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

● ONLINE EVENT SAVE THE DATE: “The Recent Case of Jineth Bedoya Lima vs. Colombia: The Emblematic Case of International Law in the Fight Against Impunity for Crimes Against Female Journalists & its Global Impact.” Join Columbia Global Freedom of Expression on Monday, November 29 from 1:00-2:00 PM (ET) for an important discussion on the case of Jineth Bedoya vs. Colombia and the recent sentencing of the Inter-American Court of Human Rights. Speakers include Catalina Botero-Marino, Columbia Global Freedom of Expression; Jineth Bedoya Lima, Editor, EL TIEMPO; Jonathan Bock, Executive Director, Fundación para la Libertad de Prensa (FLIP); Viviana Krsticevic, Executive Director, Center For Justice & International Law (CEJIL); and Joel Simon, Executive Director, Committee to Protect Journalists (CPJ). More information and RSVP Iink coming soon.

● ONLINE EVENT SAVE THE DATE: “Anti-SLAPP Conference: Countering Legal Threats to Media Freedom.”  Join the Justice for Journalists Foundation (JFJ) and the Foreign Policy Centre (FPC) on Monday 22nd November and Tuesday 23rd November 2021 for an international discussion on the use of vexatious legal threats, often referred to as Strategic Lawsuits against Public Participation (SLAPP), which have proliferated globally in recent years. This two-day hybrid format conference will bring together experts from across the globe to delve into this topic and examine the impact it has on journalists, media freedom and wider society. To attend online, register through Eventbrite.

● Global Freedom of Expression partner Justitia has published a new report“A framework of first reference: Decoding a human rights approach to content moderation in the era of platformization.” The report recommends that major platforms formally commit to adopting an International Human Rights Law (IHRL) approach to content moderation by signing a voluntary Free Speech Framework Agreement (FSFA). Rather than requiring a harmonization of approaches, the FSFA would outline ways to develop terms that reflect IHRL norms, integrate IHRL into human and automated content moderation, and ensure transparency and accountability. While legally non-binding, Justitia proposes that the FSFA be facilitated and administered by the Office of the UN High Commissioner for Human Rights under the specific auspices of the Special Rapporteur for Freedom of Opinion and Expression.

● Columbia Global Freedom of Expression legal researcher, Giovanni De Gregorio, has written an article “How big tech is changing who’s in charge of our rights and freedoms.” The article discusses the rise of “digital-constitutionalism” where private companies are increasinly making rules shaping our daily lives in areas which traditionally have been governed by public authorities.  He observes that this raises important “constitutional questions about who has legitimacy, who should have power, and how democracy can best function in the digital age.”

Peter Noorlander, then Chief Executive Officer, Media Legal Defence Initiative; Steven Finizio, Partner, WilmerHale; Nani Jansen Reventlow, then Legal Director, Media Legal Defence Initiative; Catalina Botero, former Special Rapporteur for Freedom of Expression of the Organization of American States Inter-American Commission on Human Rights; Dr. Agnes Callamard, then Director, Columbia Global Freedom of Expression and Information; Lee C. Bollinger, President, Columbia University; Lydia Cacho, Journalist; Dario Milo, Partner, Webber Wentzel; Joel Simon, Executive Director, Committee to Protect Journalists, at the 2015 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.

The 2015 Global Freedom of Expression Prize in the category of Significant Legal Ruling recognized decisions of the Constitutional Court of Zimbabwe and the Constitutional Court of Turkey.

In Nevanji Madanhire and Nqaba Matshazi v. Attorney‐General, the Constitutional Court of Zimbabwe delivered a unanimous judgment striking down the offence of criminal defamation as unconstitutional, citing international, regional standards and Zimbabwean standards on freedom of expression. The decision was among a few judicial rulings rendered by African national courts at that time, which found that the criminalization of defamatory statements imposes serious restrictions on freedom of expression and access to public information.

In 2014 the Constitutional Court of Turkey rendered three bold judgments which expanded protection of online freedom of expression. The Court lifted bans on Twitter and YouTube as well as invalidated an Internet law that restricted access to the Internet, limiting the authority under which the government, in this case the Turkish Presidency of Telecommunication and Communication, could restrict access to social media.

Decisions this Week

In cooperation with UNESCO we will be publishing a series of analyses of important decisions relating to privacy and freedom of expression. Below are the case analyses published this week.

