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 pleased to announce that it is accepting nominations for the 2022 Global Freedom of Expression Prizes. The Prizes celebrate judicial decisions and legal services around the world that strengthen freedom of expression by promoting international standards. Anyone can nominate court decisions or legal services that have had a recognizable impact on freedom of expression.
Nominations will be accepted in English, Spanish, French, and Portuguese through December 30, 2021.

● Media Defence has created a Training Resource Hub with lots of great resources on digital rights. The Hub covers ten digital rights themes, such as defamation, privacy and restrictions to online content. Their blog this week, “Reading List: An introduction to litigating at regional mechanisms in Africa”, offers many useful resources about the African system.

● Pen America, Media Justice, and Free Press, with the support of a large group of organizations, have written to the U.S. Department of Justice requesting that they publicly condemn the spate of punitive anti-protest bills and laws being adopted across the U.S. Pen America highlights one such law was passed in Florida in April, under which “gatherings of three or more that ‘breach the peace,’ are considered third-degree felonies, punishable by up to five years in prison. If this law were on the books during the summer 2020 uprisings, thousands of people in Florida could have been arrested and fined—and if they were ultimately sentenced for rioting, they could have also lost their right to vote.”

Decisions this Week

Argentina
Pando de Mercado v. Gente Grossa SRL
Decision Date: December 22, 2020
The Argentine Supreme Court held that a magazine’s publication of a photomontage of a woman who had chained herself in front of a State building in protest against the conditions of her husband’s imprisonment did not violate the woman’s right to honor. After the photomontage was published, the woman – who was the president of the Association of Relatives and Friends of Political Prisoners of Argentina – sued the magazine arguing that the publication had violated her rights to honor, privacy and moral integrity and sought an injunction to withdraw the magazine from circulation. Two lower courts found in the woman’s favor, but the Supreme Court held that the photomontage constituted satire and political criticism and emphasized that this form of expression enabled robust political debate. The Court stated that a court should only find in favor of the reputation and honor of an individual subjected to criticism when that criticism is undoubtedly injurious and unrelated to the ideas or opinions expressed by the individual.

Italy
Forza Nuova v. Facebook Ireland NTD
Decision Date: February 23, 2020
A Court of First Instance in Italy held that Facebook was entitled to suspend the accounts of a neo-fascist party and its members. After their accounts were suspended due to racist, fascist and xenophobic comments, the Facebook users approached the Court, arguing that Facebook’s actions violated their right to freedom of expression. The Court held that the suspensions were in accordance with Facebook’s Terms of Service and the Terms themselves were lawful, and that hate speech is not protected by the right to freedom of expression and Facebook is both permitted and required to take action against hate speech on its platform.

Over the next few weeks Columbia Global Freedom of Expression will be completing its collection of all relevant decisions from the African System. The following were published this week.

African Court on Human and Peoples’ Rights
XYZ v. Benin
Decision Date: November 27, 2020
The African Court on Human and Peoples’ Rights found that the Republic of Benin was responsible for the violation of Articles 9, 22(1), 23(1), and 26 of the African Charter on Human and Peoples’ Rights (the Charter), and Article 10(2) of the African Charter on Democracy, Elections and Good Governance (ACDEG) due to the amendment of the Beninese Constitution without the prior consultation of the Beninese society or establishing any recourse to referendum. The Court held that even if the amending law was approved by the Beninese Parliament and the Constitutional Court, in a democratic society, all citizens must have access to State-held information to encourage governmental transparency and allow civilian participation in the debates concerning the promulgation of national laws. Hence, the Court concluded that the Applicant’s rights to (i) information, (ii) economic, social, and cultural development, and (iii) peace and national security under Articles 9, 22(1), and 23(1), respectively, had been violated by the Respondent State. Also, the Court found that Benin had failed to comply with its obligations to guarantee national participation or consensus in enacting laws and the independence of national courts as per Article 10(2) of the ACDEG and Article 26 of the Charter, respectively.

Ingabire Victoire Umuhoza v. Rwanda
Decision Date: December 7, 2018
The African Court on Human and Peoples’ Rights found that the Republic of Rwanda was responsible for the violation of Article 9(2) of the African Charter on Human and Peoples’ Rights, and Article 19 of the International Covenant on Civil and Political Rights against Ingabire Victoire Umuhoza. The case concerned the criminal conviction of Ingabire Victoire Umuhoza following her declarations made on the Kigali Genocide Memorial regarding the Rwanda Genocide of 1994 and her public statements criticizing the government and certain public officials. The Court held that any form of effort to coerce the right to freedom of expression, insofar as it is disproportionate or unnecessary in a democratic society, should be punished pursuant to international standards on the matter. Hence, the Court concluded that imprisoning the Applicant based on her statements and speeches amounted to a violation of her right to freedom of expression.

