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.

Community Highlights and Recent News

● The Inter-American Court of Human Rights handed down a landmark ruling in the case of journalist Jineth Bedoya Lima against Colombia, in which the Court recognized sexual violence not only as a form of torture but also a tactic intended to “punish, intimidate and silence” a female journalist for her reporting. According to the Foundation for Press Freedom (FLIP) in Colombia, the “Court found that the attacks against the journalist not only violated her freedom of expression at the individual level, but also had a collective impact, both on Colombian society in its right to information and on other people who practiced journalism.” Further, the Court determined that there was “serious, precise and consistent evidence of State involvement in the acts of physical, sexual and psychological torture against the journalist,” and hence the State has an “obligation to investigate, prosecute and punish all those responsible for the crimes committed against the journalist.” Read FLIP’s statement and summary of the ruling here.

● The 2020 EngelliWeb Report, “Fahrenheit 5651: The Scorching Effect of Censorship,” written by Global Freedom of Expression Expert Yaman Akdeniz and Ozan Güven is now available in English. The report discusses amendments made to Turkish Law No. 5651 during 2020 which have significantly broadened the scope of content regulation by the government and hence its abuse. According to the Report, access to 467,011 websites were blocked from Turkey by the end of 2020 with a total of 408,808 separate orders issued by 764 separate institutions including criminal judgeships of peace and other authorised public institutions. The report further observes that “[w]hile the Constitutional Court has issued nearly 38 separate judgments on Internet and access blocking practices, including its Wikipedia platform related judgment, the principle-based approach of the Constitutional Court had no positive effect on the access-blocking orders that continued to be issued by criminal judgeships of peace.” The Press Release with a summary of the findings and the full report are available here.

● Columbia Global Freedom of Expression partner Natalie Alkiviadou of The Future of Free Speech and Uladzislau Belavusau have authored a paper, “Rien que des mots: Counteracting homophobic speech in European and U.S. law,” which provides a comparative perspective drawing on case law from the European Court of Human Rights and broader legal frameworks within the Council of Europe, the Court of Justice of the European Union as well as the United States Supreme Court. The article concludes that the concepts of hate speech (in constitutional, administrative and criminal settings), direct discrimination, and harassment (in labour and anti-discrimination law) will be central in the strategic litigation of LGBT organizations seeking to redress the climate of homophobia via various legal avenues in both Europe and the U.S.

Please note the newsletter will be back November 4, after a short break.

Kerem Altiparmak, Director of Human Rights Centre, Faculty of Political Sciences, Ankara University and Yaman Akdeniz, Professor of Law, Istanbul Bilgi University at the 2016 Award Ceremony. Photo Credit: Eileen Barroso / Columbia University

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

Professor Yaman Akdeniz, Assistant Professor Kerem Altiparmak and Attorney at Law Serkan Cengiz were the 2016 Global Freedom of Expression Prize winners in the category of Excellence in Legal Services for the European Court of Human Rights Case of Cengiz and Others v. Turkey.  They brought a successful action before the European Court challenging an order of the Ankara Criminal Court of the First Instance blocking access to YouTube, arguing that banning access to entire websites amounts to censorship in contravention of Article 10 of the European Convention on Human Rights. Cengiz, Akdeniz, and Altiparmak persuaded the European Court to recognize that victims of this kind of censorship include individuals, who can legitimately claim that their right to receive and impart information and ideas, have been affected even if they are not directly targeted, establishing broad user rights for further legal challenges.

Decisions this Week

European Court of Human Rights
Milosavljević v. Serbia
Decision Date: May 25, 2021
The European Court of Human Rights dismissed an Article 10 complaint by a journalist who had been subject to an adverse defamation judgment in respect of an article accusing a local public official of trying to rape an underage Romani girl. The domestic courts had rule against the applicant because of the publication of inaccurate statements of fact. The European Court found that there had been an interference with the journalist’s freedom of expression but that it was prescribed by law and pursued a legitimate aim, namely the “protection of the reputation or rights of others”.  In deciding whether the interference was “necessary in a democratic society” the Court had to balance the privacy rights of the public official protected by Article 8 with freedom of expression rights of the journalist protected by Article 10. Despite the issue reported in the article being in the public interest, the Court concluded that the domestic courts had struck an appropriate balance as the allegations were of a serious and sensitive nature and the journalist had not provided accurate and reliable information.