X v. YouTube
Decision Date: August 23, 2021
The High Court of Delhi upheld an actor’s right to privacy under Article 21 of the Indian Constitution and directed internet intermediaries as well as websites to take down the explicit videos of the actor which had been uploaded on to multiple video-sharing platforms without her consent. The actor sued the defendants after they failed to remove multiple explicit clips of her, which were originally filmed for the purposes of a potential lead role in a web series. While the producer of the videos took down his footage soon after the actor complained, the defendants did not – which the actor argued was in breach of her right to be forgotten and, more broadly, her right to privacy. While the actor may have consented to the shooting, the Court found her consent to have since been expressly withdrawn, as the producer of the series had also removed the videos upon her request. Although the Court was conscious that there is no statutory right to be forgotten, it ultimately held that the actor’s right to privacy deserved protection. This was especially so following the clear and immediate effect on, and irreparable harm to, her personal and professional life, when the videos depicting her in a sexual nature had been circulated against her will.

United States
Patel v. Facebook
Decision Date: August 8, 2019
The United States Court of Appeals for the Ninth Circuit held that facial-recognition technology used to create face templates without prior consent invades individuals’ interests and privacy. In 2010, Facebook started using facial-recognition technology to develop its Tag Suggestions feature without the users’ prior written consent and without a retention schedule of the biometric information. Three Facebook users in Illinois filed a complaint in 2015, alleging that Facebook´s facial-recognition technology violated the Illinois Biometric Information Privacy Act. The Court affirmed the decision of the United States District Court for the Northern District of California, confirming that Facebook´s facial-recognition technology affected users’ privacy and personal affairs, and noted the impact technological advances may have on privacy.

South Africa
NM v. Smith
Decision Date: April 4, 2007
The Constitutional Court of South Africa ruled that the disclosure of private and confidential medical information in a book without the full and informed consent from the individuals was an infringement of their right to privacy. Three women living with HIV, who had participated in an HIV clinical drug trial and whose names had been published in an official academic report related to the trials, learnt that their names and HIV status had been published in a biography about a politician without their consent. The women approached the High Court, arguing that this publication infringed their rights to privacy, dignity and psychological integrity. The High Court held that there had been no infringement of the rights and the Supreme Court of Appeal declined the hear their appeal. The Constitutional Court found that there was no need to develop the common law around privacy violations to include liability for negligence as the author of the book had acted with sufficient intention in publishing the women’s private facts as she had not taken the necessary steps to determine whether the women had consented to their identities being made public. The minority judgment stressed the need to balance the rights to privacy and to freedom of expression, and would have held that the common law should be developed, and that – given her position as a member of the media – the author had acted reasonably in relying on information provided in an official academic report.

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.

Online Disinformation and Political Discourse: Applying a Human Rights Framework
This research paper written by Kate Jones and published by Chatham House explores the norms underlying human rights frameworks and how they can be applied to corporate and social responses to online interference with elections and political discourse. Accordingly,  “Chapter 2 of this paper clarifies terms and concepts discussed. Chapter 3 provides an overview of cyber activities that may influence voters. Chapter 4 summarizes a range of responses by states, the EU and digital platforms themselves. Chapter 5 discusses relevant human rights law, with specific reference to: the right to freedom of thought, and the right to hold opinions without interference; the right to privacy; the right to freedom of expression; and the right to participate in public affairs and vote. Chapter 6 offers some conclusions, and sets out recommendations on how human rights ought to guide state and corporate responses.”

Platform Regulations: How Platforms are Regulated and How They Regulate Us
“This book is the Official 2017 Outcome of the UN IGF Dynamic Coalition on Platform Responsibility (DCPR), which is a multistakeholder group fostering a cooperative analysis of online platforms’ responsibility to respect human rights, while putting forward solutions to protect platform-users’ rights. This book offers responses to the DCPR’s call for multistakeholder dialogue, made ever more pressing by the diverse and raising challenges generated by the platformisation of our economy and, more generally, our society. The analyses featured in this book critically explore the human rights dimension of the digital platform debate, subsequently focusing on the governance of personal data and, lastly, suggesting new solutions for the new roles played by online platforms. This volume includes the Recommendations on Terms of Service and Human Rights, which were elaborated through a multistakeholder participatory process, facilitated by the DCPR. In accordance with the UN Guiding Principles on Business and Human Rights, the Recommendations provide guidance for terms of service that may deemed as ‘responsible’ due to their respect of internationally agreed human rights standards.”

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.