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 Facebook Oversight Board’s recent decision (2021-09), affirming the restoration of a shared Al Jazeera news story about a potential threat of violence from a designated dangerous organization, reflects two recommendations made by U.N. Special Rapporteur Irene Khan. Khan’s public comment called for greater transparency in how Facebook responds to all government requests, including extralegal requests and an independent public investigation into Facebook’s content moderation practices in Arabic and Hebrew to determine and correct possible biases. This aligns with the Special Rapporteur’s other recommendation to undertake meaningful consultation with potentially affected groups and other stakeholders, and identify appropriate follow-up action that mitigates or prevents these impacts including through human rights impact assessments. The Special Rapporteur further called for Facebook’s list of designated Dangerous Individuals and Organisations to be published, and said Facebook should put in place due process standards empowering users to understand how assessments are made and appeal decisions regarding the inclusion of individuals or organisations.

● The Knight First Amendment Institute has launched a series of public conversations titled “Lies and the Law” exploring what the law can and should do about the problem of lies and deception in the contemporary mass public sphere. The first Roundtable, Lies and Democracy: Political lies, American democracy, and the “Big Lie” will explore how unique this kind of political lie – the belief that the 2020 Presidential Election was stolen from Donald Trump – is in the United States, what it reveals about American democracy and how much of a threat lies pose to the democratic order? Friday, September 24, 2021, 1-2:30 PM EDT. RSVP here to participate online.

● ARTICLE 19 has a post contrasting two recent contradictory rulings from the European Court of Human Rights involving freedom of expression and terrorism, in which they also intervened. In Üçdağ v. Turkey, the Court found a violation of the right to freedom of expression regarding a criminal conviction of an imam for “disseminating propaganda in support of a terrorist organisation” based on two Facebook posts. In Z.B. v. France the Court found the conviction of Z.B. for “glorification of wilful killing” in relation to a satirical t-shirt was “relevant” and “sufficient” in light of the context surrounding the facts of the case.

● The Secretariat of the Internet & Jurisdiction Policy Network released its 2020 Progress Report which presents how stakeholders in the Policy Network have advanced policy solutions. It includes findings of two Regional Conferences held in partnership with the United Nations Economic Commission for Latin America and the Caribbean and the African Union Commission. Also featured are 15 outcomes that can be used by all categories of decision-makers when developing, evaluating, and implementing policies around cross-border access to e-evidence, content moderation and restrictions as well as Domain Name System (DNS) level action to address abuses.

Decisions this Week

The Case of Newspaper Alfa v. Social Cooperative Beta
Decision Date: December 2, 2020
The Civil Court of Appeal of Milan upheld the decision of the Court of First Instance of Milan that had found a right-wing newspaper responsible for defaming a social cooperative. After the publication of an article alleging that organizations were enriched through the trafficking of people of color, one of the organizations approached the Court, seeking a declaration that the newspaper’s conduct was defamatory and damages. The Court held that the article created the false impression in its readers that the organizations were acting unlawfully and, as it harmed the organisation’s honor, was therefore defamatory and not a lawful exercise of the right to freedom of expression.

Administrator of Bayern Souverän v. Facebook Ireland Ltd.
Decision Date: January 7, 2020
The Higher Regional Court in Munich, Germany held that Facebook must observe the right to freedom of expression when deleting or blocking a post or profile. An individual’s Facebook posts and profiles were blocked after Facebook determined that they violated its Community Standards, and he approached the courts for their restoration. After the lower court ordered the restoration, the Higher Regional Court agreed that Facebook did not have a non-reviewable discretion whether it deletes or blocks content and that it was bound by the requirements of the right to freedom of expression under article 5 of the German Basic Law. The Court held that Facebook may not remove or sanction a user’s expression of opinion which is permissible under the freedom of expression, but found that as one of the posts in question did constitute hate speech and so was not protected by the right to freedom of expression Facebook was entitled to remove that post.

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

Inter-American Court of Human Rights
Lagos del Campo v. Peru
Decision Date: August 31, 2017
The Inter-American Court found a violation of a union organizer’s freedom of expression after he was fired for criticizing his employer in a magazine article. Alfredo Lagos del Campo brought the case after an appellate court found his dismissal “lawful and justified” for harming the reputation of the company he worked for by alleging management interference into the union’s election process. The Court observed that the statements were of public interest and therefore enjoyed enhanced protection. Mr. Lagos del Campo was interviewed in his capacity as the leader of a labor union and his comments related to the role of the employer and public officials in alleged irregularities in the process of electing the members of a body representing and defending the rights and interests of workers. As such they did not exceed the scope of protection of freedom of expression, nor did they did have a manifestly defamatory, libelous or malicious purpose against the company or any particular individual.

