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.
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Community Highlights and Recent News
● In a piece for Tech Policy Press, “Indonesia’s Intermediary Regulation Imperils Internet Freedom,” Michael Caster (Asia Digital Program Manager at ARTICLE 19) argues that Indonesia should immediately revoke a new law called “MR5” which requires all “Private Electronic Systems Operators,” such as social media platforms, to register with the government which provides the authorities with “direct access to user data and the contents of communications, and establishes excessive penalties for noncompliance.” Caster outlines the six most problematic aspects of the proposed regulation and the applicable international human rights standards and concludes “that by introducing such a strict liability model in Indonesia, the regulation would strike a blow to internet freedom in the country and arguably risks inspiring copycat legislation elsewhere in Southeast Asia.” Read the full legal analysis.
● SFLC.in is hosting a two-part panel discussion for the launch of its new report “Political Mythology and Technical Reality: Decrypting the Encryption Debate in India.” The two panels, “Is the Right to Encrypt, a part of Right to Privacy” and “Privacy V. Security, A flawed Perspective” bring together technologists, academics, cryptographers, policy representatives, and government officials from across the globe to discuss the state of encryption in India and worldwide. October 19 and October 20 at 6PM IST/ 8:30AM EST. Register or learn more here.
● Columbia Global Reports is hosting an online event “Vanishing Freedom in China and Beyond at the Hands of Technology” where Columbia political science professor Andrew J. Nathan will speak with author Darren Byler about his new book In The Camps. The book exposes the high-tech system of facial surveillance, voice recognition, and smartphone tracking technology, built by private corporations and used by the Chinese government, to monitor its minority populations. The panel will discuss what high-tech tracking technology means for convicting people of “pre-crimes,” surveillance, and freedom. October 19 from 6:00 – 7:00 PM EDT.
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
Magyar Kétfarkú Kutya Párt v. Hungary
Decision Date: January 20, 2020
The Grand Chamber of the European Court of Human Rights found that Hungary violated Article 10 of the Convention by imposing a fine on a political party for creating an app that allowed users to anonymously share a photograph of their paper referendum ballots. A political party which was critical of the holding of the referendum had developed an app which allowed voters to take and anonymously share pictures of their ballots or, if they were not participating in the referendum, to upload a picture of the activity they were doing instead. The Court stated that the app was a legitimate form of speech and that while the Government may limit the right to freedom of expression, its interference must be prescribed by law, and held that the legal basis for prohibiting the app and fining the party was not precise or sufficiently foreseeable and was therefore not a justifiable limitation of the right. The Court emphasized political parties’ importance to political plurality in democracies and stated that “restrictions on their freedom of expression therefore have to be made the subject of a rigorous supervision.”
Rekvényi v. Hungary
Decision Date: May 20, 1999
The Grand Chamber of the European Court of Human Rights found that the Hungarian prohibition on members of the police forces to join political parties was not a violation of Articles 10 and 11 of the European Convention on Human Rights. Mr. Rekvényi was a police officer and the Secretary General of the Police Independent Trade Union. The Union filed a constitutional complaint against an amendment to the Constitution of Hungary that prohibited members of the armed forces, the police, and security services from joining a political party or engaging in political activities. It claimed that the law was an unjustified interference with his rights to freedom of expression and association. The complaint was dismissed by the Constitutional Court and an application was filed by Mr. Rekvényi to the European Commission of Human Rights and was referred to the European Court thereafter. The Court determined that there was no violation of Articles 10 and 11, basing its reasoning on the relatively recent Hungarian experience with a non-democratic regime, in which police forces were in the service of the ruling political party.
Polat v. Turkey
Decision Date: July 8, 1999
The Grand Chamber of the European Court of Human Rights ruled that the right to freedom of expression under Article 10 of the European Convention on Human Rights of a Turkish writer had been violated by the State of Turkey when he was prosecuted and convicted under the Prevention of Terrorism Act for disseminating separatist propaganda and publishing a book that described historical events relating to the Kurdish rebel movement in Turkey. While the Court found that the conviction was prescribed by law and pursued the legitimate aim of protecting the national security and public order of Turkey, the writer’s imprisonment and payment of a fine was ultimately considered disproportionate and unnecessary by the Court. This was because the applicant had engaged in political expression which had heightened protection under the Convention. Furthermore, the applicant had not incited violence, and the effect of his speech was also likely to be limited because of his status as a private individual and the dissemination of his speech through a book – and not in mass media. Finally, the penalties imposed on him were considered disproportionate.
