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

● Book Launch: The Infodemic: How Censorship and Lies Made the World Sicker and Less Free. Join Joel Simon and Robert Mahoney, longtime senior leaders of the Committee to Protect Journalists, for a conversation about their new book, The Infodemic, published by Columbia Global Reports (CGR). One overlooked aspect of COVID-19 is that autocrats around the world—in China, Russia, Egypt, Iran, Brazil, India, and the Trump White House—have used the pandemic to censor information and flood the airwaves with lies, in the name of crisis management. As a result, democratic institutions and governance across the globe have vastly deteriorated, and the effects may be felt long after the pandemic is over. The authors will discuss these trends with Nick Lemann (CGR director), Dr. Wafaa El-Sadr (ICAP director), and investigative journalist Sheila Coronel. Online and at Columbia University Tuesday, April 26 at 6PM EDT. Register here.

● “The EU Ban of RT and Sputnik: Concerns Regarding Freedom of Expression” by Columbia Global Freedom of Expression researcher Igor Popović  on EJIL:Talk! considers whether the ban of these outlets in the EU is compatible with the principles of protecting freedom of expression under international and European human rights law. The blog outlines a few problematic aspects of the sanctions from a human rights law standpoint such as the extraordinarily broad scope of the ban, the legitimate aims and proportionality of the restriction. Citing to relevant regional case law, Popovic discusses whether RT’s misleading content reaches the threshold to be considered “propaganda for war” and he presents alternate less restrictive measures.

● “European Court of Justice Rejects RT France’s Urgent Application For Lifting of EU Sanctions.” IRIS Merlin reports that the European Court of Justice has rejected RT France’s request to stay the suspension of its broadcasting activities pending an additional request to annul the sanctions adopted by the Council of the European Union on 1 March. After weighing the competing interests, the President “concluded that the condition of urgency was not met because the harm caused to the party applying for interim protection was purely economic and financial in nature” which was not irreparable, and “that the annulment of the disputed acts at the end of the principal proceedings would provide sufficient reparation of the alleged moral damage” to its reputation. Further it was in the public interest to “protect the member states from disinformation and destabilisation campaigns that threatened the public order and security of the Union.” The European Audiovisual Observatory has published a Note on The implementation of EU sanctions against RT and Sputnik which outlines the legal and institutional framework of the sanctions.

Decisions this Week

European Court of Human Rights
OOO Memo v. Russia
Decision Date: March 15, 2022
In its judgment of 15 March 2022 the European Court of Human Rights (ECtHR) expressed its concerns about the risk for democracy of court proceedings instituted with a view to limiting public participation, interfering with the freedom of expression by media, journalists, or other public watchdogs. This is the first time the ECtHR has referred to the notion of SLAPP (Strategic Litigation Against Public Participation). The case concerns a civil defamation suit brought by a Russian regional state body against a media company. The media company was ordered to publish on its website a retraction to the effect that it had published false statements, tarnishing the claimant’s business reputation. The ECtHR found that although civil defamation proceedings were open to private or public companies to protect their reputation, this could not be the case for a large, taxpayer-funded, executive body like the claimant in this case. It decided that the interference with the media company’s right to freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights (ECHR) was not justified by a “legitimate aim”, as the Russian regional state body could not rely on the “protection of reputation and rights of others” as listed in Article 10 (2) ECHR. The ECtHR found that allowing executive bodies to bring defamation proceedings against members of the media places an excessive and disproportionate burden on the media and could have an inevitable chilling effect on the media in the performance of their task of purveyor of information and public watchdog.

General Court – Court of Justice of the European Union
Breyer v. Research Executive Agency (REA)
Decision Date: December 15, 2021
The General Court of the EU recognised that the European Commission’s Research Executive Agency (REA) had failed to properly assess a number of access to information requests filed by digital rights activist and a member of the European Parliament Patrick Breyer. Mr. Breyer requested for access to documents related to the EU-funded iBorderCtrl, a research project aiming to develop a “video lie detector” based on “artificial intelligence” to be used on people travelling to the EU and to detect whether people were lying when answering questions. The REA had denied access to the information on grounds that the disclosure would have undermined the protection of the commercial interests of the consortium of companies developing the technology for the project. The General Court ruled that the harm to the commercial interests of the consortium members outweighed the public interest in having such information disclosed as the requested documents related to the early stages of the research project. The Court arguably ruled that the public interest in the disclosure of information existed only once the innovations and research had been completed.

Germany
Erdogan v. Böhmermann
Decision Date: May 15, 2018
The Higher Regional Court of Hamburg held that the prohibition of large parts of a satirical poem about the Turkish President was lawful. Jan Böhmermann, a German satirist and comedian, had recited the poem in his television show, and had linked the president to various sexual deviant behaviors. The president applied for a preliminary injunction ordering the satirist not to repeat the poem publicly. The First Instance Court partly granted the injunction, finding that certain verses of the poem contained severe unsubstantiated sexual allegations and personal insults, which concerned the intimate sphere of the president’s personality, and thus human dignity. The Hamburg Higher Regional Court widely confirmed these findings, and found that the verses which contained gratuitous insults to the president or his behavior, unrelated to actual criticisms or reality, were not protected by the right to artistic freedom or freedom of expression.

On 26 January 2022, the German Federal Constitutional Court refused to accept a constitutional complaint by Jan Böhmermann relating the poem, and hence “the previous civil courts rulings, in which parts of the poem were declared unlawful, are now legally valid.”


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.

Freedom on the Net 2021: The Global Drive to Control Big Tech
Freedom House’s Freedom on the Net report “is an annual study of human rights in the digital sphere. The project assesses internet freedom in 70 countries, accounting for 88 percent of the world’s internet users. This report, the 11th in its series, covered developments between June 2020 and May 2021.” Its key findings are: “1) Global internet freedom declined for the 11th consecutive year; 2) Governments clashed with technology companies on users’ rights; 3) Free expression online is under unprecedented strain; 4) China ranks as the worst environment for internet freedom for the seventh year in a row; 5) The United States’ score declined for the fifth consecutive year; and, 6) State intervention must protect human rights online and preserve an open internet…[The uploaded report] is a summary of findings for the 2021 edition of Freedom on the Net. Narrative reports on the 70 countries assessed in this study can be found on our website at freedomonthenet.org.”

Post Scriptum

● Finally some good news: IFEX’s Regional Brief from African reports a bounty of positive rulings in March. The Supreme Court of Zambia ruled that the forced closure of The Post newspaper in 2016 by Zambia’s Revenue Authority was illegal and the Zambia Information and Communication Authority (ZICTA) entered into a consent judgement with the Chapter One Foundation agreeing “not to act outside its legal authority to interrupt access to the internet in future” and also agreed “to inform the public of the reason for any interruption in access to the internet within thirty-six hours of any such event.” A Nigerian court dismissed all defamation and treason charges against journalist Agba Jalingo who was arrested and tortured after reporting on government corruption. On March 25, the Economic Community of West African States Community Court of Justice issued a landmark ruling ordering the Nigerian government to either “repeal or amend Section 24 of the Cybercrime (Prohibition and Prevention) Act 2015 which, in its current form, violates Nigerians’ right to freedom of expression. The judgement went on to state that Section 24 of Nigeria’s Cybercrime Act, should be consistent with provisions of Article 9 of the African Charter on Human and Peoples’ Rights (ACHPR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR).”

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