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.

● Irene Khan, the first woman to hold the role of UN Special Rapporteur on freedom of opinion and expression, has dedicated her latest report to the UN General Assembly to the topic of gender justice and freedom of expression. The report exposes appalling levels of gendered censorship against women, combining discriminatory laws, policies and practices with sexism, misogyny and social and cultural norms based on patriarchal values. The Special Rapporteur affirms the need to push for gender equality to realise the right to freedom of opinion and expression for all, noting that gender equality and freedom of expression are mutually reinforcing, indivisible, and interdependent. The Special Rapporteur concludes with specific recommendations to States, the international community and companies to create an enabling environment and safe digital space for women’s equal enjoyment of freedom of opinion and expression.

● UNESCO has launched its new Global Toolkit for Judicial Actors on International Legal Standards on Freedom of Expression, Access to Information and Safety of Journalists, which provides a global overview of the theoretical and practical understanding of key issues related to the right to freedom of expression, and its contemporary legal challenges, especially in the digital age. The Toolkit follows a global Massive Open Online Course (MOOC) for judicial actors on international standards on freedom of expression, developed in partnership with the Bonavero Institute of Human Rights at the University of Oxford, which gathered close to 5,000 registered participants from 150 countries around the world. Read more

In addition UNESCO has produced two video explainers, available in the 6 UN official languages and Portuguese, about the ICCPR’s Three-Part Test and the Rabat Plan of Action on the Prohibition of Incitement to Hatred.

● Edison Lanza, former Special Rapporteur for Freedom of Expression at the Inter-American Commission on Human Rights, and Matias Jackson, Global Freedom of Expression Legal Researcher, have published a new report “The Facebook Oversight Board and its Implications for Latin America,” (Also available in Spanish). The report provides an overview of how the Board operates, its recent decisions, and its application of international human rights law, with special emphasis on its impact on freedom of expression in Latin America. The report also discusses the different perspectives and challenges observed by experts and civil society regarding this model of a self-regulation mechanism. It further considers the potential impact the Board and other non-state mechanisms could have on local judicial decisions and on the legal discussions taking place in the region around content regulation on digital platforms. Specifically, it notes the need for dialogue between the region and the Inter-American Human Rights System on the issue.

● In recognition of the International Day for Universal Access to Information on 28 September, IFEX produced a special edition of their Africa Brief podcast on this year’s theme, the importance of ATI laws for building strong institutions. Two leading experts from the IFEX network — Gilbert Sendugwa (Africa Freedom of Information Centre) and Lamin Jahateh (Gambia Press Union) discuss why ATI laws, and the Right to Information more broadly, are a critical underpinning for human rights worldwide.

Nominations for the 2022 Global Freedom of Expression Prizes are now open and for the next six weeks we will highlight the inspiring work of past winners.

The European Roma Rights Center (ERRC) was the 2018 Global Freedom of Expression Prize winner in the category of Excellence in Legal Services for two interventions made before the European Court of Human Rights relating to racism against Roma and freedom of expression. In the case of Magyar Jeti Zrt. v Hungary, the ERRC challenged the European Court to view the defamation case through the eyes of a Romani man who used his freedom of expression to link individual racist acts with hate speech propagated by political actors. In Lacatus v. Switzerland , the ERRC argued that anti-begging laws are tainted by antigypsyism and that such laws do not merely silence the poor, but specifically aim to silence Roma. You can find more about their story here

Decisions this Week

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
Baka v. Hungary
Decision Date: June 23, 2016
The Grand Chamber of the European Court of Human Rights held that Hungary had violated the right to freedom of expression of the President of Hungary’s Supreme Court by terminating his contract after he spoke publicly about judicial reforms. After legislation was adopted which changed the structure of the Hungarian courts and lowered judges’ retirement age the judge criticized the reforms in a series of public letters and in speeches before Parliament. The Court held that the termination of the judge’s contract was directly linked to the expression of his views and therefore constituted an interference with his rights. It stressed that the Council of Europe obligates judges to promote and protect judicial independence, and that the judge’s comments “fell within the context of a debate on matters of great public interest [and] called for a high degree of protection for his freedom of expression and strict scrutiny of any interference”.

Centro Europa 7 S.R.L. v. Italy
Decision Date: June 7, 2012
The Grand Chamber of the European Court of Human Rights held that Italian legislative measures which had the effect of excluding an audio-visual broadcaster from accessing broadcasting frequencies was a violation of the right to freedom of expression. After a company had been awarded a license to transmit programs it was ten years before it was allocated a frequency on which to broadcast. The Italian courts awarded damages to the broadcaster, but the company brought an application to the Court, arguing that the compensation it had received was insufficient. The Court held that the Italian government had breached the broadcaster’s legitimate expectations and prevented it from pursuing its economic activities for more than ten years, and that the legislative framework was vague and imprecise and the interference in the broadcaster’s right to freedom of expression was not justified.