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.

Sanoma Uitgevers B.V. v. The Netherlands
Decision Date: September 14, 2010
The Grand Chamber of the European Court of Human Rights unanimously held that the order issued to a magazine by the public prosecutor of Amsterdam to hand over photographs was a violation of the journalists’ rights to protect their sources. This case was the final judgment in a case referred to the Grand Chamber by the Third Section of the ECtHR which on 31 March 2009 had found that the applicant’s rights under Article 10 of the ECHR had not been violated. The Grand Chamber held that orders to disclose sources should be met with procedural safeguards, including the guarantee of review by an impartial decision-making body or judge with the power to assess whether a requirement in the public interest overrides the principle of protection of journalistic sources and thus prevent unnecessary access to information that could disclose sources’ identity.

Verein Gegen Tierfabriken Schweiz (Vgt) v. Switzerland (No.2)
Decision Date: June 30, 2009
The Grand Chamber of the European Court of Human Rights held that Switzerland had violated an organization’s right to freedom of expression by failing to ensure a commercial on animal protection was aired on television. The case has previously come before the Court, which had held that there was a violation of the right as the refusal to air the commercial was not “necessary in a democratic society”. After the organization was still unable to air the commercial, it approached the domestic courts, seeking a reopening of the proceedings to ensure compliance with the Court’s order. The Court held that Switzerland had failed to fulfill its positive obligations to deploy available resources to allow the broadcast of the television commercial.

Lindon and others v. France
Decision Date: October 22, 2007
The Grand Chamber of the European Court of Human Rights held that the conviction for defamation against the author and publisher of a novel as well as the conviction of the publication director of a daily newspaper who cited in extenso the passages found to be defamatory by the French authorities did not constitute a violation to their right to freedom of expression. The novel in question, “Jean-Marie Le Pen on Trial”, portrayed a specific image of the French politician Jean-Marie Le Pen, his party, and their conduct, which could potentially harm their reputation and honour. The Court found that the interference of the three applicants’ right to freedom of expression was necessary in a democratic society to protect the rights and reputation of Le Pen and the Front National.

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 and Accountability: A Transatlantic Framework for Moderating Speech Online
This report by The Transatlantic High Level Working Group on Content Moderation Online and Freedom of Expression seeks to offer policy recommendations to counter hate speech, disinformation and violent extremism. They propose a regulatory framework which includes, “(1) transparency rules for platform activities, operations, and products; (2) an accountability regime holding platforms to their promises and transparency obligations; (3) a three-tier disclosure structure to enable the regulator, vetted researchers, and the public to judge performance; (4) independent redress mechanisms such as social media councils and e-courts to mitigate the impact of moderation on freedom of expression; and (5) an ABC framework for dealing with disinformation that addresses actors and behavior before content.”

What Can Be Done? Digital Media Policy Options for Strengthening European Democracy
This report, published by the Reuters Institute at the University of Oxford was co-authored by
Rasmus Kleis Nielsen, Robert Gorwa, and Madeleine de Cock Buning. The report provides policy prescriptions for how to foster an “enabling environment” for independent media in the digital age, not only in Europe but potentially in democracies globally. They identify three key policy areas in light of the current challenges: 1) protection of journalists and media from threats to their independence and to freedom of expression; 2) establish a level playing field and support for a sustainable business of news; and 3) be forward thinking to account for the digital, mobile, and platform-dominated future.

Post Scriptum

●  In a piece for Tech Policy Press“’Fake News,’ Meet Fake Censorship” Matt Bailey, PEN America’s digital freedom program director discuses the new trend in content moderation laws drawing on examples from Texas, Florida and Brazil. The laws are purportedly to counter censorship by platforms, but in effect give the authority to “those with political power [to] arbitrate what can be said and to open up the spigots of disinformation, trolling, and abuse.” Bailey observes the result “concentrate[s] power over speech in order to make it more susceptible to politics and less accountable to the public.”

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