Global Freedom of Expression, Columbia University: Newsletter, w/e 5 November 2021

● In recognition of the International Day to End Impunity for Crimes Against Journalists on November 2nd, Annie Game, IFEX’s Executive Director, published an article “Stalking the messenger: Ending impunity for illegal surveillance” which focuses on the use of illegal surveillance as a tactic that threatens journalists’ safety, and draws attention to how impunity creates the conditions under which it continues to thrive. She argues that illegal surveillance not only puts sources at risk and paralyses the work of journalists, but it also has a devastating personal impact on its targets. The article is available in English, Spanish, French and Arabic.

● Pakistan Press Foundation published two reports on the International Day to End Impunity which documented negative trends of ongoing physical attacks against journalists and state level attempts to restrict online expression due to a culture of impunity. The first report, “Online harassment of the media in Pakistan 2021” focuses on attacks against the media with women journalists in particular being subjected to online harassment for their work. The second, “Report on Attacks on Media in Pakistan January-October 2021” found that freedom of expression was under threat across all media in Pakistan during 2021.

● Columbia Global Centers | Istanbul, in partnership with the International Press Institute Turkey National Committee are hosting an online panel titled “The Digital Media Conundrum: Can Journalism Save Democracy in the Age of Disinformation?” to shed light on fake news, digital echo chambers, and the impact of disinformation laws on fundamental rights and freedoms. Panelists will discuss a new disinformation bill to be introduced in Turkish Parliament and draw comparisons between how disinformation laws are used under democratic and authoritarian regimes around the world. November 11, 2021. 6:00 pm Istanbul/ 4:00pm Vienna / 10:00am New York. Register here.

● Inforrm’s Blog published a piece by Tony Roberts which summarizes a recent study he co-authored comparing surveillance laws in six African countries. The study found that despite constitutional and international covenant protections for privacy, “governments are using laws that lack clarity, or ignoring laws completely, to carry out illegal surveillance of their citizens.” The authors identify six factors which are “eroding” surveillance laws and contributing to a lack of transparency and oversight. They recommend the establishment of an independent oversight body and the “use of strategic litigation to challenge existing laws and actions that violate constitutionally guaranteed rights.”

Decisions this Week

The Gambia v. Facebook
Decision Date: September 22, 2021
The US District Court for the District of Columbia held that Facebook must disclose materials relating to the incitement of ethnic hatred against Muslim-minority Rohingyas in Myanmar. In November, 2019, the Republic of the Gambia had initiated proceedings against Myanmar claiming breach of its obligations under international law on account of its ill treatment of the Rohingya minority. The International Court of Justice, in January 2020, declared provisional measures requiring Myanmar to prevent the commission of genocidal acts against the Rohingya Muslims. Given Facebook’s role as the main platform for online news in Myanmar at that time, The Gambia filed a discovery request in the US District Court for the District of Columbia to uncover public and private communications as well as documents concerning the content that Facebook had deleted following the genocide. The Court granted The Gambia’s request for de-platformed content and internal investigation documents, determining that Facebook’s deleted content was not subject to the non-disclosure rule of the Stored Communications Act and that, pages or posts erstwhile accessible to the public prior to the deletion by Facebook were within the ambit of the statutory exception to the non-disclosure rule.

Jeremy Lee v Superior Wood
Decision Date: May 1, 2019
The Australian Fair Work Commission held that the refusal to give sensitive personal information to an employer cannot be a valid reason for termination of employment. An employee had refused to consent to the use of biometric data through fingerprint scanning for attendance monitoring at his work place and was dismissed when the new system was introduced. The employee had noted his concerns around the use of the scanners and the data and the lack of a guarantee that the data would be securely stored and not shared with third-parties.  He brought an application for unfair dismissal to the Fair Work Commission, and a single Commissioner initially held that the dismissal was fair. On appeal, the Commission emphasized that the employees have a right to protect their sensitive personal information under the country’s Privacy Act, 1988, and held that the employers’ lack of a privacy collection notice and a privacy policy was unlawful. The Commission held that it was not “reasonably necessary” for the employer to have introduced the biometric scanners.

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.

Kyprianou v. Cyprus
Decision Date: December 15, 2005
The Grand Chamber of the European Court of Human Rights held Cyprus responsible for violating the European Convention on Human Rights after convicting a lawyer for contempt of court. The lawyer was sentenced to five days’ imprisonment after a court found that his cross-examination of a witness was contemptuous. After challenging the conviction in the domestic courts, the lawyer approached the European Court, which held that the conviction was disproportionate. The Court emphasized that the sanction would have a ‘chilling effect, not only on the particular lawyer concerned but on the profession of lawyers as a whole” and violated not only the lawyer’s right to freedom of expression but the client’s right to a fair trial [para. 175].

