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

● Dirk Voorhoof, writing for Inforrm’s Blog, discusses a trio of recent criminal defamation suits from Belgium in “Anti-SLAPP: Professor goes free after vexatious and frivolous suit.” The three cases were brought by leaders of anti-vax organizations against a virologist, a journalist and an academic for critical comments made during interviews and on social media. While Courts in two cases found no defamation, only the third recognized a counterclaim for vexatious and frivolous litigation – aka Strategic Litigation Against Public Participation or SLAPPs. These cases are part of an overall rise in SLAPPs in Europe which the European Commission is seeking to address. Voorhoof observes that in Belgium, part of the problem is that defamation is still in the Criminal Code which is out of step with established ECtHR case law finding that criminal prosecution for defamation is contrary to Article 10 ECHR. Voorhoof concludes with measures that Belgian authorities can and should take against SLAPPs.

● RFE/RL reports that Russia’s Supreme Court “has ordered the closure of Memorial International, one of the country’s oldest and most respected human rights organizations, capping a year of what critics called the state’s systematic dismantling of the country’s civil society.” Further documenting a crackdown on fundamental rights over the past year, RFE/RL has launched a video “Repression, Exile, And A Nobel Prize: 2021 Was A Tough Year For Russian Media.” The video features interviews with two independent journalists, Roman Badanin and Roman Dobrokhotov, both forced in to exile in 2021 due to the widespread abuse of the Foreign Agents Law and other draconian legislation to silence journalists through fines, jail-terms and FSB raids to seize computers and equipment. The list of “foreign agents” has grown from 17 to 103 in recent months. Neither journalist is optimistic about the ability of independent media to operate in Russia without dramatic political change.

● Balkan Insight reports that the “Kosovo Supreme Court has ordered a retrial for Ivan Todosijevic, an MP of the Belgrade-backed Srpska Lista, who was sentenced to two years of imprisonment for inciting ethnic, racial or religious intolerance.” In 2019 Todosijevic made comments at a public ceremony alleging that a 1999 massacre of 45 Kosovo Albanians, which lead to NATO’s intervention, was made up as a cover for crimes committed by Albanians. His sentencing was affirmed by the Court of Appeals in 2021.

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.Ecuador
The Case of Nonconsensual Pornography Sent to Victim’s Parents
Decision Date: January 27, 2021
The Constitutional Court of Ecuador held that the storage and sharing of sexual photos without the consent of the victim were a violation of her constitutional rights to personal data protection, reputation, and intimacy. The victim pursued a habeas data action against the defendant, who had found the pictures in a family-shared computer, saved them on a flash drive, and sent them to the parents of the victim. The Court reasoned those intimate images were personal data sent exclusively to the defendant’s partner and required previous consent to be processed by anyone else. When the defendant saved the photos and shared them with other people, she inflicted damage and violated human rights grounded on dignity and informational self-determination.

Columbia Global Freedom of Expression is completing its collection of all relevant decisions from the Grand Chamber of the European Court of Human Rights. The following were published this week.

Wille v. Liechtenstein
Decision Date: October 28, 1999
The Grand Chamber of the European Court of Human Rights held that threatening and effectively refusing to re-appoint a civil servant on account of his publicly expressed opinion was a violation of Article 10. The applicant, a Liechtenstein national was the President of the Administrative Court. In a public lecture, he presented his personal views that the constitutional court has a right to interpret the constitution in case of disagreement between the Prince and the Diet. Unhappy and in disagreement with this comment, the Prince sent the applicant a series of letters expressing his intention to not re-appoint the applicant, should he be proposed by the Diet. In 1997, when the applicant was re-nominated for the position, the Prince refused re-appointment. The Court held that the European Convention on Human Rights (ECHR) does not discriminate against public officials. Their rights are protected by the Convention and the Court will look at interference with the freedom of expression of a judge in close scrutiny. The Prince’s decision to not re-elect the applicant  was  based on his controversial views expressed at the lecture, rather than on his performance of his professional duties.  According to the Court, this was a disproportionate interference with the applicant’s freedom of expression as the opinion was neither untenable nor incompatible with his duties as a public officer. The Court further held that Liechtenstein violated Article 13 in connection to Article 10 of the ECHR by failing to provide the means to ensure the applicant’s right to an effective remedy.

