then approached the High Court. The Court stressed the need for “immediate and efficacious” remedies for victims of cases like this as well as the need to balance the obligations of internet intermediaries and the rights of the users, and set out the type of directions that a court can issue in these cases.

United States
FCC v. Prometheus Radio Project
Decision Date: April 1, 2021
The Supreme Court of the United States affirmed the decision of the Federal Communications Commission (FCC) in a case concerning media cross-ownership rules set under section 202 (h) of the Telecommunications Act of 1996. In 2002, FCC’s decision to relax erstwhile media ownership rules which prohibited cross-ownership of newspapers with television and radio broadcast stations was challenged by Prometheus Radio Project and other public-spirited groups (Prometheus) before the U. S. Court of Appeals for the Third Circuit. Post subsequent appellate court decisions which blocked FCC’s attempt to relax such rules, its orders modifying and repealing previous ownership rules were vacated again by the Third Circuit in 2019 for failing to consider gender or social disadvantage diversity alongside racial diversity. The Supreme Court reversed the judgment of the Third Circuit which declared FCC’s orders as being arbitrary and capricious under the Administrative Procedure Act (APA). The Court noted that the assessment made by the FCC fell within the zone of reasonableness as permitted under the APA. In light of the sparse record on minority and female ownership and the FCC’s findings with respect to competition, localism, and viewpoint diversity, the Supreme Court held that the decision to repeal or modify the ownership rules was valid under law.

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.

Report on Online Hate Speech
In this 2019 report by then U.N. Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression David Kaye explains how international human rights law provides a framework for Governments considering regulatory options and companies determining how to respect human rights online. The Special Rapporteur begins with an introduction to the international legal framework, focusing on United Nations treaties and the leading interpretations of provisions related to what is colloquially called “hate speech”. He then highlights key State obligations and addresses how content moderation by companies may ensure respect for the human rights of users and the public. He concludes with recommendations for States and companies.

Hate: Why we should Resist it with Free Speech, Not Censorship
Nadine Strossen, professor of law at NYU School of Law and former president of the ACLU, spoke at Claremont McKenna College about her book Hate: Why we should Resist it with Free Speech, Not Censorship in which she dispels the many misunderstandings that have clouded the perpetual debates about “hate speech vs. free speech.” She argues that an expansive approach to the First Amendment is most effective at promoting democracy, equality, and societal harmony and that anti-hate speech laws are not effective in reducing the feared harms, and worse yet, are likely counterproductive by giving enforcement officials the power to suppress vital expression and target minority viewpoints. The solution, maintains Strossen, instead is to promote equality and societal harmony through vibrant “counterspeech”

Post Scriptum

●  Anushka Sahay writing for JURIST reports that “five journalists who were on the list of alleged surveillance targets by Indian government agencies using Israeli hacking software Pegasus on Monday filed writ petitions with the Supreme Court of India stating that the agencies violated their fundamental rights, guaranteed under the Constitution of India, through unauthorized use of surveillance.”

● In an essay for the Knight First Amendment Institute’s Occasional Paper series, “Amplification and its Discontents,” Daphne Keller discusses the many challenges to regulating algorithms as a means to restrict distribution of harmful or illegal content. While her analysis is based largely on U.S. First Amendment law, she also refers to “novel regulatory models” which are more prevalent in Europe. She concludes “that many models for regulating amplification face serious constitutional hurdles, but that a few—grounded in content-neutral goals, including privacy or competition—may offer paths forward” to better laws and policies.

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