Gerger v. Turkey
Decision Date: July 8, 1999
The Grand Chamber of the European Court of Human Rights ruled that the conviction of a journalist for writing a speech critical of the government was a violation of Article 10 of the European Convention on Human Rights by Turkey. The Government accused the applicant of promoting separatism and he was convicted under the Prevention of Terrorism Act. The Court found that this conviction was adequately prescribed by law and pursued the legitimate aim of protecting national security and public order. However, it still violated Article 10 because it was unnecessary. The applicant had engaged in political speech which was specially protected and critical to holding a democratic government in check. He had also in no way incited violence through words or context. Furthermore, a disproportionate sentence was handed down to the applicant, particularly considering that due to a change in domestic law, he was sentenced twice for the same offence. The Court further found a violation of the Article 6 right to a fair trial because the National Security Court which convicted the applicant had a military judge on the bench, which impugned the impartiality and independence of the bench.

Sürek v. Turkey (No. 1)
Decision Date: July 8, 1999
The Grand Chamber of the European Court of Human Rights found no violation of a publisher’s freedom of expression for disseminating separatist propaganda. Kamil Tekin Sürek, a majority shareholder of a weekly review in Istanbul, was convicted under the Prevention of Terrorism Act 1991 for publishing two letters submitted by readers which contained political speech criticizing the Turkish government and promoted the cause of a Kurdish rebel movement. The Court based its reasoning on the adequate prescription by law of the conviction, its pursuance of the legitimate aims of protection of national security, territorial integrity and public order in Turkey in light of the violent separatist movement in the south-east, and necessity in a democratic society. The measures were found necessary mainly because the letters had used inflammatory language intended to incite hostilities, they had been published in a sensitive security context, and the letters had named persons responsible for atrocities, thus endangering them. The Court found that the owner was vicariously responsible for their publication because as a partial owner he should have had editorial control over the direction of the review. Therefore, the Court held that the Article 10 rights of the applicant had not been violated. However, three partially dissenting opinions would have found a violation of Article 10 on the grounds that there was insufficient evidence of incitement and it was inconsistent with previous rulings.

Grigoriades v. Greece
Decision Date: November 25, 1997
The Grand Chamber of the European Court of Human Rights held, by twelve votes to eight, that the conviction of an Army officer of the crime of insult based on a letter to a superior officer had violated the right to freedom of expression enshrined in Article 10 of the European Convention on Human Rights. Mr. Grigoriades was a conscripted probationary reserve officer who had completed his contracted time in the army, but due to a disciplinary penalty, was ordered to serve additional time in the military. In response, he sent a letter to his superior stating he would not return to the army on the grounds that it was “an apparatus opposed to man and society” and further the army was “a criminal and terrorist apparatus”. He was subsequently tried for desertion and insult of the army but the national courts only convicted him for insult. The Court found that the applicant did not insult anyone specifically and his remarks in the letter were made within the context of a general and lengthy discourse critical of the army as an institution. Moreover, he neither published the letter, nor disseminated it. Thus, there was a violation of the applicant’s right to expression under Article 10.

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 Artificial Intelligence Technologies and Implications for Freedom of Expression and the Information Environment.
This report authored by the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (David Kaye) “examines the impact AI has on the information environment, and proposes a human rights framework for the design and use of technologies comprising AI by states and private actors.” In particular, “it tries to do three things: define key terms essential to a human rights discussion about AI; identify the human rights legal framework relevant to AI; and present some preliminary recommendations to ensure that, as the technologies comprising AI evolve, human rights considerations are baked into that process.”

Social Media and its Intersections with Free Speech, Freedom of Information and Privacy: An Analysis
This article by Francisco Segado-Boj and Jesús Díaz-Campo focuses on three intersections of social media and fundamental freedoms: free speech, freedom of information and privacy. They begin by analyzing social networking sites and social media’s evolution and current role in society, while highlighting the positive changes and opportunities they offer. However, their primary “objective is to identify malpractices related to social media and fundamental freedoms.” They present a literature review to identify those malpractices and highlight a variety of issues, such as arbitrary censorship, boundaries of free speech, misinformation, diversity of sources, visions and views, user content and privacy settings, and data profiling. They conclude with proposed solutions for the key challenges.

Post Scriptum

● Job Posting: Postdoc Humor and Free Speech Regulation. The University of Groningen in the Netherlands is offering a 36-month postdoc position (full time, 1.0 FTE) within the project “Forensic Humor Analysis: Rethinking Offensive Humor and Its Legal Regulation”, funded by the Dutch Research Council (NWO) with a five-year Vidi grant (Principal Investigator: Dr Alberto Godioli, University of Groningen). The project aims to establish forensic humor analysis as a new line of interdisciplinary research, using insights from humanities-based humor research in order to tackle the interpretive issues faced by national and international courts when regulating offensive humor. The appointed candidate will have a strong interest in interdisciplinary legal research, and an expertise in free speech regulation, with particular regard to the European context. Deadline: Thursday 4 November 11:59 pm / Friday 5 November 2021 Dutch local time (CET)

● CitizenLab’s report “Engrave Danger: An Analysis of Apple Engraving Censorship across Six Regions,” found that within mainland China, “Apple censors political content including broad references to Chinese leadership and China’s political system, names of dissidents and independent news organizations, and general terms relating to religions, democracy, and human rights.” They further found that Apple’s content moderation practices are inconsistently applied to derogatory, racist, or sexual content across all six regions and “that Apple’s public-facing documents failed to explain how it derives their keyword lists.”

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