Ceylan v. Turkey
Decision Date: July 8, 1999
The Grand Chamber of the European Court of Human Rights held that the State of Turkey had violated Article 10 for convicting Mr. Ceylan under the Criminal Code for “non-public incitement to hatred and hostility” after he published an article on the Kurdish separatist movement. The conviction was found to be sufficiently prescribed by law, and in pursuance of the legitimate aims of national security, territorial integrity, and public order. However, it was considered not necessary in a democratic society because the applicant had engaged in political speech in a political position – as a trade union leader – which deserved heightened protection. He had not incited any violence or hostility, and as a result of his conviction, had lost his position as leader and several civil and political rights. Thus, the Court found his conviction and sentencing disproportionate and awarded him non-pecuniary damages.
Okçuoğlu v. Turkey
Decision Date: July 8, 1999
The Grand Chamber of the European Court of Human Rights held that Turkey had violated Article 10 of the European Convention on Human Rights for convicting a lawyer for the dissemination of separatist propaganda based on comments he had made during a round-table discussion that was subsequently covered by a magazine. The Court held that although the conviction was prescribed by law and pursued the legitimate aim of protecting national security, territorial integrity, public order, and national unity, it was not a necessary interference with his rights in a democratic society. This was because political speech deserved heightened protection, and the press had an essential role of keeping the public informed. Taking into consideration the specific context of the case, the Court found that the applicant’s comments, although not neutral, did not amount to incitements to violence. Further, the magazine in which they had been published had a low circulation, limiting the potential impact. Moreover, the punishment meted out to the applicant – a prison term along with a fine that was later increased – was disproportionate. The Court also held that the applicant’s rights under Article 6 were violated because the tribunal which convicted him had a military judge on the bench which impeached its impartiality and independence; there was the credible fear that extraneous considerations would unduly influence the bench.
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.
Freedom of Speech as a Right to Know
Tao Huang in this article for the University of Cincinnati Law Review seeks to explore the theoretical underpinnings between the right to freedom of expression and the right to know. Huang argues that freedom of speech should be interpreted as a right to know, observing that the “relationship between the two rights is not unidirectional: not only could the freedom of speech form the basis for the right to know, but also the right to know could enrich the doctrine of the freedom of speech. The characteristics of the right to know could make the freedom of speech more direct, more practical, and more enforceable.” Through reformulating the relationship between the related rights, the constitutionalization of the right to know could emerge. Huang concludes that this “reformulated right will better respond to the age we are in where speech is information, information is power, and the liberty of speech is the freedom and control of information.”
Intellectual Freedom and Freedom of Speech: Three Theoretical Perspectives
Shannon M. Oltmann in this article for Information Science Faculty Publications argues that “[f]reedom of speech encompasses not only a right to express oneself but also a right to access information.” The article focuses on the role of libraries in expanding access to information. Specifically, the article observes that access to information through libraries “draws upon the three predominant jurisprudential theories of freedom of speech: the marketplace of ideas, democratic ideals, and individual autonomy. In this article, each of these theories is explained and then applied to the library context, creating a starting place for further investigation and application of these judicial theories to information access.”
Post Scriptum
● The Jurist reports that a tech group backed by the Australian units of Facebook, Google, and Twitter have announced the establishment of an independent oversight board, the Digital Industry Group Inc. (DIGI), to monitor the implementation of The Australian Code of Practice on Disinformation and Misinformation. The DIGI will receive and resolve complaints relating to alleged breaches of the self-regulatory code. According to the article, civil society organizations caution that the DIGI is largely a response to threats by the government to crackdown on the dissemination of defamatory material.
This newsletter is reproduced with the permission of Global Freedom of Expression. For an archive of previous newsletters, see here.
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