African Commission on Human and Peoples’ Rights
Monim Elgak and others v. Sudan
Decision Date: March 10, 2015
The African Commission on Human and Peoples’ Rights held that Sudan violated Article 9 of the African Charter on Human and Peoples’ Rights (the Charter). The case concerned the arrest and interrogation of Monim Elgak, Osman Hummeida, and Amir Suliman on account of their work as human rights defenders, particularly their alleged cooperation with the International Criminal Court’s (ICC) investigation in Sudan.  The Commission reaffirmed that any restriction on freedom of expression “must be provided by law, served a legitimate interest and be necessary in a democratic society”. The Commission considered that there was no justifiable reason to restrict the freedom of expression of the three human rights defenders since their perceived connection to the ICC, if true, had not “endangered the lives of others, national security, morality, common interest or caused any other legitimate prejudice.” Therefore, the Commission held that Sudan violated the rights of the three victims under Article 9 of the Charter. In addition, it found that Sudan violated Amir Suliman’s rights under Articles 1, 5, 6, 10, 12, 15, and 16; Monim Elgak’s rights under Articles 1, 5, 6, 10, 12, and 16; and Osman Hummeida’s rights under Articles 1, 5, 6, 10, 12(1), and 16 of the Charter.

Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v. Zimbabwe
Decision Date: April 3, 2009
The African Commission on Human and Peoples’ Rights held that Zimbabwe violated Article 9(2) of the African Charter on Human and Peoples’ Rights (the Charter). The case concerned a decision of the Supreme Court of Zimbabwe that refrained from deciding on the merits of a constitutional challenge against a new law prohibiting mass media services from operating unless registered with the Media and Information Commission (MIC). Instead, the Supreme Court ruled that the applicant, the Associated Newspapers of Zimbabwe (ANZ), had defied the law and it would not decide on the merits until the applicant submitted itself to the law. Following the ruling of the Supreme Court, the police seized the equipment, closed the premises, and prevented further publications of the applicant’s newspaper The Daily News. The police also arrested and charged employees of the ANZ and, in other cases, threatened to do so. The Commission found that by using force instead of seeking a Court order to stop The Daily News from operating illegally, the State did not comply with the principle of proportionality and therefore violated Article 9.2 of the Charter. In addition, the Commission held that the State violated Articles 1, 14, and 15.

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 the Adverse Effect of the Surveillance Industry on Freedom of Expression
In this report the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression wrote “Surveillance of individuals – often journalists, activists, opposition figures, critics and others exercising their right to freedom of expression – has been shown to lead to arbitrary detention, sometimes to torture and possibly to extrajudicial killings. Such surveillance has thrived amid weak controls on exports and transfers of technology to Governments with well-known policies of repression. In the present report, the Special Rapporteur begins by identifying the problem of targeted surveillance seen from the obligations that human rights law imposes on States and the related responsibilities of companies. He then proposes a legal and policy framework for regulation, accountability and transparency within the private surveillance industry. He concludes with a call for tighter regulation of surveillance exports and restrictions on their use, as well as a call for an immediate moratorium on the global sale and transfer of the tools of the private surveillance industry until rigorous human rights safeguards are put in place to regulate such practices and guarantee that Governments and non-State actors use the tools in legitimate ways.”

Freedom of Expression, Disinformation & COVID-19
In this episode of the UCI Law’s COVID-19 & Law series, Prof. David Kaye draws on the report submitted by him as the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression in April 2020 termed “Disease Pandemics and the Freedom of Opinion and Expression”. Taking an International Human Rights Law perspective, as opposed to a domestic law perspective, he attempts to urge the listeners to think about how it is that the tools of law can be utilized even during public health crises such as the COVID-19. In particular, he engages with the following themes: 1) the threats to free speech during the pandemic, 2) how International Human Rights Law presents certain guarantees to the freedom of expression, 3) the presence of rampant disinformation, the associated responsibilities, and the interactions with the guarantees, 4) the WHO’s guidelines on risk communication, 5) the question of how rights can be thought about as well as enforced during public health crises. The episode is moderated by Hans Keirstead.

Post Scriptum

● Oxford Analytica reports that “Algorithms are insufficient to curb disinformation” in light of the rapidly evolving capacities of automated bots in concert with malicious human actors. Despite the deluge of content, some human monitoring is still required to lower the risk of automation bias and adversarial manipulation, as well as the lack of transparency of how algorithms are designed, and due to the inability of algorithms to understand context. Even as AI is improving detection of disinformation, Oxford Analytica argues that “technical solutionism risks distracting policymakers from the root of the problem.”

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