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 working with the African Court on Human and Peoples’ Rights to establish a collaborative partnership to expand our Case Law Database to include additional decisions from the African Court. Through this cooperation, the database will host analyses of all landmark decisions of the Court relating to freedom of expression on the continent and update the case law database with all new decisions on freedom of expression and access to information the Court delivers. Find out more in our coming newsletters!

● Reporters Without Borders (RSF) has published a country report on Russia titled “Taking control?” which shows how massively the state leadership under President Vladimir Putin has restricted freedom of the press and freedom of expression in recent months. The report traces the development from the first bans on content in 2012 to the present day and questions the ability and relevance of international platforms to impact freedom of expression in Russia. The new report is an update of the report “Everything under control? Internet Censorship and Surveillance in Russia,” which RSF published in November 2019. The update is available online in English, Russian and German.

● Join the the Brennan Center for Justice at New York University for an online panel, “Guns vs. Speech: Does the 2nd Amendment Threaten the 1st?” The Brennan Center reports that between January 2020 and June 2021, at least 560 protests included the presence of armed individuals and self-proclaimed “militias” and one out of six of those demonstrations resulted in violent or destructive activity. The panel will address a range of questions including whether speech can be free when armed counter-protestors mix with unarmed protesters? What does this tension between the freedoms protected by the First and Second Amendments bode for democracy? And should state laws regarding the presence of guns at polling places be strengthened? Tuesday, September 14, 2021, 12:00 p.m.–1:15 p.m. ET. RSVP for this virtual event.

Decisions this Week

Bosnia and Herzegovina
The Case of Political Party “Ujedinjena Srpska”
Decision Date: March 3, 2021
The Constitutional Court of Bosnia and Herzegovina (CCBH) ruled that there had been no violation of the freedom of expression of the Political Party “Ujedinjena Srpska” following the decision of the Central Election Commission of Bosnia and Herzegovina (CEC) to fine the party for illegal acts of political campaigning. The CEC had fined the political party for running a paid electoral campaign during a period it was not allowed to do so. The Bosnia and Herzegovina Court (BHC), as the second-instance forum, upheld the CEC’s decision. The CCBH subsequently held that the interference with Ujedinjena Srpska’s right to freedom of expression fulfilled the tripartite test of legality, achieving a legitimate aim, and necessity.

Germany
Ein Prozent v. Facebook Ireland Ltd.
Decision Date: June 16, 2020
The Dresden Higher Regional Court in Germany held that Facebook was permitted to block access to its platforms for associations they classify as “hate organizations”. After a German right-wing association was classified as a hate organization and permanently blocked on Facebook’s social networks the association approached the Courts. The Higher Regional Court confirmed the decision of the Regional Court, and noted that social networks are in principle free to exclude hate organizations and their supporters under their terms of use. It held that as long as these exclusions are not arbitrary and take into account the users’ fundamental rights and the economic effects of a permanent exclusion the social media platform is entitled to permanently block users so as to protect its own interests. As the exclusion of the right-wing association met these requirements, the Court rejected the application for a preliminary injunction.

Inter-American Court of Human Rights
Álvarez Ramos v. Venezuela
Decision Date: August 30, 2019
The Inter-American Court of Human Rights held that Venezuela had violated the right to freedom of expression by imposing criminal defamation sanctions on a journalist. The journalist had been sentenced to two years and three months in prison for the crime of continued aggravated defamation after publishing an article about alleged irregularities in the management of the Savings Bank of the National Assembly of Venezuela. The Court held that the article concerned a matter of public importance and that the use of criminal sanctions to protect the honor of a public official “is not conventionally appropriate” and Venezuela had therefore infringed the American Convention on Human Rights and awarded damages to the journalist.

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.

Agnes Uwimana-Nkusi v. Rwanda
Decision Date: November 10, 2019
The African Commission on Human and Peoples’ Rights held Rwanda had violated the right to freedom of expression of two journalists under Article 9 of the African Charter on Human and Peoples’ Rights. The case concerned the criminal conviction and sentencing of journalists Agnes Uwimana-Nkusi and Saidati Mukakibibi following the publication of three articles reporting on Rwanda’s government’s shortcomings, alleged corruption charges among high-ranking government officials, and the ethnic division at the time of the events. With respect to the victims’ conviction on the grounds of defamation and threatening national security, the Commission held that criminal defamation laws are not compatible with Article 9 of the Charter since they restrict journalists’ freedom of expression and the public’s right to access valuable information. The Commission recalled the importance of freedom of expression in democratic societies, mainly in encouraging political debate and personal development. Furthermore, in light of the criminal sanctions imposed on the victims, the Commission concluded that depriving the victims of their liberty as a means to regulate or restrict their right to freedom of expression was neither necessary nor proportionate in a democratic society.

Article 19 v. Eritrea
Decision Date: May 30, 2007
The African Commission on Human and Peoples’ Rights held that Eritrea had violated journalists’ freedom of expression and that related domestic laws did not conform with obligations under the African Charter on Human and Peoples’ Rights (the Charter). The present case related to the incommunicado detention and ill-treatment of 18 journalists, following a public letter published by a dozen senior officials and other members of the ruling elite criticizing the government. The publication of the letter triggered public outrage against the government which lead to the retaliatory dismissal of public officials, the arrest of journalists, and a temporary ban of all private newspapers. The victims in the present case were never brought before a judge, allowed communication with their respective families, or provided with legal counsel. Eritrea argued that the detention of journalists and the restrictions imposed on private newspapers were necessary to protect and preserve national security and public order. The Commission observed that “no political situation justifies the wholesale violation of human rights” and the imposition of such restrictions often inflames tensions. According to the Commission, international standards and obligations under the Charter must be accorded hierarchy over domestic legal frameworks, otherwise fundamental rights could be undermined by domestic laws.

