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

● “News that’s fit to print.” For World Press Freedom Day, IFEX’s Executive Director Annie Game shines a spotlight on the media’s important role as defenders of information integrity, especially in times of crisis  –  work that is needed now more than ever to protect civic space from the escalating assaults on it. She observes that “the good news is that when the media and civil society work together, they create a better information climate – and a healthier civic space – for us all.” The article is also available in العربية, Français and Español

● “Freedom of Expression, the Media and Journalists – Case-law of the European Court of Human Rights.” On the occasion of World Press Freedom Day, the European Audiovisual Observatory has published the seventh edition of the third e-book in the IRIS Themes series, prepared in collaboration with its partner organisation, the Institute for Information Law (IViR) of the University of Amsterdam. This 2022 revised edition contains summaries of 360 judgments or decisions by the Court and provides hyperlinks to the full text of each of the summarised judgments or decisions (via HUDOC, the Court’s online case-law database). It can be read in various ways: for initial orientation in the steadily growing Article 10 case-law; for refreshing one’s knowledge of that case-law; for quick reference and checking, as well as for substantive research.

● Upcoming Events: “Protecting the Press: International Standards & Judicial Trends in Cases of Violence Against Journalists.” Join Columbia Global Freedom of Expression for virtual capstone events, in Spanish and English, to present the final report of our findings on judicial trends around the world relating to violence against journalists. Over the last year, senior researchers studied and explored new judicial decisions, pinpointing those that upheld international human rights standards and held states accountable for their actions and their obligation to prevent, protect, and punish those crimes.

The Webinar in Spanish will be held on Monday, May 9 at 10-11am ET. This event is co-hosted by the UNESCO Chair on Freedom of Expression of the Universidad de los Andes in Colombia who will present the “Toolbox for Ibero-American judicial schools: training of trainers in freedom of expression, access to public information and security of journalists.” Speakers include: Catalina Botero, Columbia Global Freedom of Expression; Silvia Chocarro, Directora de Protección, ARTICLE 19; Adriana León, Jefa de libertades, IPYS (Peru); Jonathan Bock, Director Ejecutivo, FLIP (Colombia); and Natalia Mazotte, Presidenta, ABRAJI (Brazil). Register here.

The Webinar in English will be held on Wednesday, May 11 at 10-11:00am ET: Ramiro Alvarez Ugarte, Senior Researcher, Centro de Estudios en Libertad de Expresión (CELE) will moderate a discussion between Rachael Kay, Deputy Director, IFEX, and Barbora Bukovská, Senior Director for Law and Policy, ARTICLE 19. Register here.

● “‘Daphne’s Law’: The European Commission introduces an anti-SLAPP initiative.” Professor Justin Borg-Barthet of the University of Aberdeen provides a detailed analysis of the evolution of anti-SLAPP initiatives in Europe which “culminated in the introduction of a package of anti-SLAPP measures on 27th April 2022, including a proposed anti-SLAPP Directive which Vice-President Jourova dubbed ‘Daphne’s Law’. The legislative proposal is based, in part, on a Model Law which was commissioned by the Coalition Against SLAPPs in Europe (CASE), a grouping of NGOs established to further the research basis and advocacy for anti-SLAPP laws in Europe.” The article further details the Commission’s “innovative formulation” which takes into consideration the internal market and EU governance implications of SLAPPs and “that cross-border implications do not flow only from the circumstances of the parties but also from transnational public interest in the underlying dispute.” Shortcomings in the directive and recommended amendments are also discussed.

Decisions this Week

Pakistan
Rana Muhammad Arshad v. Pakistan
Decision Date: November 3, 2020
The Islamabad High Court, a constitutional court in Pakistan, held that the investigation initiated against journalist Rana Muhammed Arshad, by the Federal Investigating Agency (FIA) by means of an undated notice was an abuse of the procedure established by law, and that the journalist was in fact being “targeted as retaliation for his work.” The Court held that such action was violative of the fundamental right to freedom of speech and expression, free press and a citizen’s right to access information of public importance enshrined in Articles 19 and 19A of the Constitution of the Islamic Republic of Pakistan, 1973. The Court further held that when an investigative agency abuses its coercive powers, it profoundly affects the freedom of press and independence of a journalist, and gives rise to a perception of retaliation to professional functions. With these observations, the Court directed the Federal Investigating Agency to frame special guidelines regarding proceedings against persons engaged in the profession of journalism.

Shahid Akbar Abbasi v. Chief Commissioner
Decision Date:  July 20, 2020
The Islamabad High Court, in a Habeas Corpus petition filed in connection with the abduction of journalist Matiullah Jan, directed the Federal Government to carry out the investigation into the abduction, with transparency and diligence so as to apprehend those who “attempted to terrorize journalists as a class”. The High Court stated that the perpetrators of his abduction should be dealt with “in a manner so that no journalist in the country fears to be harmed for exposing the truth”. Matiullah Jan, a vocal critic of the Pakistan government, army and establishment, was abducted a day before he was scheduled to appear before the Supreme Court in a contempt of court case regarding a tweet he posted on social media. He was abducted in broad daylight, by a group of men – some in uniform and some in plain clothes, and his abduction was caught on CCTV camera. He was tortured and threatened for about nine hours. After his abduction, Matiuallah Jan’s brother, Shahid Akbar Abbasi filed a Habeas Corpus Petition before the Islamabad High Court, seeking his release forthwith. Matiullah Jan was released by the perpetrators after about 12 hours of abduction, and before the judgment was passed by the Islamabad High Court. Following Matiullah Jan’s release, the matter came up before the High Court on July 22, 2020. Noting the importance of Matiullah Jan’s profession as a journalist, and the role of the press as a watchdog, the High Court held that the State must “demonstrably show that there is a political will to put an end to impunity for crimes against citizens and to protect journalists from harm from exercising the right to free speech.”

