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 new UNESCO Guide for Amicus Curiae Interventions on Freedom of Expression Cases seeks to equip civil society organizations with the basic tools to file effective amicus curiae interventions, and encourage them to intervene in cases where freedom of expression standards can be advanced or where the right to freedom of expression or the safety of journalists is at stake. The Guide provides practical information on how to file amicus curiae briefs and sets out strategic considerations – as well as do’s and don’ts – with the goal of helping organizations write the most impactful brief possible. The Guide was authored by Peter Noorlander, Columbia Global Freedom of Expression expert, founding Legal Director and former CEO of Media Defence, and Senior Legal Officer at ARTICLE 19.

● Registration for Bread&Net 2021, the yearly unconference on digital rights in the Middle East and North Africa, hosted by SMEX, is now open. The event will be taking place online from the 24th to the 26th of November. The program will cover a wide range of topics around policy advocacy in the Arabic-speaking countries, digital tools for a safer, more accessible internet, and regional community efforts that counter digital rights violations by repressive governments and international corporations acting with impunity in our region. Take a look at this year’s themes and register to attend, here

● On October 7, The Dialogue: Leadership for the Americas hosted an event, “Debating the Facebook Oversight Board and Self-Regulation Mechanisms,” to discuss a new report, Content Moderation and Self-Regulation Mechanisms: The Facebook Oversight Board and its Implications for Latin America, authored by Edison Lanza and Matías Jackson. Moderated by Santiago Canton, director of the Peter D. Bell Rule of Law Program at the Inter-American Dialogue, panelists included Edison Lanza, Non-Resident Senior Fellow, Rule of Law Program, Inter-American Dialogue; Catalina Botero, Co-Chair, Facebook Oversight Board; Nicolás Comini, Public Policy Manager, Latin America, Facebook; Gustavo Gómez Executive Director, OBSERVACOM; and Mary Hansel, Acting Director, International Justice Clinic, University of California, Irvine School of Law. Video and more information available 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
Mouvement Raëlien Suisse v. Switzerland
Decision Date: July 13, 2012
The Grand Chamber of the European Court of Human Rights held by nine votes to eight that the ban by the Swiss authorities of the posters of an association did not constitute a violation of their right to freedom of expression and, unanimously, that it had not breached their right to freedom of religion, upholding the judgment by the First Section of the European Court. The applicant, Mouvement Raëlien Suisse, requested authorisation from the local authorities of the city of Neuchâtel to run a poster campaign featuring phrases such as “The Message from Extraterrestrials” and “Science at last replaces religion”, however, the local authorities denied such authorisation citing previous refusals on grounds of public order and immorality. The Court held that the Swiss authorities acted within their margin of appreciation and thus that there were no serious reasons to substitute the Federal Court Assessment with its own.

Bladet Tromso and Stensaas v. Norway
Decision Date: May 20, 1999
The Grand Chamber of the European Court of Human Rights found that the respondent state of Norway had breached the rights of the applicants – the publisher and editor of the newspaper Bladet Tromsø – under Article 10 of the European Convention on Human Rights by holding them guilty for defamation. This conviction for defamation followed the publication of a report and statement made by an inspector appointed by the Ministry of Fisheries, Mr. Lindberg, to inspect seal hunting. The report and the statement alleged that members of a seal hunting vessel, the Harmoni, had committed criminal acts and had been particularly cruel to seals. The Ministry of Fisheries impugned the authenticity of the report, and the crew of the Harmoni won a charge of defamation against Mr. Lindberg. They subsequently won a case of defamation against the applicants as well. The Court found that conviction of the applicants was an unjustified interference with their rights because the published statements and their report, taken in their context did not constitute sufficient reasons for an interference with the freedom of press. The applicants had acted in good faith in discharging their public watchdog function by reporting on a matter of public interest. They were further discharged from their duty of verifying the report issued by Mr. Lindberg because the nature and degree of defamation were not so serious, and the context of the issuance of the report (in the official capacity of a Ministry inspector) suggested a high degree of credibility.

Janowski v. Poland
Decision Date: January 21, 1999
The Grand Chamber of the European Court of Human Rights, by a majority of twelve judges, ruled that Poland had not violated Mr Jozef Janowski’s (“the applicant”) freedom of expression by criminally convicting him for insulting municipal guards by calling them “oafs” and “dumb”. Mr. Janowski, a journalist, intervened in an incident where municipal guards were ordering street vendors to leave a square (where selling was not allegedly authorized), by informing the guards that their actions had no legal basis and infringed vendors’ fundamental rights. The applicant was subsequently charged with having insulted municipal guards on duty. The Court found that there was no violation of Article 10 of the European Convention on Human Rights as the applicant insulted the guards in a public place, in front of a group of bystanders, while they were carrying out their duties. The actions of the guards did not warrant resort to offensive and abusive verbal attacks and therefore, the domestic courts had sufficient reasons for the conviction of the applicant.

