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 Knight First Amendment Institute at Columbia University and First Amendment specialists at Ballard Spahr call on Facebook to reinstate the accounts of Damon McCoy, associate professor of computer science and engineering, and Laura Edelson, Ph.D. candidate in computer science, at New York University Tandon School of Engineering. McCoy and Edelson lead NYU’s Cybersecurity for Democracy,  which operates Ad Observer, and Ad Observatory, a site for the public to explore trends in Facebook advertising, and in particular the spread of disinformation online related to the January 6th attack on the U.S. Capital. Facebook justified the termination of the accounts claiming compliance with a Federal Trade Commission (FTC) consent decree. The FTC subsequently sent a letter to Facebook saying that is inaccurate, that they received no notice of the terminations, and that the “consent decree does not bar Facebook from creating exceptions for good-faith research in the public interest. Indeed, the FTC supports efforts to shed light on opaque business practices, especially around surveillance-based advertising.”

● On 20 August 2021, Asia Centre is hosting an online event “Human Rights in the Time of COVID-19: Lessons Learned from Southeast Asia.” The event marks the release of a baseline study, “COVID-19 and SDGs: Internet Freedoms in Southeast Asia,” that evaluates the progress made towards the Sustainable Development Goals (SDGs), specifically SDG 9.C (Access and Affordability of Internet) and SDG 16.10 (Fundamental Freedoms and Access to Information) and its impact on internet freedoms. The study analyses how the pandemic has exerted a debilitating effect onto the development of internet infrastructure, fundamental freedoms and access to information. Recommendations, in strengthening the framework and commitment towards the SDGs, are outlined in the baseline study. More information and to register.

● The Arab Alliance for Digital Rights (AADR) is a new network of digital rights organizations comprising The Jordan Open Source Society – JOSA (Jordan), the Iraqi Network for Social Media – INSM (Iraq), the Arab Center for the Advancement of Social Media – “7amleh” (Palestine), SMEX , and the Technology and Law Community – “Masaar” (Egypt). The Alliance’s primary initiative is to advocate for Internet policies that reflect the Arabic-Speaking region’s complex social and political circumstances and urge individuals, groups, and companies to better adopt human rights norms online.

Decisions this Week

European Court of Human Rights
Sedletska v. Ukraine
Decision Date: April 1, 2021
The European Court of Human Rights found that judicially authorized access to a Ukrainian journalist’s mobile telephone communications data was a violation of the journalist’s right to freedom of expression under Article 10 of the European Convention. The journalist approached the Court after two Ukrainian courts had authorized law enforcement authorities to access her data in an attempt to determine whether the journalist had met with the head of anti-corruption bureau who had allegedly disclosed confidential information. The Court held that the domestic courts had failed to demonstrate that there was a legitimate interest in accessing the journalist’s data which outweighed the public interest in non-disclosure. The Court stressed the importance of protecting journalists’ sources and said that courts must apply careful scrutiny when determining whether an interference in the right is proportionate, necessary and justifiable.

Beizaras and Levickas v. Lithuania
Decision Date: January 14, 2020
The European Court of Human Rights found a violation of Article 14 read in conjunction with Article 8 of the European Convention on Human Rights (ECHR) and Article 13 owing to the failure of Lithuanian authorities to effectively respond to the applicants’ complaint against discrimination.  The applicants, nationals of Lithuania, are in a same-sex relationship. One of the applicants posted a photograph of them kissing on his Facebook page, which went viral and elicited numerous hateful comments. The applicants approached the domestic authorities to investigate the comments which they claimed incited hatred and violence based on sexual orientation. However, the Lithuanian authorities refused to initiate the pre-trial investigations. The applicants complained that they were being treated differently by the domestic authorities because of their sexual orientation. The Court built its findings on the difference in treatment by public authorities exclusively on the basis of sexual orientation. The Court found the comments to pose a severe enough threat to incite hatred, especially in light of the social context in Lithuania. Therefore, such treatment by domestic authorities lacks reasonable justification in circumstances where the authorities would normally combat hate speech by applying criminal law. The Court found that the comments on the applicant’s Facebook post affected the applicants’ dignity that falls under the realm of private life. Emphasizing the importance of tolerance, democracy and pluralism, the Court held that the State of Lithuania violated Article 14 owing to the non-fulfillment of its positive obligation to respect the right to respect for private life under Article 8.

Germany
Protester v. The State of Mecklenburg-Vorpommern
Decision Date: October 25, 2017
The Federal Administrative Court of Germany ruled that the low-altitude flight of a fighter jet over a protest camp in the run-up to the 2007 G8 summit encroached upon the right to freedom of assembly. In the context of the G8 summit in 2007, protesters had set up a camp from which they participated in several demonstrations. In support of the local police authorities, a fighter jet of the German armed forces performed a low-altitude flight over the protest camp to conduct aerial reconnaissance. The claimants asserted that the flight was unlawful, because it constituted a de-facto infringement upon their right to freedom of assembly under art. 8 German Basic Law. The claimants’ action for a declaratory judgment was refused in the first and second instance. The Court ruled that although the protest camp was not an assembly as such, it was protected as a run-up activity necessary for a later participation in actual assemblies. The extreme noise level and the threatening sight of the surprising overflight created an effect of intimidation and deterrence on the persons in the run-up to a later participation in demonstrations. This effect was capable of discouraging persons to participate in the later assemblies. Therefore, it constituted a de-facto encroachment on the right to freedom of assembly. The Court reversed and remanded the case for a decision in accordance with its ruling to the appellate court.

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.

Speech Police: The Global Struggle to Govern the Internet
David Kaye, then Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression was invited by the Carnegie Council for Ethics in International Affairs to discuss his 2018 book Speech Police: The Global Struggle to Govern the Internet published by Columbia Global Reports. Kaye observes that the internet was designed to be a kind of free-speech paradise, but it has also been used to incite violence, spread lies, and promote hate. Over the years, three American behemoths – Facebook, YouTube, and Twitter – became the way many people around the world experience the Internet, and therefore act as the conveyors of some of its most disturbing material. Who should decide whether content should be removed from platforms, or which users should be kicked off? Should the giant social media platforms police the content themselves, as is the norm in the U.S., or should governments and international organizations regulate the Internet, as many are demanding in Europe? How do we keep from helping authoritarian regimes to censor all criticisms of themselves?

UN Report on Content Regulation
In the first-ever UN report that examines the regulation of user-generated online content, the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (then  David Kaye) examines the role of States and social media companies in providing an enabling environment for freedom of expression and access to information online. In the face of contemporary threats such as “fake news” and disinformation and online extremism, the Special Rapporteur urges States to reconsider speech-based restrictions and adopt smart regulation targeted at enabling the public to make choices about how and whether to engage in online fora. The Special Rapporteur also conducts an in-depth investigation of how Internet Companies moderate content on major social media platforms, and argues that human rights law gives companies the tools to articulate their positions in ways that respect democratic norms and counter authoritarian demands.

Post Scriptum

IFEX launched a new series of Regional Spotlights, which aim to offer an antidote to the overwhelming amount of information people are deluged with every day. The full series of Regional Spotlights is available in English, Arabic, French, and Spanish:

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