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.

● According to the OSCE Office for Democratic Institutions and Human Rights’ (ODIHR) final monitoring report, despite a number of positive legal changes to the nomination process for the judges of Georgia’s Supreme Court, the stage of the appointment procedure carried out by parliament still lacks adequate safeguards, negatively affecting the integrity of the overall process. ODIHR calls on the Georgian authorities to work on further improving the independence, accountability, and quality of the judicial system through a broad reform process.

● Hatice Cengiz will be speaking at the at the 2021 Oslo Freedom Forum, taking place on October 4-5 in Miami, Florida. Cengiz is a Turkish activist, academic, and the fiancée of late Saudi journalist and Washington Post columnist Jamal Khashoggi, who was murdered in the Saudi consulate in Istanbul in October 2018 on the orders of Saudi Crown Prince Mohammed bin Salman. After UN Special Rapporteur Agnès Callamard’s report concluding that Saudi officials and the Crown Prince himself bear liability for Khashoggi’s killing, Hatice testified before the United Nations Human Rights Council, as well as the European Parliament, US Congress, and various other parliaments.

● Media Defense is hosting a webinar on September 28th, the 6th annual International Right to Know Day, to discuss access to information and open, transparent governance. Panelists will share their experiences of litigating against the new tactics being used by powerful actors to obstruct newsgathering. Panelists include, Taís Gasparian a Brazilian lawyer specialising in freedom of expression; Mojirayo Ogunlana-Nkanga, a Nigerian lawyer and human rights advocate; and Konrad Siemaszko, a Polish lawyer with the Helsinki Foundation for Human Rights. More information here.

Decisions this Week

United States
James Domen v. Vimeo
Decision Date: March 11, 2021
The United States Court of Appeals for the Second Circuit dismissed a lawsuit against the online video streaming site Vimeo, wherein it was alleged that it had discriminated against the plaintiffs on the basis of sexual orientation and religion. James Domen, President and Founder of Church United, had approached the Court as a result of Vimeo’s action of removing their content from its platform as it was found to be in violation of its policies that bar the propagation of sexual orientation change efforts (SOCE). The videos were posted as an effort by Church United to challenge a Californian legislation proposing to ban talk therapy and pastoral counselling on SOCE. The Court held that Section 230(c)(2) of the Communications Decency Act, 1996 immunizes Vimeo against the lawsuit as it provides a wide berth to restrict content that the Respondent Vimeo, in good faith, finds objectionable.

Otto v. City of Boca Raton
Decision Date: November 11, 2020
The United States Court of Appeals for the Eleventh Circuit held that county and city ordinances in Florida which banned the use of a controversial therapy practice infringed the First Amendment’s protection of free speech. The ordinances which prohibited licenced therapists and counsellors from administering speech-based sexual orientation change efforts (SOCE) therapy to minor patients had been challenged by two therapists. The District Court denied their motion for an injunction on the grounds that they had failed to demonstrate a substantial likelihood of success on the merits and failed to show irreparable harm would result if an injunction was not granted. The Court of Appeals overturned the District Court’s decision, holding that as the ordinances were content-based restrictions of speech they had to pass strict scrutiny and that they did not meet this standard. The Court emphasized that the government cannot regulate unpopular viewpoints and impose the majority view on controversial issues such as SOCE therapy, and that “[f]orbidding the government from choosing favored and disfavored messages is at the core of the First Amendment’s free-speech guarantee”.

Italy
Mediacom S.R.L. v. Italian Communications Regulatory Authority
Decision Date: May 11, 2020
The Regional Administrative Court of Lazio in Rome, Italy overturned a suspension imposed on two media companies’ broadcasting activities by the Italian Communications Regulatory Authority for disseminating misleading information on the Covid-19 pandemic. After the companies broadcast a television show discussing false and non-scientifically sound information on the causes and treatment of Covid-19, the Regulatory Authority held that the broadcast violated the law requiring media companies not to encourage behavior detrimental to health and safety and suspended the broadcasting licenses for six months. The Court accepted that the broadcast was unlawful but held that the sanction was disproportionate and annulled the Regulatory Authority’s decision.

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.

Zimbabwe Human Rights NGO Forum v. Zimbabwe
Decision Date: May 15, 2006
The African Commission on Human and Peoples’ Rights held Zimbabwe responsible for the violation of Articles 1 and 7 of the African Charter on Human and Peoples’ Rights. The present case concerned human rights violations occurring in Zimbabwe from the time of the Constitutional Referendum of 2000 until after the Parliamentary elections in June 2002. The violations were against opponents of the Zimbabwe African National Union-Patriotic Front (“ZANU (PF)”), including human rights activists, farmers, doctors, and teachers who were harassed, subjected to torture, and murdered by ZANU (PF) supporters. Any civilian whose political choices were not aligned with those of the ZANU (PF) party was targeted during these attacks, and further prevented from demanding redress due to the Clemency Order No. 1 of 2000, which consisted of an amnesty act that pardoned perpetrators charged with politically motivated crimes. Nonetheless, the Applicant’s submissions regarding the right to freedom of expression enshrined in Article 9 of the Charter were dismissed by the Commission, on the ground that non-state actors perpetrated the human rights violations alleged by the victims. Hence, even though the Commission repudiated the human rights violations committed by ZANU (PF) followers, the State party could not be charged with their offenses as their actions were not directly linked to the government.

