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

● Mozilla, Knight First Amendment Institute at Columbia University, and Cybersecurity for Democracy are co-hosting a virtual panel “Pursuing Platform Transparency in 2022.” The panel features four experts from civil society who will present a three-pronged approach for making platform transparency a reality. Watch Wednesday 19 January from 11am – 12pm EST on Mozilla Foundation’s Twitter and YouTube.

● ARTICLE 19, IFEX and a coalition of media freedom organizations have called on the Prime Minister of Malta to engage with civil society in order to ensure that the implementation of the recommendations of the Public Inquiry into the assassination of Daphne Caruana Galizia meet international standards. One of the many important recommendations is legislation recognizing “journalism as the fourth pillar of democracy, and the need to create an enabling environment for independent journalism and measures to address impunity, corruption and the abuse of power.”

● The Electronic Frontier Foundation, Human Rights Watch and “nearly130 organizations and academics working in 56 countries, regions, or globally, urged members of the Ad Hoc Committee responsible for drafting a potential United Nations Cybercrime Treaty to ensure human rights protections are embedded in the final product.” The Treaty will address issues including “cybercrime, international cooperation, and access to potential digital evidence by law enforcement authorities” through cross-border investigations. The group warns that without sufficient human rights safeguards built into the treaty it could be abused as a “powerful weapon for oppression” as are many national cyber-crimes laws.

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.

Nubian Rights Forum v. Attorney General
Decision Date: January 30, 2020
The High Court of Kenya held that the collection of DNA and GPS data was an unjustifiable infringement of the right to privacy and therefore unconstitutional, and that the general data protection framework was insufficient. Three non-governmental organizations approached the Court after the enactment of amendments to the Registration of Persons Act creating a central database of biometric information and implementing a system of unique identification numbers. The Court accepted the need for certain biometric information to be collected and held by the State but held that the risks posed by the collection of DNA and GPS data was not outweighed by the benefits and so was not justifiable. Despite the adoption of the Data Protection Act during the proceedings, the Court held that the regulatory framework governing the collection of data was insufficiently comprehensive and so declared that the entire system could only be implemented after a comprehensive data protection regulatory framework was adopted.

European Court of Human Rights
White v. Sweden
Decision Date: September 19, 2006
The European Court of Human Rights found that defamatory information published in good faith and published in the public interest does not violate an individual’s right to reputation protected by Article 8 of the European Convention. The applicant, Mr. White filed an application against the State claiming that the Swedish courts failed to protect his reputation against the defamatory articles published by two leading newspapers – Expressen and Aftonbladet. The articles accused him of involvement in criminal offenses, including the murder of Olof Palme, the Swedish Prime Minister. The Court found that freedom of the press grants recourse to a degree of exaggeration and provocation. Any restrictions to the right must be construed strictly and established convincingly. In the present case, the journalists had taken steps to verify the information and presented balanced views, including statements from the applicant and third parties rejecting the allegations. Since the press had acted in good faith and the publication concerned matters of public interest, the public interest in publishing the information outweighed the applicant’s right to reputation.

MGN Limited v. United Kingdom
Decision Date: January 18, 2011
The European Court of Human Rights found that a restriction on the publication of private information did not violate the publisher’s Article 10 rights. However, excessive success fees as costs for liability was a violation of Article 10. The applicant was the publisher of UK’s national daily newspaper, The Daily Mirror. The paper published several articles regarding Ms. Naomi Campbell’s drug addiction. The articles provided details of the addiction and treatment, and two photographs of Ms. Campbell waiting outside the place of treatment. In a 6:1 decision, the Court found that disclosing that Ms. Campbell was a drug addict in treatment was in the public interest because Ms. Campbell had previously publicly denied drug use. However, additional details of her method of treatment and the two photographs were not in public interest and violated Ms. Campbell’s right to privacy. As part of a conditional fee agreement, the applicant was required to pay 95% and 100% of the costs in the House of Lords as success fees to the solicitors involved. The Court held that the success fees were a disproportionate interference with the applicant’s right to free speech because it could have a chilling effect on media organizations, discouraging them from publishing legitimate information and encouraging them to settle claims instead of defend them.

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 Global Expression Report 2021: The State of Freedom of Expression around the World
This report by ARTICLE 19 is “a global, data-informed, annual look at freedom of expression worldwide.” The report surveys events and trends impacting freedom of expression in 161 countries based on 25 indicators (GxR Metric) to rank countries on a scale of 1 to 100. “The GxR reflects not only the rights of journalists and civil society but also how much space there is for each of us – as individuals and members of organisations – to express and communicate; how free each and every person is to post online, to march, to research, and to access the information we need to participate in society and hold those with power to account.”

The State of Free Speech Online
This report by Big Brother Watch “examines the state of free speech online, mapping the impact of social media companies’ corporatisation of speech standards and the Government’s role in creating a two-tier speech system. It is the product of over two years of research on online censorship, during which major themes have emerged: ‘hate speech’ including speech on sex, gender and race; political posts, including left-wing and right-wing posts; and posts relating to health, from mental health to Covid-19.” The report provides numerous examples of censored content, some so offensive that the report comes with a trigger warning, but it does so to ask readers to consider whether such content should be censored by a private company and whether it should be censored with the state’s backing. The report further discusses the UK draft Online Safety Bill and its potential impacts on freedom of expression, and concludes with recommendations.

Post Scriptum

● Joseph Nye has an article in Foreign Affairs, “The End of Cyber-Anarchy? How to Build a New Digital Order.” Nye begins by observing that the “online world … is growing more dangerous by the day—with grim implications not just for cyberspace itself but also for economies, geopolitics, democratic societies, and basic questions of war and peace.” He then discusses the rocky but progressive evolution of cybernorms, and calls on the US and its allies to develop frameworks for policing the cyber realm including better defenses, deterrence, warning systems and accountability built on international diplomacy and cooperation.

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