Roche v. United Kingdom
Decision Date: October 19, 2005
The European Court of Human Rights found that the failure to maintain an effective and accessible procedure for accessing medical records in the United Kingdom military was a violation of the right to receive information in terms of the right to a private life. After a former solider began suffering health problems he sought access to records to determine whether the tests for chemical weapons he had undergone during his period in the army impacted on his current health issues. Following repeated denials and piecemeal disclosure by the Ministry of Defence the former solider approached the Court. Although the Court declined to find an infringement of the right to freedom of expression as that right does not impose a positive obligation on States to “disseminate information of its own motion”, it did hold that the failure to disclose the information had a sufficient impact on the former soldier’s ability to understand the causes of his health conditions that his right to a private and family life was infringed.

Pedersen v. Denmark
Decision Date: December 17, 2004
The Grand Chamber of the European Court of Human Rights found that the criminal conviction for defamation of two Danish journalists for alleging in television programs that a police chief superintendent tampered with evidence in a murder case was proportionate to the legitimate aim of protecting others’ reputation and rights. The two journalists had produced two documentaries questioning whether the conviction of an individual for killing his wife was correct and whether the police had tampered with evidence. The murder conviction was later overturned following an inquiry which recommended a retrial but did not find any evidence of police evidence tampering. The Court held that the defamation conviction was necessary in a democratic society as the journalists had no factual basis on which to basis their allegations. The Court held that the documentaries threatened the chief superintendent’s right to be presumed innocent until proven guilty

Vidar Stromme, Chairman, SCHJODT Law Firm, at the 2016 Awards 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.

The 2016 Global Freedom of Expression Prize in the category of Significant Legal Ruling recognized the Supreme Court of Norway for Rolfsen and Association of Norwegian Editors v. the Norwegian Prosecution Authority. In this case, the Supreme Court of Norway found unanimously for broad protection against exposure of journalistic sources even in the context of a government anti-terror investigation. In contrast to the widespread international tendency to sacrifice freedom of expression in times of crisis, this ruling recognizes the crucial importance of a free press. Vidar Stromme, Chairman, SCHJODT Law Firm, who represented the Association of Norwegian Editors and intervened in the case, spoke about the ruling at the award ceremony.

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.

Global Conference for Media Freedom: Freedom of the Media and Artificial Intelligence
This paper by Julia Haas of the Office of the OSCE Representative on Freedom of the Media addresses how the use of artificial intelligence (AI) affects freedom of expression and media freedom. She argues for a for a human rights approach to the design and deployment of AI to mitigate “how biases both in datasets and of human developers may risk perpetuating existing inequality.” Haas further discusses how AI affects legacy media and how the COVID-19 pandemic has aggravated restrictions on human rights. The paper concludes with policy recommendations to ensure States and the private sector employ AI with transparency and accountability.

The Fight against Disinformation and the Right to Freedom of Expression
This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the Committee on Civil Liberties, Justice and Home Affairs “aims at finding the balance between regulatory measures to tackle disinformation and the protection of freedom of expression. It explores the European legal framework and analyses the roles of all stakeholders in the information landscape. The study offers recommendations to reform the attention-based, data-driven information landscape and regulate platforms’ rights and duties relating to content moderation.”

Post Scriptum

● Global Freedom of Expression partners Jacob Mchangama and Natalie Alkiviadou have published an article “Hate Speech and the European Court of Human Rights: Whatever Happened to the Right to Offend, Shock or Disturb?” in the Human Rights Law Review. The article observes that since the landmark European Court of Human Rights case Handyside v. The United Kingdom, which found that the European Convention protects expression which may “offend, shock or disturb,” the European Court has “developed a substantial body of inconsistent case-law allowing restrictions on ‘hate speech’ that severely questions the degree to which offensive, shocking and disturbing speech is truly protected by the ECHR. Against a qualitative and quantitative backdrop, the authors argue that the Court and previously the Commission, have adopted an overly restrictive approach to hate speech, which fails to provide adequate protection to political speech on controversial issues, including criticism of public officials and government institutions and has created an inconsistent and even arbitrary body of case law.” Please note the article is not open access.

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