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 Human Rights Centre of Ghent University (Belgium), together with the Equality Law Clinic of the Université Libre de Bruxelles, submitted a joint third party intervention before the European Court of Human Rights in the communicated case of Mikyas and others v. Belgium. The Court is being asked to rule on the prohibition on wearing headscarves in Belgian public high schools. Their submission highlights various elements of the legal and societal context of the case and suggests possible pathways of legal reasoning under the European Convention of Human Rights that may be relevant to both lawyers and Judges working on the case as well as for the further development of case law.
● In a blog for the Digital Freedom Fund, Fighting for Free Speech Online: SIN vs Facebook, Dorota Głowacka discusses developments in a lawsuit from Polish civil-society organisation SIN challenging Facebook’s opaque and arbitrary content moderation practice to ensure social media users are protected from private censorship and have procedural safeguards online. Głowacka hopes this lawsuit will contribute to regulatory changes that will enable users to have better control of what they can see and share online.
● In the recent ruling “Timothy King v. Gretchen Whitmer,” the United States District Court Eastern District of Michigan Southern Division recommended 9 lawyers for suspension or disbarment finding their “claims and legal contentions” relating to alleged irregularities during the 2020 Presidential Election process in Michigan “were not well-grounded in law or fact” and the lawsuit was filed “in bad faith and for an improper purpose.” The improper purpose was to use the “judicial process to frame a public ‘narrative,’” “that our election processes are rigged and our democratic institutions cannot be trusted,” a narrative which led to violence. The Judge further dismissed Sydney Powell’s assertion that lawyers should be extended the same First Amendment protections as journalists, noting that “the two professions have very different ‘duties and responsibilities’” and that “it is not acceptable to base a lawsuit on opinions or exaggerations.”
Decisions this Week
G.W. v. Gannett Co.
Decision Date: December 29, 2020
The Superior Court of the Commonwealth of Massachusetts granted publishers’ Motion to Dismiss and held that the plaintiff G.W. was not entitled to the Right to be Forgotten. The plaintiff requested an order for the removal of webpages and links to public police blotter reports of his/her arrest for misdemeanors in 2013 which were still posted on the new sites, even though the official records were expunged or sealed. The Court refused to grant an order of removal since the 2013 reports were accurate and truthful, even if incomplete and dated. The Court was “not unsympathetic to plaintiff’s wish to reset the narrative about past events nor was the court unconcerned about the potential collateral damage the old reports could have on plaintiff’s employment, housing or credit prospects”. However, as this was not a defamation case and the defendants were newspaper publishers, according to the judge, the plaintiff’s claim for relief was superseded by the First Amendment of the United States Constitution.
Max Mosley v. Google
Decision Date: January 24, 2014
The Regional Court of Hamburg in Germany held that a well-known individual was entitled to injunctive relief against Google, requiring it to remove all images of the individual engaged in sexual intercourse within the Federal Republic of Germany on all pages belonging to the domain of google.de. After a British tabloid newspaper published the photos of the individual, he engaged repeatedly with Google to remove the images from their Google Images search index but, although Google complied with the requests, versions of the images continued to be published online and appear in Google’s search results. The individual approached the Court, arguing that Google had infringed his personality rights under article 2(1) in connection with article 1(1) of the German Basic Law and was liable to remove all images from their search results. The Court noted that the nature of the images meant that the individual’s personality rights were infringed and that Google had an obligation to take action to prevent the re-emergence of the images in its search results.
European Court of Human Rights
Bodrožić v. Serbia
Decision Date: June 23, 2009
The European Court of Human Rights unanimously ruled that Serbian courts violated Mr. Bodrožić’s right to freedom of expression by finding him liable for insult in criminal proceedings for calling a local controversial historian (J.P.) a fascist and an idiot. The domestic courts reasoned that the applicant in the press article failed to respect the human dignity of J.P. by calling him a fascist which was an untrue fact. The European Court, contrary, argued that the impugned article contributed to the debate of public interest and that the word fascist was an acceptable criticism under Article 10 of the European Convention on Human Rights.
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.
The African Commission on Human and Peoples’ Rights
Egyptian Initiative for Personal Rights v. Egypt
Decision Date: October 12, 2013
The African Commission on Human and Peoples’ Rights held Egypt responsible for the violation of Articles 1, 2, 3, 5, 9, 16, 18, and 26 of the African Charter on Human and Peoples’ Rights. The present case concerned protests that occurred on 25 May 2005 at the Saad Zaghloul Mausoleum and the Press Syndicate. Supporters of the Egyptian Movement for Change, who were promoting a constitutional amendment to allow multi-candidate presidential elections in Egypt, were assaulted by riot police and followers of the National Democratic Party, the ruling party in Egypt at the time of the events. The victims were targeted due to their female gender, profession as journalists, and political opinions. In this respect, the Commission held that the right to freedom of expression is one of the cornerstones of democratic governance; therefore, public officials are expected to tolerate a higher degree of criticism in their capacity as public figures. The Commission also ruled that freedom of expression can only be restricted pursuant to the Charter when the restriction serves a legitimate purpose and is proportionate and necessary in a democratic society. Taking account of the fact that the victims were journalists, most of whom attended the demonstration to disseminate their views on the constitutional amendments and record the event, the Commission concluded that by facilitating the victim’s assault, the Respondent State infringed their right to freedom of expression under Article 9 of the Charter.
