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.

● Save the date! On October 21, 2021 Columbia Global Freedom of Expression, together with the World Leaders Forum, will be hosting an online conference featuring two panel discussions with prominent Justices from High, Constitutional and International Courts to exchange their views and experiences on the application of global norms when deciding upon freedom of expression related cases, with a focus on digital rights. Session I, from 9:00–10:30 a.m. (EDT), will discuss the application of international legal standards and comparative law practices in deciding upon freedom of expression cases. Session II, from 10:30 a.m.–12:00 p.m. (EDT), will discuss the challenges for judicial protection of freedom of expression in the digital sphere. Review the agenda and register here.

● The Future of Free Speech Project, a Global Freedom of Expression partner, is hosting a session titled “How fast should illegal content be taken down:  A rights-based approach” at the Fundamental Rights Forum 2021which addresses human rights challenges facing the EU. The panellists (tentative) for the session are Paul Nemitz (European Commission), Siobhan Cumminskey (Facebook), Dr. Krisztina Rosgonyi (University of Vienna), Eliska Pirkova (Access Now) and Raghav Mendiratta (Moderator – Future of Free Speech project). The session is scheduled for October 12, 11:30 – 12:30 hours CET and online registrations are now open.

● Fifty civil society organisations including Panoptykon, European Digital Rights, Amnesty International, Article 19, European Partnership for Democracy and Electronic Frontier Foundation have called on the members of the European Parliament’s internal market and consumer protection committee to empower users and ensure effective oversight of algorithms in their amendments to the DSA. In particular, they call for greater transparency of algorithms due to the growing evidence of their use in profiling users and the harmful consequences on privacy.

Decisions this Week

United States
Tah v. Global Witness Publishing
Decision Date: March 19, 2021
The United States Court of Appeals for the District of Columbia Circuit dismissed a defamation claim by two Liberian public figures against an international human rights organization. The organization had published a report in which they alleged that the public figures had received bribes for an oil deal. The majority of the Court held that there was no evidence of actual malice on the part of the organization – a necessary condition when a defamation case is brought by a public figure. The dissent called for an “overruling” of the New York Times v. Sullivan case which had introduced the requirement of actual malice, stating that it was a “threat to American Democracy”.

Kantamaneni v. State of Andhra Pradesh
Decision Date: August 26, 2020
The High Court of Andhra Pradesh quashed a criminal complaint against a journalist for publishing a false statement on the grounds that the filing of the complaint was an abuse of process of law. The State of Andhra Pradesh had made a complaint that the journalist had published a statement in an audio clip which was likely to create feelings of hatred between different groups, was a false alarm, constituted criminal intimidation and amounted to disobeying a public servant’s order. After the police filed the complaint, the journalist approached the Court seeking a declaration that the complaint was illegal and violated his rights to equality, freedom of expression and life and personal liberty. The Court dismissed all the charges, finding that there was no evidence to sustain the complaints. It characterized the police action as “overenthusiasm … to please the political party in power” and held that the registration of the offence was illegal and an infringement of the journalist’s rights.

Over the next few weeks Columbia Global Freedom of Expression will be completing its collection of all relevant decisions from the Grand Chamber of the European Court of Human Rights. The following were published this week.

European Court of Human Rights
Arslan v. Turkey
Decision Date: July 8, 1999
The Grand Chamber in the European Court of Human Rights found that the conviction of Mr. Arslan (“applicant”), author of ‘History in Mourning, 33 bullets’, for publishing a book which contained criticism of the Turkish government’s actions violated his right under Article 10 of the European Convention on Human Rights. The applicant was first convicted in 1991 on grounds that his book encouraged separatism and incited violence. With the passing of a new law, his conviction was invalidated. Shortly thereafter, his book was republished, and he was charged again under different criminal provisions for propaganda against the unity of the state. The applicant was convicted, and his appeals were unsuccessful. On complaint to the European Commission, it was held that his conviction amounted to a form of censorship and was violative of his Article 10 rights. On reference to the Grand Chamber, the applicant’s conviction was considered a breach of his rights under Article 10 of the Convention. The Court noted the importance of political speech in a democratic society and the limited reach of the book because of its mode of publication, and concluded that the tone did not incite violence. Furthermore, the penalties against the applicant were considered particularly severe seeing as he was convicted twice. Thus, the conviction was found to be an unnecessary interference in a democratic society.

