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

● In case you missed Global Freedom of Expression’s event with the World Leaders Forum, “Courts and Global Norms on Freedom of Expression”, the video is now available on YouTube in EnglishSpanish and Portuguese. Two expert panels brought together distinguished justices from around the world for a forward-looking analysis of the challenges and opportunities for national and regional courts in protecting freedom of expression. The two sessions aimed to analyze the application of global norms, with the goal of contributing to the expansion of a global understanding of the scopes and limits of this fundamental right in the digital sphere.

● ARTICLE 19 has issued a new policy to address the excessive market power of large social media platforms. Among the key recommendations is that independent regulators implement pro-competitive measures to diversify the market, specifically the “unbundling” of hosting and content-curation activities by the large platforms to allow users options for curation services which comply with international human rights standards. ARTICLE 19 argues that such approaches “can be used to achieve open, fair, and decentralised digital markets where freedom of expression and other human rights are adequately protected, and where no single entity – private or public – can control the flow of information in society.”

● The Knight First Amendment Institute has published a blog, “The Worrying Expansion of the Social Media Surveillance-Industrial Complex” which discusses the emergence of “public-private surveillance partnerships” between government agencies and law enforcement and private companies which sell tools and services to analyze vast amounts of data on citizens. Knight has filed two Freedom of Information Act requests to gather details on these activities which threaten “to undermine our freedom of speech and association online, as well as our privacy.”

Decisions this Week

In cooperation with UNESCO, Columbia Global Freedom of Expression 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.

Saket v. Union of India
Decision Date: November 5, 2020
The High Court of Bombay held that the Ministry of Information and Broadcasting should not have uploaded the personal details of the applicant to its government website following his lodging of an information request under the Right to Information Act, 2005. In this case, the applicant’s personal data (including his name, home address, email address and telephone/mobile number) had been uploaded onto the Indian government website, which caused him immense trauma and public harassment. The Court found that the Ministry’s decision to upload his personal details was unnecessary and made the applicant vulnerable to intimidation and other harassment by the public. Further, the Court held that such disclosure of confidential data was not only a clear breach of the applicant’s privacy, but also defeated the purpose of the Right to Information Act, 2005 by deterring future applicants from filing applications due to fear of public disclosure of sensitive information.

The Case of Journalist v. Winckler Ortiz
Decision Date: March 29, 2019
The Supreme Court of Justice of Mexico held that the Twitter account of an attorney general was public information and, therefore, blocking its access to a journalist was illegal. Mr. Jorge Winckler Ortiz, who worked as the General Prosecutor of the State of Veracruz, had blocked from his Twitter account (@AbogadoWinckler) a journalist who filed for constitutional protection (Amparo) to get access to the account. Even though the defendant had created the account before he took the position in the office, it was being used for professional purposes. The Court held that the defendant willingly decided to put himself in a public position and be subject to public scrutiny so his privacy sphere was limited. In balancing privacy and access to information, the Court granted strengthened protection to the latter and held that the attorney general should permit the journalist access to the account.

Pavolotzki, Claudio et. al v. Fischer Argentina S.A.
Decision Date: July 10, 2015
The Tribunal of Work Appeals of Buenos Aires held that the mandate of a company to install a tracking application in its traveling businesspersons’ phones was unjustified and arbitrary, as it constituted an intrusion into the intimacy and privacy of workers. Software provided by the company tracked the exact GPS location of employees for 24 hours, even before and after the workday. The Court concluded that the measure taken by the employer did not comply with the reasonability and necessity principles of the labor contract act or data protection regulations. According to the Court, the company failed to provide a reasonable explanation for the measure and did not give workers sufficient information on how the information was going to be processed. The Court pointed out that the mobile devices were not restricted to professional activities since the service costs were paid by the salesmen and could be used for personal purposes.

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.

Fighting Misinformation and Defending Free Expression during COVID-19: Recommendations for States
This paper by AccessNow makes “recommendations for protecting freedom of expression and opinion and the right to impart and receive information to enable governments​ to fight the COVID-19 health crisis in a rights-respecting manner.” The paper has chapters on “Inadequate Access to Information,” “Disproportionate Criminal Measures To Combat Covid-19 Misinformation,” and the “Rise Of Hate Speech Against Certain Groups.” The paper posits that restrictive laws and policies enacted during the early emergency phase of the pandemic may be difficult to roll back once the crisis recedes, thus threatening fundamental rights in the future.

Freedom of Expression during COVID-19
This report by the Law Library of Congress “surveys legal acts regulating mass media and their ability to distribute information freely during the Covid-19 pandemic. The report focuses on recently introduced amendments to national legislation aimed at establishing different control measures over the media outlets, internet resources, and journalists in 20 selected countries around the world where adoption of such laws has been identified, namely: Armenia, Azerbaijan, Bangladesh, Belarus, El Salvador, India, Kazakhstan, Kenya, Kyrgyzstan, Mauritius, Moldova, Nepal, Nicaragua, Pakistan, Russia, South Africa, Sri Lanka, Tajikistan, Ukraine, and Uzbekistan.”

Post Scriptum

● Jurist reports that Rohingya refugees in the US and UK have filed a coordinated lawsuit against Meta Platforms, Inc. in a California Superior Court alleging that “Facebook designed its system and the underlying algorithms ‘in a manner that rewarded users for posting, and thereby encouraged and trained them to post, increasingly extreme and outrageous hate speech, misinformation, and conspiracy theories attacking particular groups,’” which fueled the genocide of the Rohingya in Myanmar. According to the article, the cause of action in the claim includes “product liability and negligence, and specifically addresses the following questions of law: whether Facebook (i.e. the product) contains design defects that harmed Rohingya Muslims, and if so, whether Facebook is strictly liable for them; whether Facebook owed a duty of care to the Rohingya when entering the Myanmar market; whether Facebook breached that duty through its method of operation in Myanmar; and whether such operations caused harm to the Rohingya.”

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