Open Society Justice Initiative v. Cameroon
Decision Date: September 18, 2019
The African Commission on Human and Peoples’ Rights held that Cameroon violated Article 9 (Right to Receive Information and Free Expression) of the African Charter on Human and Peoples’ Rights. The case concerned the state monopoly that existed in Cameroon until 1990 and the lack of fair procedures as well as lack of independence of the authority responsible for issuing broadcasting licenses in accordance with Law No. 90/052 aimed at liberalizing broadcasting. In addition, the case relates to the arbitrary denial of a broadcasting license and the seizure of radio station equipment. While the Commission refrained from addressing the allegations in relation to the previously existent state monopoly, it reasoned with regards to the licensing process that the Minister of Communication could not be understood as an independent regulatory body since as part of the executive branch, it does not enjoy the required protection from political interference. Similarly, the Commission considered that the lack of sufficient protection against arbitrariness, together with the practice of the Minister of issuing informal authorizations not provided in the law, did not comply with the level of precision required for a licensing process to be considered “provided by law” as required for such interference. Furthermore, for the same reasons, the Commission found that the victim was arbitrarily denied access to the premises of his radio station and that the licensing processes conducted by the Minister were neither fair nor transparent and, as such, constituted an impermissible prior restraint. In light of all the facts, the Commission found that the State violated Articles 1, 2, 9, and 14 of the African Charter.
Interights and others v. Mauritania
Decision Date: June 4, 2004
The African Commission on Human and Peoples’ Rights found that Mauritania was responsible for the violation of Article 10.1 (Right to Freedom of Association) of the African Charter on Human and Peoples’ Rights. The present case relates to the dissolution of the political party known as the Union des forces démocratiques-Ere nouvelle (“UFD/EN”) under the provisions of Articles 11 and 18 of the Mauritanian Constitution, and Articles 4, 25, and 26 of the Decree 91-024 of 25 July 1991, which punished any resort or attempt to damage the country’s image, incite violence or cause public outrage against the government. In this respect, the Applicant argued that the declarations delivered by the UFD/EN leaders during the pre-campaigns for the elections of 2001 were consistent with the Mauritanian Constitution. In the Applicant’s view, political debate is critical for democratic governance and hence, government and public officials must tolerate a higher degree of criticism, even if perceived as insulting. On the other hand, the Respondent State maintained that the dissolution of the UFD/EN was made on the basis of preserving national security and order as per Article 27 of The Charter. The Commission partly concurred with the Respondent State’s allegations that the dissolution order had a legitimate aim. However, the Commission ruled that the dissolution measure was disproportionate in light of the offenses attributable to the leaders of the UFD/EN. In conclusion, the Commission found no violation of the right to freedom of expression.
Liesbeth Zegveld and other v. Eritrea
Decision Date: November 20, 2003
The African Commission on Human and Peoples’ Rights held that Eritrea violated Article 9(2) of the African Charter on Human and Peoples’ Rights relating to the right to express and disseminate opinions within the law. The case concerned the illegal detention of eleven former government officials who were openly critical of the Eritrean Government. In this case, the Commission found that the State indeed interfered with the victims’ right to freedom of expression and that such restriction did not comply with the Charter nor other relevant international human rights standards. In particular, the Commission noted that no charges were brought against the victims, nor had they appeared before the courts. In addition to freedom of expression, the Court held that Eritrea violated the right to freedom from discrimination, the right to personal liberty and protection from arbitrary arrest, as well as the right to a fair trial under Articles 2, 6, and 7(1), respectively.
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.
Free Speech, Privacy, and Autonomy
Adam Moore in this journal article for Social Philosophy and Policy, writes that “[w]hile autonomy arguments provide a compelling foundation for free speech, they also support individual privacy rights”. Considering how speech and privacy may be justified, the article argues that “the speech necessary for self-government does not need to include details that would violate privacy rights”. Additionally, it argues that “if viewed as a kind of intangible property right, informational privacy should limit speech and expression in a range of cases. In a world where we have an overabundance of content to consume, much of which could be called ‘information pollution,’ and where there are numerous platforms to broadcast one’s expressions, it is increasingly difficult to maintain that speech should trump privacy.”
How to Shape Academic Freedom in the Digital Age? Are the Retractions of Opinionated Papers a Prelude to “Cancel Culture” in Academia?
Jaime A. Teixeira da Silva in this journal article for Current Research in Behavioral Sciences, argues that “to maintain a truly sustainable scholarly discourse, the best academic way to counter [radical, unpopular, or insensitive] opinions is by allowing disagreeing voices to express themselves, also as letters to the editor or commentaries. Pressure-induced retractions of opinions not only stifle academic debate, they send the message that opinions need to be moderated and standardized to meet a publishing market that is being increasingly driven by legal parameters, political correctness, as well as business and commercial values rather than academic ones. In an environment of restrictive academic freedom, what emerges is an academia in which the way things are said, tone, and the sensitivity of those that might be affected are given greater weight than the message itself.”
● ARTICLE 19 has published the first essay in a new series, Boundaries of Expression. Jo Glanville in her essay “Why the right to truth matters,” explores the obstacles to upholding the right to truth and why it remains so contested. She observes that “[i]t is a right that is inextricably linked to our right to information and intrinsic to the right to freedom of expression” and that victims have a right to know what took place and who was responsible. Through a range of recent examples from Poland, Northern Ireland, Bosnia and Mexico she illustrates the difficulty of establishing truth without justice and that even when justice has been officially served, “it may also not be enough to cement the truth of historical facts.”
● The Center for International Media Assistance has published a new report, “Spyware: An Unregulated and Escalating Threat to Independent Media,” which found that “the unchecked growth of the commercial spyware industry is providing repressive governments with new tools to surveil, harass, and attack independent journalists and their sources in a new battlefront against the free flow of information. The chilling effect of this is strongest in countries with a history of restricting free expression and weak legal and policy environments for safeguarding independent journalism.”
This newsletter is reproduced with the permission of Global Freedom of Expression. For an archive of previous newsletters, see here.