Dalban v. Romania
Decision Date: September 28, 1999
The Grand Chamber of the European Court of Human Rights held that convicting a journalist for criminal defamation when there was no evidence to prove the falsity of his statement was a disproportionate interference with his freedom of speech and expression. The applicant, a Romanian journalist was convicted for defaming the chief executive of a state-owned company and a Senator, for his articles alleging fraud published in a weekly magazine. The Court found that the articles were written on matters of public interest and there was no proof that the descriptions in the article were untrue. According to the Court, unless the alleger can prove the allegation, a journalist should not be debarred from publishing their opinion. As a public watchdog, a journalist cannot be penalised for imparting critical value judgment on matters of public interest, and hence the Court found Romania had violated Article 10 of the Convention.

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.

The State of Artistic Freedom 2021
This report by Freemuse provides an “analytical examination of violations to the right to freedom of artistic expression documented through 2020 and presents some of the most prevailing restrictions. The report is based on the analyses of 978 incidents where this right was violated… in 89 countries and online. In addition to statistical data, Freemuse also utilises qualitative interviews with 70 artists and relevant experts, providing personal experiences, reflections and insights about the limitations put on artistic freedom. Aiming to illustrate varying problems and obstacles artists face in different parts of the world, Freemuse also provides analysis of the state of artistic freedoms in 15 countries: Bangladesh, Belarus, Brazil, China, Cuba, Egypt, India, Iran, Kenya, Kuwait, Nigeria, Russia, Turkey, Uganda, and the United States of America. The report demonstrates that although artistic expression has been under attack by different actors (including political and religious groups, social media platforms and private individuals), different government authorities instigated violations in 60 percent of documented cases. This data illustrates that governments and state-funded bodies remain the biggest threat to artistic expression, as well as that nationalist and populist authorities stay determined to silence varying ways of voicing political dissent.”

Manifesto on the Freedom of Expression of Arts and Culture in the Digital Era
This Manifesto on the Freedom of Expression of Arts and Culture in the Digital Era, produced by The Council of Europe in 2020, discusses “the importance of artistic creation and cultural industry for our democratic societies as well as the protection, which Article 10 of the European Convention on Human Rights extends to the freedom of artistic expression. Freedom of speech is also the freedom to create. The power of art to communicate and open up new perspectives and ideas makes the artist, artistic mobility and artistic freedom strategic resources for society, helping to overcome fragmentation and addressing today’s global challenges.” The Council of Europe Secretary General Marija Pejčinović Burić further noted that “the COVID-19 crisis has severely affected the working conditions and income of artists and the cultural and creative sector as a whole. The Manifesto draws attention to these risks and sends a clear political signal to protect openness and creativity, which are essential ingredients of our democracies.”

Post Scriptum

● BIRN and SHARE Foundation have released a report “Online Intimidation: Controlling the Narrative in the Balkans,” which documents more than 800 cases of digital rights violations in Bosnia and Herzegovina, Croatia, Hungary, Kosovo, Montenegro, North Macedonia, Romania and Serbia. The report observes that hate speech relating to vulnerable groups is on the rise, as is speech directed at further polarizing societies based on political and religious affiliations. Three hundred and nine of the cases related to disinformation and propaganda. They further found evidence of pro-government social media accounts in Serbia and Hungary targeting independent journalists. Privacy and personal data breaches are also discussed.

● Techdirt’s blog “Federal Court tells Proud Boys defendants that raiding the Capitol Building isn’t covered by the First Amendment” discusses a recent ruling allowing proceedings against January 6 rioters to move forward. Members of the far-right group the Proud Boys tried to argue that their conduct during the January 6 raid amounted to mere protest. The Court found all their arguments failed, observing that the defendants “are charged with conduct involving acts of trespass, depredation of property, and interference with law enforcement, all intended to obstruct Congress’s performance of its constitutional duties. No matter Defendants’ political motivations or any political message they wished to express, this alleged conduct is simply not protected by the First Amendment.”

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