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
● The Office of the United Nations High Commissioner for Human Rights has issued its first report dedicated to the right of access to information which provides guidance to state actors on the development of appropriate and effective laws and policies. ARTICLE 19 highlights a range of important aspects of the report including its recognition of “the principle of maximum disclosure,” its “focus on how States should proactively publish information in the public interest,” and improve access for individuals and marginalized communities. The report further urges States “to establish independent and impartial oversight mechanisms with a mandate to monitor and report on the implementation of the right of access to information laws” and included “a section on the promotion of access to the Internet and on access to information during the COVID-19 pandemic.”
● IFEX published a statement from the Electronic Frontier Foundation about tactics and negative consequences of emerging forms of hacktivism against Russia. According to the statement, some “protest-ware” are deleting and overwriting all files if the package was installed on a computer with a Russian or Belarusian IP address. They warn that despite the good intentions, that type of nonviolent protest or calls to revoke Russian top level domain names or IP addresses would likely result in “dangerous and long-lasting consequences. It will deprive people of a powerful tool for sharing information when they need it the most, compromise security and privacy, and undermine trust in the global communications infrastructures we all rely on.”
● Tech Policy Press has a podcast “War Propaganda and International Law: A Conversation with Vivek Krishnamurthy.” Krishnamurthy, currently a fellow at the Carr Center for Human Rights Policy at the Harvard Kennedy School, explains the history and scope of Article 20 of the International Covenant on Civil and Political Rights and explores whether existing international legal prohibitions could be used to structure the response of companies and states to Russian war propaganda. While he finds that Article 20 is applicable in this context, he also expresses “concern that the cure is sometimes worse than the disease, that we can’t narrowly target propagandistic activities without burdening other legitimate expression or creating precedents that are dangerous in the hands of authoritarian governments.”
Decisions this Week
The Case of Keskin Kalem Yayıncılık v. Ticaret A.Ş.
Decision Date: October 27, 2021
The Turkish Constitutional Court held that blocking access to news articles on account of a violation of reputation and personality rights infringed the constitutionally-protected right to freedom of expression. Five news websites had had access to various articles blocked after lower courts had ruled that the access-blocking was necessary to protect prominent individuals’ reputation and personal rights. The decisions were made under a provision of Turkish law which permitted the blocking and provided no opportunity to realistically challenge the decision. The Constitutional Court held that domestic law lacked procedural safeguards against excessive and arbitrary Internet blocking measures and that the provision was the source of systematic violation of the right to freedom of expression online and of media freedom in Turkey. The judgment contained a series of recommendations on how to make the law constitutionally compliant and a copy was shared with the legislature.
Koko v. Tanton
Decision Date: September 7, 2021
The Johannesburg High Court in South Africa held that a defamation case brought by a former politically-connected executive of the national electricity entity constituted a SLAPP suit. The executive had sought an apology, interdict and damages of R500 000 (approx. USD30 000 in 2022) and rejected the individual’s offer of a settlement before filing a defamation application. The Court held that the executive’s conduct demonstrated that he initiated the application merely to punish the individual concerned and deter others from making statements about him and did not seek to repair his allegedly damaged reputation, and therefore dismissed the application.
European Court of Human Rights
Feldek v. Slovakia
Decision Date: July 12, 2001
The European Court of Human Rights decided by five votes to two, that the Slovak Republic Supreme Court´s conviction of a publicist for a statement referring to the fascist past of the Slovak Minister of Culture and Education was a violation of Article 10 of the European Convention on Human Rights. The Court concluded that the Slovak Court had not convincingly established any pressing social need for protecting the personality rights of a public figure above the applicant’s right to freedom of expression and the general interest of promoting this freedom when issues of public interest are concerned.
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.
Hate Speech Laws and Blasphemy Laws: Parallels Show Problems with the U.N. Strategy and Plan of Action on Hate Speech
This article by Meghan Fischer highlights potential dangers posed to religious and political minorities by the U.N. Strategy and Plan of Action on Hate Speech. Fischer argues that the Strategy and Plan of Action’s definition of hate speech is “ambiguous and relies entirely on subjective interpretation, opening the door to arbitrary and malicious accusations and prosecutions.” According to the author, the definition used is similar to that used in blasphemy laws which U.N. human rights entities have criticized for being “vague, broad, and prone to arbitrary enforcement, enabling the authorities to use them to attack religious minorities, political opponents, and people who have minority viewpoints.” She fears that the Plan could “give cover to countries that want to continue their blasphemy laws—under the guise of banning hate speech—with the endorsement of the United Nations” and she provides examples of similar application of hate speech laws in Indonesia, Russia, North Macedonia, and Denmark.
● In case you missed it: “Democratic recession or breaking point for the ‘bulwark of liberty’?” is now posted on our database and on YouTube. Jacob Mchangama, founder of Justitia and Joel Simon, fellow at the Tow Center for Digital Journalism at Columbia Journalism School and former executive director of the Committee to Protect Journalists discussed Mchangama’s new book Free Speech: A History From Socrates to Social Media to provide some historical perspectives on threats to this “first freedom” and the current struggle for democracy in the digital age.
● In case you missed it: “Workshops on the Protection of Journalists | Chapter 5: Human Rights Standards for the Protection of Journalists in Europe & States’ Best Practices” is now posted on our database and on YouTube. Speakers discussed regional findings in Europe based on recent case law and shared their viewpoints on the main global challenges to freedom of expression related to violence against journalists. Speakers included Tarlach McGonagle, Professor of Media Law & Information Society, Leiden Law School of the University of Amsterdam; Tom Gibson, EU Representative, Committee to Protect Journalists; Renate Schroeder, Director, European Federation of Journalists; Sarah Clarke, Head of Europe & Asia, ARTICLE 19; and Giulia Lucchese, Secretary to the MSI-SLP, Council of Europe with Ramiro Alvarez Ugarte, Senior Researcher, Centro de Estudios en Libertad de Expresión (CELE) as moderator.
● “International Institutions and Platform-Mediated Misinformation” by Aziz Z. Huq in the Chicago Journal of International Law, Vol. 22 explores one particular kind of interaction between democratic nation states and international instruments and institutions – namely, how international law and institutions either mitigate or exacerbate harms to democracy from the diffusion of misinformation and hate speech on social-media platforms. He identifies three pathways (1) international law as an off-the-rack legal regime for content-moderation by such platforms; (2) international ‘contouring’ of feasible domestic regulation; and (3) ex ante and ex post international regulation of platform-mediated misinformation.
This newsletter is reproduced with the permission of Global Freedom of Expression. For an archive of previous newsletters, see here.