Colombia
Carrillo and Barreto v. the National Protection Protection Unit (UNP)
Decision Date: November 3, 2020
The Constitutional Court of Colombia decided to grant protection to the rights to life, integrity and security of Saúl David Carrillo and Francisco Barreto, human rights activists, following the decision of the National Protection Department to remove or reduce their security arrangements. The Court found that the irregularities and omissions of the authorities created a reasonable doubt as to the real risk of the plaintiffs. It also evidenced a structural problem regarding the security of social leaders in Colombia and hence ordered the National Protection Unit to review and update the criteria for the identification of social leaders, as well as urged different government entities to issue a public policy for the protection of social leaders.

Philippines
People of the Philippines v. Datu Andal “Unsay” Ampatuan Jr.
Decision Date: December 19, 2019
The Regional Trial Court, National Capital Judicial Region Branch 221, Quezon City of the Philippines, convicted Andal Ampatuan Jr., his brother Zaldy Ampatuan and twenty-six other accomplices, including senior police officers, for the mass murder of 58 persons, including 32 journalists. This incident is also known as the Maguindanao massacre. They were sentenced to a penalty of imprisonment of ‘Reclusion Perpetua without Parole’ i.e. jail-time upto 40 years without parole. The principal accused were also directed to pay damages to the heirs of the victims. The 32 journalists killed were part of the convoy of 58 people, who were on their way to file the certificate of candidacy on behalf of the opposition candidate running against the politician, Datu Andal “Unsay” Ampatuan, Jr (of the powerful Ampatuan clan) for the governorship of Maguindanao. These journalists were reporting on the event. The Court held  that the killings qualified as murder, since it satisfied the first and fifth provisions of Article 248 of the Revised Penal Code (RPC) which provided that a person would be guilty of murder, when the killing of another is committed “(1) With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity” and “(5) With evident premeditation.” With respect to damages, the Court reasoned that since the deaths were caused due to crimes committed by the accused, civil indemnity in the form of damages had to be paid. On the other hand, actual damage including the loss of earning capacity had to be determined individually, depending on the evidence presented by each heir of the victims.

Inter-American Court of Human Rights
Case of Herzog et al. v. Brazil
Decision Date: March 15, 2018
The Inter-American Court of Human Rights found that Brazil was responsible for the violations to the rights to judicial guarantees and judicial protection, to know the truth and to personal integrity of Mr. Herzog’s wife, sons, and mother. According to the IACtHR, the State failed to investigate and prosecute the crimes (murder, torture, and others) committed by State officials against the journalist Vladimir Herzog, who was persecuted by reason of his political preferences in the 70’s. The IACtHR in its judgement recalled that crimes against humanity are imprescriptible and therefore, Brazil’s obligation to investigate and clarify the circumstances in which the journalist was murdered and tortured had never ceased; nonetheless the State did not comply with it. Moreover, the Court stated that amnesty law in this case had been used to deprive the victims from their legitimate right to seek justice through the judicial system.


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.

A Theory of Media Freedom
This article by Damian Tambini examines the notion of media freedom, including the development of two cultures of media freedom. The negative rights approach prevalent in US law is increasingly separated from the more positive rights approach of international human rights and the European Convention on Human Rights. The article also outlines the elements of a conditional, institutional approach to media freedom that combines both positive and negative approaches. The paper examines the implications of this theory for some contemporary policy questions in the regulation of internet intermediaries in Europe.

Mapping and Analysis of Privacy Laws and Policies in Africa: Summary Report
This analysis by the Collaboration on International ICT Policy for East and Southern Africa (CIPESA) informs remedial and mitigatory steps to protect the right to privacy, including strategic litigation, capacity building, and advocacy for legislative and policy reforms. Moreover, the results of this analysis are also crucial for monitoring developments and trends in privacy regulation and practice in the region.

Post Scriptum

● “Hate Crimes: The legality and Practicality of Punishing Bias—A Socio‑Legal Appraisal,” by Global Freedom of Expression partner Natalie Alkiviadou in the International Journal of Semiotic Law assesses the extent to which enhancing a penalty for hate crimes is a necessity. It conducts its analysis by looking at the theoretical justifications for and against such enhancement and also the impact of hate crimes on their victims, their groups and society, in comparison to non-bias crimes. The paper commences with a definitional and conceptual framework of hate crimes, proceeds with the theoretical argumentations for and against hate crime legislation, conducts a legislative analysis of hate crimes, using examples from around the world as well as an assessment of the approach of the European Court of Human Rights to hate crime.

● Call for Contributions: Academic Consultation on Journalists’ Safety at UNESCO Headquarters in Paris. 2022 marks the tenth anniversary of the UN Action Plan on the Safety of Journalists and the Issue of Impunity. This is a call for contributions to the first in a series of academic consultations on the anniversary of the UN Action Plan to be held as a hybrid event (at UNESCO Headquarters in Paris and online) on 30 May 2022, jointly co-organised by UNESCO, the Journalism Safety Research Network, the UNESCO Chair on Media Freedom, Journalism Safety and the Issue of Impunity/Centre for Freedom of the Media, University of Sheffield, the World of Journalism Study and the Centre for Digital Politics, Media and Democracy, University of Liverpool. The event will support the formulation of a set of recommendations from the global academic community to the Ministerial Conference on the UN Action Plan in November 2022. More information here. Submission deadline: 13 May 2022.

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