Incal v. Turkey
Decision Date: June 9, 1998
The Grand Chamber in the European Court of Human Rights (“ECtHR”) found that the conviction of Mr. Incal, for participating in the preparation of a political leaflet containing criticism of the Turkish government’s actions against Kurdish street traders and stall keepers violated his right under Article 10 (freedom of expression) and 6 (right to an independent and impartial tribunal) of the European Convention on Human Rights. The applicant, as a member of the executive committee of the Izmir section of the People’s Labor Party, had decided to distribute pamphlets criticizing measures by local authorities which affected the rights of Kurdish people. However, Mr. Incal and the members of the executive committee were accused of inciting hatred and hostility through use of racist words and charged under domestic terrorism laws. After the domestic court found the applicant guilty as charged, the applicant applied to the ECtHR. The Court noted that freedom of expression is particularly important for political parties and their active members since they represent their electorate, draw attention to their preoccupations and defend their interests. It did not discern anything which warranted the conclusion that Mr. Incal was responsible for the problems of terrorism in Turkey, and more specifically in Izmir. In conclusion, the applicant’s conviction was held to be disproportionate to the aim pursued, and therefore unnecessary in a democratic society.

Vogt v. Germany
Decision Date: September 26, 1995
The Grand Chamber of the European Court of Human Rights held by 10 votes to 9 that a school teacher’s dismissal from the civil service due to her political activities on behalf of the German Communist Party (“DKP”) had breached Article 10 and Article 11 of the European Convention on Human Rights. Mrs. Vogt was an active member of the DKP and even stood as the DKP candidate in elections after she had been appointed as a permanent public servant and was teaching at a public secondary school. She was dismissed from her position on the ground that her political activities were in violation of a law that banned employment of extremists in the civil service and hence she failed to comply with her duty of political loyalty. The Grand Chamber found that while her dismissal was a lawful interference with her freedom of expression and served a legitimate aim, it was disproportionate to that aim. The Court observed that there was no evidence that Mrs. Vogt herself, even outside her work at school, actually made anti-constitutional statements or personally adopted an anti-constitutional stance. The Court found a violation of Article 11 as well, by treating the interference with the applicant’s right to free association in the light of Article 10, as a subset of the interference with her right to freedom of expression.

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.

Journalism, ‘Fake News’ & Disinformation: Handbook for Journalism Education and Training 
This handbook by UNESCO is designed to give practicing journalists, “journalism educators and trainers, along with students of journalism, a framework and lessons to help navigate the issues associated with ‘fake news’. It draws together the input of leading international journalism educators, researchers and thinkers who are helping to update journalism method and practice to deal with the challenges of misinformation and disinformation. The lessons are contextual, theoretical and in the case of online verification, extremely practical. Used together as a course, or independently, they can help refresh existing teaching modules or create new offerings.” The Handbook seeks to  “help societies become more informed about the range of societal responses to disinformation problems, including those by governments, international organisations, human rights defenders, Internet companies, and proponents of media and information literacy.”

Freedom of Expression and Media in Transition: Studies and Reflections in the Digital Age 
This UNESCO publication , in cooperation with Nordicom, aims “to contribute to knowledge development in the field as well as to global and regional discussions about freedom of expression, press freedom and the role of journalists, and communication rights in contemporary societies – in an era of globalization and digitization.” Although the research is based predominantly on the Nordic Countries, several of the studies are based on collaborative research with scholars from other parts of the world. The publication includes twenty two essays in four sections: 1) Rethinking the Nordic Media Model: A Challenge to Democracy; 2) In Transition: Freedom of Expression, Media and the Public Sphere; 3) Threats to Freedom of the Press: Control, Surveillance and Censorship; and 4) Reporting War and Conflict: Safety and Civil Rights.

Post Scriptum

● In a new article in the Journal of Free Speech Law“Silicon Valley’s Speech: Technology Giants and the Deregulatory First Amendment,” Alan Z. Rozenshtein writes that tech companies are facing unprecedented calls for regulation across a wide range of policy areas. The article argues that “First Amendment doctrine must sharply distinguish between arguments made on behalf of the First Amendment rights of users, which should be embraced, and those made on behalf of the companies themselves, which should be credited only if they advance the First Amendment interests of society, not merely those of the companies themselves.” It refers to the “recently enacted Florida law limiting social-media content moderation as a case study for how courts and other legal actors can determine what degree of First Amendment protections is appropriate for Silicon Valley’s speech.”

● In case you missed it, a full video recording of the Brennen Center for Justice’s program “Guns vs. Speech: Does the 2nd Amendment Threaten the 1st?” is now available on YouTube. 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. Panelists Dr. Mary Anne Franks, Darrell A.H. Miller, Eugene Volokh, and Eric Ruben, addressed 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?

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