Bowman v. The United Kingdom
Decision Date: February 19, 1998
The Grand Chamber of European Court of Human Rights, by the majority of 14 judges, ruled that the United Kingdom had violated the applicants’ freedom of expression by initiating criminal proceedings against her for the dissemination of 1.5 million leaflets during a political campaign. The applicant was against abortion and the leaflets contained information about the opinions on abortion of three candidates for election. She was charged with violating a UK election law enacted to preserve fair and democratic elections, which prohibited spending more than five pounds sterling on disseminating information to electors to promote or procure the election of a candidate in the period of four to six weeks before elections. The Court found the mere fact of initiating the criminal proceedings against the applicant interfered with her right to freedom of expression. Such interference was not proportionate since she only wanted to inform her fellow citizens about the opinions of the three candidates on abortion. Even though she had been able to spend more than 5 GBP in any other period except just before the elections (four to six weeks), the Court found that she would not have achieved the same effect during some other period.

Zana v. Turkey
Decision Date: November 25, 1997
The Grand Chamber of the European Court of Human Rights held that the conviction by the Turkish courts of a politician based on published comments in support of an illegal armed group, did not violate his freedom of expression rights under Article 10 of the European Convention on Human Rights.  Mr. Mehdi Zana (“the applicant”), a former mayor of the largest city in south-eastern Turkey, was accused of defending an act punishable by law as a serious crime, for his remarks supporting the Workers’ Party of Kurdistan made during an interview. The applicant was later sentenced to prison. The majority of the Grand Chamber held that, given the serious disturbances in south-east Turkey at the time when the applicant made the statements, the publication of his interview was likely to exacerbate an already explosive situation in Turkey. Consequently, the Court held that the conviction of the applicant answered a pressing social need and was proportionate to the legitimate aims pursued. Bearing in mind the State’s margin of appreciation, the Court held that there was no violation of the applicant’s right to freedom of expression under Article 10. However, two dissenting opinions found the interference disproportionate and not necessary in a democratic society.

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 “Sugary Drinks” decision rendered by the Constitutional Court of Colombia was the 2018 Global Freedom of Expression Prize winner in the category of Significant Decision. The Constitutional Court of Colombia found that prohibiting the NGO Educar Consumidores from broadcasting a commercial about the health risks of sugary drinks amounted to prior restraint. According to the decision, the prohibition violated the consumers’ right to receive information about the health risks of sugary drinks.

José Luis Castro, the President of the public health organization Vital Strategies that works with Educar Consumidores, declared that striking down the prohibition was “a victory for evidence-based, proven health policy over the commercial interests of the sugar-sweetened beverage industry. It’s a milestone in the protection of consumer rights, which we hope will reverberate across the wider region and around the world, wherever policy decisions on sugary drinks are under consideration.”

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.

Can the GDPR and Freedom of Expression Coexist?
In this article for the American Journal of International Law Nani Jansen Reventlow observes that “The General Data Protection Regulation (GDPR) imposes important transparency and accountability requirements on different actors who process personal data. This is great news for the protection of individual data privacy.” However, she asks what this means for freedom of expression and for journalism “given that ‘personal information and human stories are the raw material of journalism'”. The article argues that “although EU states seem to have taken their data protection obligations under the GDPR seriously, efforts to balance this against the right to freedom of expression have been more uneven” and concludes “that it is of key importance to ensure that the GDPR’s safeguards for data privacy do not compromise a free press.”

Reimagining Rights and Responsibilities in the United States: Freedom of Speech and Media
This report authored by John Shattuck and Mathias Risse is part of a Carr Center project on Reimagining Rights and Responsibilities in the United States. The authors begin by observing that in the digital world we “are confronted with threats both to the legal protection of free speech and to the social contract that supports a respectful free speech environment…As the traditional public square governed and protected by federal regulation moves online to spaces governed by private corporations, the rules for how speech is both expressed and censored are also changing.” The Report explores how legal protections should adapt to the new digital forums and includes chapters on “Polarization and Attacks on Speech,” “Social Media and Its Impact on the Information Ecosystem,” and “Recommendations.”

Post Scriptum

● TechDirt published an article “Social Media Regulation In African Countries Will Require More Than International Human Rights Law.” The article discusses the use of direct and indirect regulatory laws in Nigeria, Ethiopia and Uganda. It further compares such laws to their similar European counterparts such as “Germany’s Network Enforcement Act and France’s Online Hate Speech Law that directly place responsibilities on platforms and require them to remove online hate speech within a specific time and failure of which attracts heavy sanctions.”

● IFEX has published a round-up of news from Latin America, “Dancing in the dark, a culture of secrecy and a roadmap for digital human rights in Latin America.” Highlights include the launching of the Dialogue of the Americas on Internet Freedom of Expression by the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights which seeks to “address the challenges currently presented by digital technologies for the exercise of human rights in the region.” And Fundación para la Libertad de Prensa (FLIP) has affirmed in a recent statement that a “culture of secrecy” is prevalent in Colombian public bodies which it observes is the result of digitalization during the pandemic, where journalism has largely migrated to the virtual world, and digitalization has provided new tools and practices that have facilitated public opacity.

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