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

● “Who is the Guardian of Free Speech? Meta‘s Oversight Board and (other) Courts and Dispute Resolution Mechanisms.” Join the Max Planck Institute for Comparative Public Law and International Law (MPIL) in cooperation with Columbia Global Freedom of Expression for a discussion on the relationship between State courts and emerging private dispute resolution mechanisms in the realm of content moderation, their effect on freedom of speech on the internet and new regulatory proposals in instruments such as “Europe’s Constitution for Internet Platforms”, the Digital Services Act. Panelists include Oversight Board’s Co-Chair and former Inter-American Rapporteur for Freedom of Expression Professor Catalina Botero-Marino (Global Freedom of Expression, Columbia University); Professor Martin Eifert (Humboldt University Berlin); Professor Matthias Kettemann (University of Innsbruck / Hans Bredow Institute, Hamburg); and Erik Tuchtfeld (MPIL). The discussion will be moderated by Alexandra Kemmerer (MPIL), and will be open for comments and questions by registered participants. Thursday, 10 February from 11:00 AM-12:30 PM ET / 5:00-6:30 PM CEST. Register here.

● Strasbourg Observers published a blog by Meri Baghdasaryan “Standard Verlagsgesellschaft Mbh V. Austria (No. 3): Is the ECtHR Standing Up For Anonymous Speech Online?” The case concerned the liability of an online news portal for refusing to disclose anonymous user data in relation to allegedly defamatory comments. (See our case analysis below) Baghdasaryan observes that in the judgment the “ECtHR attempted to carve a new space for protecting anonymous speech online” by creating “a new ‘hybrid’ category for host providers that conduct journalistic activities, in addition to providing a moderated forum for public comments.” The blog discusses the ruling as it relates to other cases involving platform liability such as Delfi AS v. Estonia and the definition of a public watchdog in Magyar Helsinki Bizottság v. Hungary. It concludes with questions about its significance for future rulings and “whether the right to expressing anonymous opinions online will enjoy similar protections irrespective of the public watchdog nature of the host provider.”

● Access Info reports that the European Ombudsman Emily O’Reilly has decided that public servants’ texts messages are documents subject to information requests. The decision pertained to a request made to the European Commission for text messages between Commission President Ursula von der Leyen and the CEO of Pfizer about Covid vaccine purchases. The European Ombudsman’s decision defines documents as “any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility.” Access Info is further “calling for an urgent reform to ensure that the EU’s twenty-year-old access to documents rules are brought into line with the digital age.”

Decisions this Week

European Court of Human Rights
Standard Verlagsgesellschaft mbH v. Austria (no. 3)
Decision Date: December 7, 2021
The European Court of Human Rights unanimously ruled that requiring the applicant to disclose personal information of its registered users violated the applicant’s freedom of expression. The applicant was a media company, publisher of the offline newspaper and its online version Der Standard. The case concerned online comments published by registered users on the applicant’s website against two right-wing Austrian politicians. The politicians and the political party requested the applicant to remove the comments and disclose the identities of the two authors to initiate civil and criminal procedures. The applicant deleted the comments but refused to provide the identity of the authors. On an application by the political leaders, the Supreme Court of Austria ordered the applicant to disclose personal data of the users. The Court found this to be a violation of the applicant’s Article 10 rights. By not taking into account the political nature of the contested comments and by not running any test on balancing competing interests, the domestic courts failed to protect the applicant’s right to freedom of expression. Although the comments were published by the users and not the applicant, the direction for removal of the comments interfered with the users’ anonymity which consequently interfered with the applicant’s right to promote the free flow of information and ideas.

Öztürk v. Turkey
Decision Date: September 28, 1999
The Grand Chamber of the European Court of Human Rights held that a Turkish publisher’s conviction in respect of a book about a communist leader was a violation of the right to freedom of expression. Criminal charges for spreading communist propaganda and for inciting hatred and hostility were brought against the author and the publisher, and copies of the books were confiscated and destroyed. After the author was acquitted, the publisher approached the Court, arguing that there was no “pressing social need” for his conviction. The Court found that there was no evidence that the content of the book threatened disorder in Turkey, and that given the importance of protecting political speech, the interference in the publisher’s right was not proportionate or necessary.

The Case of São Paulo Subway Facial Recognition Cameras
Decision Date: May 7, 2021
A Civil Court in São Paulo, Brazil held that the use of facial recognition technology on a subway line was an infringement of the right to privacy of one’s image and to the freedom of information. After the operator of a subway line in São Paulo introduced interactive subway car doors which displayed personalized advertisements to the passengers based on information gathered through facial detection technology, a consumer rights organization approached the Court seeking damages and an order prohibiting the use of the equipment. The Court held that the use of any facial recognition or detection software required the consent of users, and ordered the subway operator to cease using the technology.

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.

Free Speech and Ideology: Society, Politics, Law
This paper by Dario Mazzola published in Javnost – The Public discusses “the tensions and contradictions” in different perspectives on the concept of free speech, relying on the works of Alasdair MacIntyre and Stanley Fish to frame the debate. Mazzola explores the extreme conception of free speech to find that it is not viable and that legal realists’ interpretation is highly ideological. He further observes that “free speech is indeed an incomplete, context-sensitive right granted to someone on some occasions, often depending on extra-legal, historical, sociological, political and practical factors. This leaves the door open to interpretations of the right to free speech as ideological in other and more substantial ways, such as in the venues of Critical Legal Studies.” The author concludes by assessing the impact of rapid technological advances on our societies.

Intermediaries & Private Speech Regulation: A Transatlantic Dialogue

This workshop report documents the findings of a day-long workshop co-hosted by the Information Society Project at the Yale Law School and the Stanford Center for Internet and Society. The workshop “convened leading experts from the United States and the European Union for a series of non-public, guided discussions. Participants discussed the complicated issue of private speech regulation and the connections between platform liability laws and fundamental rights, including free expression. This report presents a synthesized collection of ideas and questions raised by one or more of the experts during the event, providing an overview of theoretical ideas, practical experiences, and directions for further research on rapidly evolving questions of intermediary liability from a uniquely transatlantic perspective.”

Post Scriptum

●  The ECHR Blog reports that Professors Helen Duffy and Philip Leach (co-supervisors in the Turkey Litigation Support Project), on behalf of a group of 19 academics, have submitted a third party intervention to the European Court of Human Rights in the so-called “Academics for Peace” cases to underscore the importance of academic freedom in and for the Convention system. The Blog explains that the “cases concern a group of academics from different Turkish universities who on 11 January 2016 issued a statement entitled ‘We will not be a party to this crime’, which critically questioned the Turkish Government’s role in the conflict in South-East Turkey and the associated serious human rights violations. President Erdoğan accused them of treason, and hundreds of academics, including the applicants, were then dismissed from their university positions through a series of emergency decrees.”

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