González Medina v. Dominican Republic
Decision Date: February 27, 2012
The Inter-American Court of Human Rights declared the Dominican State responsible for the forced disappearance of Mr. González Medina and the resulting violations of the rights to personal liberty, personal integrity, life and juridical personality to his detriment. The Court also declared violation of the rights to a fair trial, judicial protection and personal integrity to the detriment of his family. The lawyer, professor and journalist González Medina was forcibly disappeared only days after publishing an opinion piece and giving a speech at the Universidad Autónoma de Santo Domingo where he denounced corruption and electoral fraud in the elections in which the then President Joaquín Balaguer was re-elected. The Court emphasized that when the purpose of the violation of the rights to life, and to personal liberty or integrity is to impede the exercise of another right such as freedom of expression, this constitutes an autonomous violation of those rights. However, in the case in question, the Court declared itself incompetent ratione temporis to hear the alleged violation of freedom of expression as an autonomous violation since the beginning of the disappearance was prior to the acceptance of the Court’s jurisdiction by the Dominican Republic.

Apitz Barbera v. Venezuela
Decision Date: August 5, 2008
The Inter-American Court of Human Rights declared the State of Venezuela responsible for violations of the right to a fair trial enshrined in Article 8 of the American Convention on Human Rights to the detriment of Juan Carlos Apitz Barbera, Perkins Rocha Contreras and Ana María Ruggeri Cova. The victims in this case were removed as judges of the Corte Primera de lo Contencioso Administrativo (First Court of Administrative Disputes) on the grounds that they had “committed an inexcusable judicial error when they granted a precautionary amparo (protection of constitutional rights) that suspended the effects of an administrative act which denied a request for registration of a property sale”. Their removal was ordered by the Commission for the Functioning and Restructuring of the Judicial System, a provisional disciplinary body created by the State during a constitutional transition process. In considering the arguments raised regarding lack of independence and, in particular, the alleged causal relationship between various statements made by the President and senior government officials and the resulting disciplinary process and subsequent removal of the judges, the Court referred to certain restrictions to which State authorities are subject in the exercise of their freedom of expression to prevent the violation of fundamental rights or judicial independence.

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.

The Non–First Amendment Law of Freedom of Speech
Genevieve Lakier in this article for the Harvard Law Review observes that while the First Amendment dominates debate about freedom of speech in the United States, a rich body of local, state, and federal laws also protect expressive freedom, the rights of the institutional press, and democratic values in ways the First Amendment does not. The Article “explores the history and present-day operation of this non–First Amendment body of free speech law” in order to shape “our understanding of both the past and the present of the American free speech tradition.” It further “reveals that there was more legal protection for speech in the nineteenth century than scholars have assumed. It also makes evident that the contemporary system of free expression is much more majoritarian, and much more pluralist in its conception of what freedom of speech means and requires, than what we commonly assume.”

Competing Free Speech Values in an Age of Protest
Erica Goldberg in this article for the Cardozo Law Review “endeavors to catalog and resolve cases involving competing free speech values, and then applies its solutions to violent and disruptive protests.” She observes that “[a]lmost every First Amendment case can be framed as implicating free speech values on both sides of the First Amendment equation. Government action directly abridges speech, but government inaction may allow private parties too much control over others’ speech. First Amendment doctrine, which generally protects speech only from suppression by state actors, can thus compromise the very free speech values that form the rationales for the First Amendment.” Further, “[s]cholars and litigants have argued that government regulation of speech, to preserve free speech values, is necessary in areas ranging from campaign finance, to access to media resources, to bigoted speech. This Article argues that strict adherence to a formal state action doctrine should resolve most, but not all, clashes between free speech doctrine and values.”

Post Scriptum

● The latest issue of Jigsaw’s series The Current explores the complex problem of internet shutdowns. In the first half of 2021, for instance, Access Now reported 50 internet shutdowns in 21 countries, disruptions which  “interfere with freedom of opinion and expression, access to information, and freedom of assembly. During crises, like armed conflict or the COVID-19 pandemic of the last year, shutdowns further cut individuals off from life-saving information.” The issue presents personal perspectives on shutdowns as well as countermeasures taken by academics, technologists and NGOs, to create new systems to document and verify shutdowns.

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