Global Freedom of Expression, Columbia University: Newsletter, w/e 23 April 2022

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.

Decisions this Week

Chile

The Supreme Court of Chile partially revoked a ruling of the Court of Appeals of Concepción that rejected a writ for protection filed by Maureira Álvarez, a former public official, against media outlets for maintaining internet-based publications connected to a criminal investigation into his alleged role in the embezzlement of public funds. While the veracity of the events were agreed upon, Mr. Álvarez argued that the charges had been dismissed and that that the permanence of incomplete information online violated his right to privacy and honor and submitted that the latter rights should prevail over freedom of expression. The Court observed that despite the passage of time and the dismissal of the charges, the information maintained public relevance since it concerned allegations of corruption against a public official in his professional capacity. As Chilean law does not recognize the so-called “right to be forgotten,” the Supreme Court weighed the right to access information against the right to private life and honor to hold that the media outlets had violated the Mr. Álvarez’s right to honor by failing to include the definitive dismissal of the charges against him. Hence, the Court further ordered  the media outlets to update their posts to include a link to the full text of the judgment dismissing the charges against Mr. Álvarez.

The Santiago Court of Appeals denied a writ of protection filed by Herval Rossano Abreu Guerrero against Google, Microsoft, Verizon Chile, and Wikimedia Chile that sought deletion of all information related to the sexual abuse allegations against him. Mr. Abreu claimed that his “right to be forgotten” was infringed by the search engines since they maintained publications that had stopped being of public relevance after a Criminal Court had dismissed the charges. However, the Court of Appeals determined that the search engines had not infringed the Plaintiff’s rights since the information was neither false nor outdated.

Hong Kong
HKSAR v. Mo Man Ching Claudia
Decision Date: May 28, 2021
The High Court of the Hong Kong Special Administrative Region (HKSAR), Court of First Instance, dismissed the bail application of journalist and former legislator Mo Man Ching Claudia, alias Claudia Mo, on April 14, 2021 and gave its judgment with reasons for the dismissal on May 28, 2021. The journalist was arrested along with 46 others on the charge of “conspiracy to commit subversion”, and it was alleged that she was part of a scheme to “undermine the proper functioning of the Legislative Council so as to paralyze the operations of the HKSAR government.” She approached the High Court after her bail application was refused by the Chief Magistrate. The High Court also refused bail, for the reason that it was not satisfied that the journalist would “not continue to commit acts endangering national security if bail is granted.” The High Court came to this conclusion after scrutinizing  the journalist’s private WhatsApp conversations and interviews with other journalists from major international media organizations, where she discussed the “loss of human rights and freedom” in HKSAR.

HKSAR  v. Lai Chee Ying
Decision Date: February 9, 2021
The Court of Final Appeal of the Hong Kong Special Administrative Region (HKSAR) refused to grant bail to founder and owner of pro-democracy tabloid Apple Daily, Lai Chee Ying, popularly known as Jimmy Lai, who was charged with an offence under the National Security Law, 2020 (NSL). On December 12, 2020, Jimmy Lai was charged under Article 29(4) of the NSL which criminalises “colluding with a foreign country or with external elements to endanger national security” for having called upon foreign governments, through articles, interviews and tweets, to impose sanctions on the governments of HKSAR and China, in response to the implementation of the controversial NSL. Around the same time as when Jimmy Lai made public statements calling for sanctions, the United States passed a legislation imposing financial sanctions on officials of China and the HKSAR. While the Chief Magistrate initially refused to grant bail to Jimmy Lai, this decision was overturned by the High Court of HKSAR, Court of First Instance on December 23, 2020, and Lai was granted bail subject to a series of conditions. These conditions included prohibitions on publishing any articles, writing any posts on social media or attending or hosting any interviews, television, radio or online programmes. However, the Court of Final Appeal set aside the High Court’s decision, finding that the High Court had erroneously interpreted Article 42(2) of the NSL. It held that given the context and purpose of the NSL, Article 42(2) establishes a more stringent threshold for bail applications, in exception to the general principles of bail as per HKSAR’s general law.

Canada
Denis v. Côté
Decision Date: September 27, 2019
The Supreme Court of Canada (SCC) offered guidance for the first time on the 2017 amendment to the Canada Evidence Act (CEA), which provided for greater protection to journalistic sources. The case concerned a dispute between Marie-Maude Denis, a journalist in Quebec, and Marc-Yvan Coté, a former Quebec cabinet minister who faced criminal charges. Due to the emergence of new evidence, the Court did not rule on the merits of the case and ultimately sent it back to the Court of original jurisdiction. Nonetheless, the SCC delivered its interpretation of section 39.1 CEA concerning a subpoena to give testimony or orders to produce documents issued to journalists which are likely to reveal the identities of confidential sources. The SCC determined that individuals who don’t want to reveal a source had to show they are “journalists” and their source is a “journalistic source” under the CEA. Whereas the individual who wants the information to be disclosed must show, they can’t get it any other way and demonstrate that the public has a greater interest in making sure the crime is prosecuted than it does in protecting the confidential source.

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.

Reporting at a Distance: The Impact of COVID-19 on Journalists and Journalism in Africa
This report from the African Editors’ Forum represents the culmination of a qualitative study conducted in sixteen African countries from the five regions of Africa: North, Southern, West, Eastern and Central Africa. The study revealed international trends prevalent in the media. Interviews conducted in the selected countries were subjected to thematic analysis to discover the common themes in the diverse media landscapes represented in the sample.

The Safety Guide for Journalists Covering Pandemics in Africa
This guide from the African Editors’ Forum maps the challenges experienced by the media in Africa and proposes solutions for sustaining good journalism in the continent. The report also provides insights into how African journalists could best protect themselves moving forward. The Safety Guide for Journalists covering Pandemics in Africa was co-funded by UNESCO’s Multidonor Programme on Freedom of Expression and the Safety of Journalists (MDP) and the #Coronavirusfacts project supported by the European Union.

Post Scriptum

● TrialWatch has released its report on the case “Socialist Republic of Vietnam v. Pham Thi Doan Trang,” Authored by David McGraw, in-house counsel at The New York Times and the New York Daily News, the report found that “the trial of Pham Thi Doan Trang, a well-known journalist, author, and human rights activist, was marred by significant flaws… and her nine-year sentence violate[s] her substantive right to freedom of expression and the principle of legality.” Ms. Trang was charged with conducting “anti-state propaganda against the Socialist Republic of Vietnam” for her writing and activism.

● In case you missed “Lies, Free Speech, and the Law,” a video of the symposium hosted by the Knight First Amendment Institute is now available online here. The panels covered Lies in Historical Context; Doctrinal and definitional questions; Government lies; and Sociological conditions for the production of truth. Essays from the symposium will be published in the coming months.

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