Huri-Laws v. Nigeria
Decision Date: November 6, 2000
The African Commission on Human and Peoples’ Rights held that Nigeria had violated the freedom of expression of human rights defenders. The instant case concerned human rights violations committed against the staff of the Civil Liberties Organization (“CLO”), an NGO based in Lagos, Nigeria, that strives to educate people on their fundamental rights. The victims of the present case were subjected to torture, arbitrary detentions, and harassment by agents of the State Security Services to prevent them from advocating for human rights within Nigeria. The Commission ruled that the repeated persecutions, detentions, torture, and harassment suffered by CLO’s members and employees undermined and restricted their fundamental freedoms resulting in a violation of their right to freedom of expression.

Amnesty International and others v. Sudan
Decision Date: November 15, 1999
The African Commission on Human and Peoples’ Rights found that Sudan had unnecessarily restricted the right to freedom of expression based on an emergency order. The present case concerned the human rights situation prevailing in Sudan following a coup in July 1989 when the Sudanese military and police arrested, illegally detained, executed, and tortured non-Muslims and individuals allegedly associated with the Sudan People’s Liberation Army without conducting prior criminal investigations or exhausting fair judicial proceedings. Likewise, government opponents, trade unions and religious leaders, and human rights activists were persecuted, harassed, and arrested by government officials based on their beliefs. Sudan argued that during the state of emergency, any political opposition which threatened national security amounted to a violation of a lawful government decree. The African Commission held that the restriction of human rights during national emergencies is not permitted beyond what is necessary and when such a measure is required by law, the restriction should be minimal as per the spirit of the Charter. The Commission also ruled that in a democratic society, the fulfillment and enjoyment of human rights must not be seen as a threat to national stability and security; quite the contrary, human rights legitimize the government and its operations.

Amnesty International v. Zambia
Decision Date: May 5, 1999
The African Commission on Human and Peoples’ Rights held that Zambia violated the right to freedom of expression under Article 9.2 of the African Charter on Human and Peoples’ Rights by unlawfully deporting two prominent members of an opposition party. Shortly after their political party lost in the national elections, politicians William Steven Banda and John Lyson Chinula were served deportation orders on the ground that their continued presence would “likely to be a danger to peace and good order in Zambia” and were subsequently deported to Malawi. The Commission found that Zambia failed to justify these deportations and that they were, in fact, politically motivated. The Commission also held that Zambia violated the right to freedom from discrimination, the right to appeal before a competent organ, the right to freedom of conscience and association as well as the protection of the family enshrined in Articles 2, 7(1)(a), 8, 10, 18(1), and 18(2) of the African Charter, 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, Civility, and Censorship in Education
Josh Corngold in an article for the Oxford Research Encyclopedia of Education juxtaposes the two dominant philosophical traditions on academic freedom. The libertarian position according to Corngold, “rejects regulation of campus speech—except in extreme cases of speech that invade the rights of individuals or small specific groups of people—while instead championing a maximally free marketplace of ideas.” That perspective further finds that hate speech codes fail to adequately counter prejudice, discrimination, and inequality. By contrast, the liberal democratic position, “proposes that, in the interest of scholarly objectivity and rational autonomy, verbal interaction that denigrates or stigmatizes others on account of ascriptive characteristics such as gender, race, ethnicity, religion, or sexual orientation should be constrained in higher education.” The liberal position generally supports limited and narrow restrictions on extreme forms of speech, preferring to advocate for the advancement of “new ‘norms of civility.’” The article then explores other emerging perspectives on the debate.

Report on Access to Information in International Organizations
This report by the UN Special Rapporteur (SR) on the Promotion and Protection of the Right to Freedom of Opinion and Expression “provides an assessment of the state of access to information with regard to the activities of international organizations.” The SR observes that “the United Nations does not have an access-to-information policy that applies to every department and specialized agency; it does not even have ad hoc standards to provide a response to access-to-information requests.” Despite the introduction of access to information laws and policies across the globe, many international organizations have fallen behind acceptable standards. Hence the SR “urges all international organizations, especially the United Nations, to adopt robust freedom of information policies, ” and concludes with specific recommendations to organizations, Member States and civil society.

Post Scriptum

● The European Center for Press and Media Freedom (ECPMF) is hiring! Open positions include, Legal Assistant; Monitoring Officer; Press and Policy Officer and a Social and Multimedia Specialist. The deadline for applying is 21 September 2021. More information.

● The Media Law & Policy Scholars Conference 2022 is accepting abstracts. The conference will take place January 13 & 14, 2022 online and aims to provide advice and support for works-in-progress. They interpret media law and policy broadly, welcoming scholars from around the world who study free speech, free press, access to information, intellectual property, data privacy, emerging technologies and other related law and policy issues from a variety of theoretical perspectives and methodologies.

● Andressa Oliveira in an article for The Diplomat, “Should Social Media Companies Ban the Taliban?”, writes that the Taliban’s social media presence once again invites a debate on the repercussions of the technology industry’s role in world politics. The article outlines the different companies’ policies as well as varying perspectives on the question.

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