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

● New Publication: “Special Collection on the Case Law on Freedom of Expression: African System of Human and Peoples´ Rights.” The second in a new series by Columbia Global Freedom of Expression, this publication aims to provide an overview of the valuable case law developed in the African System of Human and Peoples’ Rights regarding freedom of expression. The paper commences with a brief explanation of the African System and a concise reference to how the African Court on Human and Peoples’ Rights (AfCHPR) and the African Commission (ACHPR) engage with other decisions of national and International Courts. Finally, the document encompasses summaries of case law from the ACHPR and the AfCHPR, which are classified under different themes within freedom of expression.

● Upcoming Event: 116th Annual Meeting of the American Society of International Law, “Safeguarding Freedom of the Press: The Role of International Law.” The discussion will consider whether the existing international framework for the protection of journalists is working and what more can be done to safeguard and promote media freedom around the world. The event will take place online and in person on Thursday 7 April (14:00-15:00 ET) and will include members of the High Level Panel of Legal Experts on Media Freedom. Online registration to the ASIL conference is free for students. Register here.

● “South Africa: Defamation and vindication, the Supreme Court of Appeal’s flawed approach” by Global Freedom of Expression expert Dario Milo on Inforrm’s Blog discusses the negative impacts of two recent South African Supreme Court of Appeal (SCA) decisions. Milo argues that they mark a “retrogressive approach” by the Court which could set South Africa’s defamation laws back, rather than forward to address the prevalent online harms. Prior to 2020, the High Court had taken a progressive approach to establish a “full package of remedies” for deserving plaintiffs to get relatively quick relief. However, following the two SCA decisions, the “full package of remedies” is not available to plaintiffs, unless and until, they go to trial. If a plaintiff wants to go for the more efficient and less costly application on affidavit route, they cannot request damages, retractions or apologies.

● “Getting Information Into Russia,” a Lawfare Podcast with Quinta Jurecic; Evelyn Douek, Senior Research Fellow at the Knight First Amendment Institute; and Columbia University Professor Thomas Kent, a former president of the U.S. government-funded media organization Radio Free Europe/Radio Liberty, discusses ways that reporters, civil society and even the U.S. government might approach communicating the truth about the war in Ukraine to Russians. They further consider whether, and how, democracies should think about leveraging information as a tool against repressive governments, and how to distinguish journalism from such strategic efforts.

Decisions this Week

United States
Berisha v. Lawson
Decision Date: July 2, 2021
Justices Thomas and Gorsuch of the Supreme Court of United States dissented from the denial of certiorari and stated that a case involving the “actual malice doctrine”, established in the case of New York Times v. Sullivan, should be heard by the Court so that the doctrine could be reconsidered. The doctrine applies to defamation suits involving a public figure and requires the proof of actual malice on the part of a publisher when a false statement has been published. An Albanian individual had sued an American journalist for defamation after he published a book in which the individual was described as a member of the Albanian mafia. The District and Circuit Courts in Florida applied the doctrine and found in favor of the journalist. The Supreme Court refused to hear the individual’s appeal. Justice Thomas stated that that there had been no justification for the Court to implement the doctrine in the Sullivan case and that First Amendment protection should be given to “public figures”. Justice Gorsuch emphasized the importance of freedom of the press and that the doctrine may have been applicable in the past but stressed that the current media landscape meant that the doctrine now encouraged the publication of falsehoods and the extension of the category of people categorized as “public figures” left too many people without legal recourse when they have been defamed.

McKee v. Crosby
Decision Date: February 19, 2019
Justice Thomas of the Supreme Court of the United States wrote an opinion concurring in the denial of certiorari in which he stated that the “actual malice” doctrine established in the New York Times v. Sullivan case should be reconsidered by the Court. An individual had filed a defamation case against Bill Cosby after a defamatory letter was leaked to the media following her allegations that Cosby had raped her. The Lower Courts dismissed the case, categorizing the individual as a “limited-purpose public figure” and finding that she had not been able to prove Cosby acted with actual malice in the publication of the letter, as required by the Sullivan doctrine for defamation cases brought by public figures. The individual approached the Supreme Court seeking a review of the categorization as a public figure. The Court refused to hear the matter, and while concurring with that decision, Justice Thomas questioned the continued applicability of the Sullivan doctrine, arguing that there was no historical or constitutional basis for the adoption of the doctrine in that case.

Ricardo Anaya Cortés and PAN v. PRI, Sicre, Yepiz, Celaya y Asociados, and Google Mexico
Decision Date: August 2018
The Superior Chamber of the Electoral Court of Judicial Power in Mexico held that an election campaign organization could not be charged with an electoral slander infraction. The cause of action before the Court was the posting of a video on a news website in which a presidential candidate announced the withdrawal of his candidacy. According to the Court, the campaign video could be considered “fake news” because its accompanying text did not clearly state that the video was from a previous election. However, the Court concluded that the video did not have an “impact on the electoral process” and therefore could not be considered as electoral slander. To evaluate the impact on the election, the Court considered the timing of and the medium used for the publication.

hing 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 Media for Democracy Monitor 2021: How Leading News Media Survive Digital Transformation
This two-volume publication by Nordicom asks to what extent do structures and conduct of leading news media correspond with requirements of contemporary democracies? The Media for Democracy Monitor (MDM) uses several empirical indicators to assess the news media’s performance regarding freedom, equality, and control across several countries. It provides a ten-year retrospective of developments in 18 democracies highlighting various strengths and weaknesses that have emerged as news organizations have gone digital. Volume one contains countries present in the 2011 MDM edition, allowing for longitudinal comparative analysis: Australia, Austria, Finland, Germany, the Netherlands, Portugal, Sweden, Switzerland, and the United Kingdom. Volume two contains all countries analysed for the first time in 2021: Belgium (Flanders), Canada, Chile, Denmark, Greece, Hong Kong, Iceland, Italy, and South Korea.

Post Scriptum

● Access Info reports that it “has successfully defended the right of access to information in Malta, winning a court ruling from Malta’s Information and Data Protection Appeals Tribunal that all EU citizens have a right to submit information requests.” Access Info brought the case after an August 2019 request for data on migration to Malta made by an Italian citizen was refused on the ground that she was not a Maltese resident. On appeal “the Information and Data Protection Appeals Tribunal decided in favour of Access Info, finding that while the wording of the legislation leaves scope for interpretation, ‘the intention of the legislator was never to withhold such information from the EU citizens.’”

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