Law Offices of Ghazi Suleiman v. Sudan
Decision Date: May 29, 2003
The African Commission on Human and Peoples’ Rights found that Sudan was responsible for the violation of Articles 6, 9, 10, 11, and 12 of the African Charter on Human and Peoples’ Rights. The instant case concerned human rights violations committed between 1998 and 2002 against Mr. Ghazi Suleiman, a human rights advocate based in Sudan. Mr. Ghazi Suleiman’s lectures, public speeches, and declarations promoted the protection of human rights within Sudan during a state of emergency declared by the government. In this regard, according to the National Security Act of 1994, security officials were empowered to detain, arrest, and harass civilians without any apparent legal justification. On 3 January 1999, Sudanese security officials prevented Mr. Ghazi Suleiman from delivering a public lecture in Sinnar, Blue Nile. Subsequently, Mr. Ghazi Suleiman was arrested and harassed many times by security officials seeking to restrict his right to freedom of expression on the pretext of national security and public order. The Commission observed that political debate and the dissemination of information concerning human rights are crucial for individual and collective development in a democratic society. Hence the Commission ruled that by denying Mr. Ghazi Suleiman’s freedom of expression, the Respondent State infringed the public’s right to access valuable information on human rights issues affecting Sudan at the time of the events. Therefore, the Commission held Sudan responsible for infringing Mr. Ghazi Suleiman’s right to freedom of expression.

Media Rights Agenda and others v. Nigeria
Decision Date: October 31, 1998
The African Commission on Human and Peoples’ Rights held that Nigeria violated the rights to receive information and freedom of expression by issuing a Decree that granted the Newspaper Registration Board broad discretionary powers when deciding whether to register a newspaper. Similarly, the Commission held that Nigeria violated these rights by seizing 50,000 copies of a magazine critical of the government and issuing a Decree proscribing specific newspapers without legitimate cause. The case arose during a military government in Nigeria after the annulment of the elections of 12 June 1993. The Commission considered that the discretionary powers afforded to the Registration Board invited censorship as it effectively allowed the government to prohibit any newspaper or magazine indiscriminately. The Commission reasoned that the proscription of the newspaper was not a limitation “within the law” since the Decree was made to apply to a specific individual or legal personality, raising concerns of discrimination and equal treatment before the law.

International PEN and others (on behalf of Ken Saro-Wiwa Jnr.) v. Nigeria
Decision Date: October 31, 1998
The African Commission on Human and Peoples’ Rights held that by trying and ultimately sentencing Mr. Kenule Beeson Saro-Wiwa to death for peacefully expressing his views, Nigeria violated his right to express and disseminate his opinion. Mr. Saro-Wiwa was an Ogoni activist who was arrested, tried, and sentenced to death after participating in a rally where he and others disseminated information and opinions about the rights of people living in Ogoniland, an oil-producing area in Nigeria. The Commission held that in the present case a violation of the right to freedom of expression also implied a violation of the freedom of assembly and the freedom of association due to the close relationship these rights share. In addition to Article 9.2, the African Commission held that Nigeria violated Articles 1, 4, 5, 6, 10.1, 11, 16, and 26 in relation to diverse facts of the case, including the detention, trial, and execution of Mr. Saro-Wiwa, the detention of several victims under the State Security (Detention of Persons) Act of 1984 and its Amended Decree No. 14 of 1994, the establishment of the Civil Disturbances Tribunal, and the failure to institute provisional measures in defiance of previous decisions from the Commission.

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 Encryption, Anonymity, and the Human Rights Framework
In this report, the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression addresses two linked questions: First, do the rights to privacy and freedom of opinion and expression protect secure online communication, specifically by encryption or anonymity? And second, assuming an affirmative answer, to what extent may governments, consistent with human rights law, impose restrictions on encryption and anonymity? The report seeks to answer these questions, review examples of State practice, and propose recommendations. Drawing from research on international and national norms and jurisprudence, and the input of States and civil society, the report concludes that encryption and anonymity enable individuals to exercise their rights to freedom of opinion and expression in the digital age and, as such, deserve strong protection.

Unofficial Companion to Report of the Special Rapporteur (A/HRC/29/32) on Encryption, Anonymity and the Freedom of Expression
This unofficial document is meant to accompany the report to the Human Rights Council of the Special Rapporteur on the Protection and Promotion of the Right to Freedom of Opinion and Expression. The report explores how encryption and anonymity facilitate the exercise of the rights to privacy and freedom of opinion and expression and proposes a legal framework to govern the individual use and government restriction of encryption and anonymity technologies. The report itself provides citations to numerous sources for the report’s conclusions. However, because of space requirements attached to a report to the Human Rights Council, this companion reference document was prepared to highlight a limited set of additional technical and legal resources that interested readers may wish to investigate. All of these documents informed, in one way or another, the report itself.

Post Scriptum

●  A new study from the Institute for Strategic Dialogue (ISD), “Hatescape: An In-Depth Analysis of Extremism and Hate Speech on TikTok,” found that 30% of the full sample of videos featured content promoting white supremacy, 24% featured support for an extremist or terrorist, and two of the top ten most-viewed videos mocked victims of and denied the existence of the Bosnian genocide and the Holocaust. The report is based on research conducted over a three month period and comprised a sample of 1,030 videos. ISD aimed to analyze how “how individuals or groups promote [and spread] hateful ideologies and target people on the platform based on numerous protected attributes such as ethnicity, religion, gender or others.” While some of the problematic content was removed, more than 80% remained after being flagged and posters were skilled at evasion tactics enabling them to continue disseminating the same or similar content.

● JOB POSTING: Social Science Research Council (based in Brooklyn, New York) is seeking a Program Officer to support the Media & Democracy program and its platform, MediaWell, that tracks research, journalism, and policy related to supporting healthy media systems, combating disinformation, and advancing the democratic exchange of ideas. The full job announcement is here.

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