Global Freedom of Expression, Columbia University: Newsletter, w/e 12 November 2021

● The Knight First Amendment Institute has published a blog, “City of Austin v. Reagan National Advertising: Proposing a More Nuanced Test for Identifying Content-Based Laws,” where Scott Wilkens discusses how a pending US Supreme Court case involving a city sign code may influence the government’s ability to protect free speech online. The US Supreme Court will soon consider a “sweeping interpretation” of the established Reed test for determining whether a law is considered content-neutral or content-based, key for interpreting its constitutionality. The Knight Institute has submitted an amicus brief proposing a new test including a “set of questions all designed to answer the question of whether the law reflects an effort by the government to suppress speech based on its content or to distort public discourse,” which could help set a new standard needed in the digital age.

●  The Internet Policy Review has published a paper “The perils of legally defining disinformation,” by Ronan Ó Fathaigh, Natali Helberger, and Naomi Appelman, of the Institute for Information Law, University of Amsterdam, Netherlands. The authors begin by observing that “EU policy considers disinformation to be harmful content, rather than illegal content,” while “EU member states have recently been making disinformation illegal.”  Considering that context, the “article discusses the definitions that form the basis of EU disinformation policy, and analyses national legislation in EU member states applicable to the definitions of disinformation, in light of freedom of expression and the proposed Digital Services Act.” It further explores “the perils of defining disinformation in EU legislation, and including provisions on online platforms being required to remove illegal content, which may end up being applicable to overbroad national laws criminalising false news and false information.”

● IFEX joined numerous other organisations in strongly recommending the maintenance of the option of remote participation in all debates, including open-ended General Debates and dialogues of the UN Human Rights Council (HRC), regardless of COVID-19 measures. The joint statement noted that the special emergency measures, ongoing budget constraints and measures adopted to respond to the COVID-19 crisis, have heavily restricted civil society participation at the HRC. They urge the HRC at their upcoming Organisational Session on 6 December 2021 “to prioritize inclusiveness and expertise over expediency by ensuring that civil society is broadly and effectively consulted.” They further call on all States “to ensure that civil society participation is promoted and safeguarded at the HRC as a crucial part of its work.”

Nani Jansen Reventlow, then Legal Director, Media Legal Defence Initiative; Peter Noorlander, then Chief Executive Officer, Media Legal Defence Initiative; Lee C. Bollinger, President, Columbia University; Dr. Agnes Callamard, then Director, Columbia Global Freedom of Expression; Lydia Cacho, Journalist; Catalina Botero, former Special Rapporteur for Freedom of Expression of the Organization of American States Inter-American Commission on Human Rights. Photo Credit: Eileen Barroso / Columbia University

The 2015 Global Freedom of Expression Award in the Category of Excellence in Legal Services went to Media Defense (MLDI) for their pleadings to the African Court on Human and Peoples’ Rights in the case of Lohé Issa Konaté v. Burkina Faso. MLDI Legal Director (at that time) Nani Jansen Reventlow’s arguments, delivered with John Jones QC and Steven Finizio, persuaded the Court to deliver a groundbreaking judgment holding that the imprisonment of a journalist for defamation, and the use of criminal law against journalists generally violate the right to freedom of expression. This was the African Court’s first free‐speech case. The ruling represents a high‐water mark for freedom of expression in Africa.

Decisions this Week

R v. Jarvis
Decision Date: February 14, 2019
The Supreme Court of Canada convicted a teacher for voyeurism for secretly recording his students in common areas of a school. This offence is committed when a person secretly observes or makes a visual recording of another person with a sexual purpose where the person being observed or recorded has a reasonable expectation of privacy. The Court concluded that the teacher acted contrary to the reasonable expectations of privacy when he recorded the students’ breasts, faces and upper bodies with a pen camera while they engaged in school activities. The Court held that people do have a reasonable expectation of privacy in public spaces, such as school grounds, and that where a person “does not expect complete privacy [this] does not mean that she waives all reasonable expectations of privacy”.

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
Perna v. Italy
Decision Date: May 6, 2003
The Grand Chamber of the European Court of Human Rights held that the conviction for defamation and imposition of a fine against an Italian journalist for implying that a Public Prosecutor was not objective did not violate the right to freedom of expression. The journalist had described the prosecutor as a “communist militant” and accused him of paying an informer, and after the prosecutor filed defamation charges the Italian courts found the journalist guilty. The Court held that the conviction and sanction was not disproportionate and was a necessary interference of the journalist’s right to freedom of expression.

Cyprus v. Turkey
Decision Date: May 10, 2001
The Grand Chamber of European Court of Human Rights held that Turkey had violated the rights to freedom of expression of residents of northern Cyprus by censoring schoolbooks in the unrecognized territory of the Turkish Republic of Northern Cyprus. Cyprus brought numerous applications to international bodies, seeking declarations that Turkey had violated rights protected in the European Convention on Human Rights through their military operations and occupation of the region. The Court rejected the arguments that the right to freedom of expression was infringed by Turkey’s failure to provide information to relatives of missing persons, finding that this conduct was sufficiently addressed through a finding of the violation of other rights, and held that there was insufficient evidence of broad censorship of books and restrictions on access to Greek-language newspapers. However, the censorship of schoolbooks included the censorship of topics relevant to Cypriot history and culture, and did constitute a violation of the right to freedom of expression.

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.

Working Group on Infodemics: Policy Framework
This report proposes a range of structural solutions to the “information chaos” through a multi-lateral approach involving states and civil society. It is based on “more than 100 contributions from international experts and offers 250 recommendations on how to rein in a phenomenon that threatens democracies and human rights, including the right to health.” The Working Group aims to offer building blocks for regulation of the digital space based on democratic principles. The report presents twelve main recommendations grouped into four broad categories: “1.) public regulation is needed to impose transparency requirements on online service providers; 2.) a new model of meta-regulation with regards to content moderation is required; 3.) new approaches to the design of platforms have to be initiated; 4.) safeguards.”

Balancing Act: Countering Digital Disinformation While Respecting Freedom of Expression
This Broadband Commission research report, edited by Kalina Bontcheva and Julie Posetti, focuses on how States, companies, institutions and organisations around the world are responding to the proliferation of false or misleading content and the resulting harms. The report includes “a novel typology of 11 responses, making holistic sense of the disinformation crisis on an international scale, including during COVID-19. It also provides a 23-step tool developed to assess disinformation responses, including their impact on freedom of expression. The research concludes that disinformation cannot be addressed in the absence of freedom of expression concerns, and it explains why actions to combat disinformation should support, and not violate, this right. It also underlines that access to reliable and trustworthy information, such as that produced by critical independent journalism, is a counter to disinformation.”

Post Scriptum

● Interested in an Exciting Career as an International Human Rights Lawyer? The Centre for Law and Democracy is looking for a successful, highly motivated person to begin working as a Legal Officer with them in Halifax, Canada starting in January 2022 or shortly thereafter. The Legal Officer will have a range of responsibilities related to safeguarding human rights, with a focus on freedom of expression, the right to information, the freedoms of association and assembly and the right to participate. The position combines top-level legal analysis and standard setting research with on-the-ground campaigning across the Global South, in collaboration with a diverse range of activists, partners and subject matter experts. See the full Legal Officer Job Description.

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