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

● “EU silences Russian state media: a step in the wrong direction,” an Inforrm’s Blog by Dirk Voorhoof explores some of the main points of criticism surrounding the “problematic relation between the EU-ban of Russian state media and the right to freedom of expression and media freedom as protected under Article 10 ECHR and Article 11 of the EU Charter on Fundamental Rights.” Despite the alleged legitimate aim to prevent the destabilizing influence of Russian state sponsored propaganda on the EU and Member states, Voorhoof observes that the “far-reaching measure via a Decision and a Regulation, and that political and not judicial authorities impose a ban on certain media outlets, on the basis of rather vague and ambiguous grounds, is unprecedented” and marks a “a radical break with democratic and constitutional principles.” It further could be considered “an arbitrary and particularly disproportionate interference” taken without adequate procedural safeguards in violation of established EU standards.

● “South Africa the Model? A Comparative Analysis of Hate Speech Jurisprudence of South Africa and the European Court of Human Rights,” by Jacob Mchangama and Natalie Alkiviadou in the Journal of Free Speech law compares “the handling of hate speech by the European Court of Human Rights and the highest courts of South Africa: The latter, it turns out, adopts a more robust and well-articulated approach to the issues of hate speech than the former, falling more in line with the thresholds set out by documents such as the UN’s Rabat Plan of Action.” The paper first discusses hate speech as a concept and then provides an overview of some cases from the ECtHR, followed by a more detailed analysis of hate speech cases decided by South African courts. The authors “argue that South Africa can be a good template for other countries, organizations, and social media platforms seeking a human-rights-based approach to handling hate speech.

● “Digital Constitutionalism in Europe: Reframing Rights and Powers in the Algorithmic Society,” a new e-book by Giovanni De Gregorio explores “rights and powers in the digital age” in an “attempt to reframe the role of constitutional democracies in the algorithmic society.” The book examines “the rise and consolidation of digital constitutionalism as a reaction to digital capitalism” within the European context and then explores “how European digital constitutionalism can protect fundamental rights and democratic values against the charm of digital liberalism and the challenges raised by platform powers. Firstly, this book investigates the reasons leading to the development of digital constitutionalism in Europe. Secondly, it provides a normative framework analysing to what extent European constitutionalism provides an architecture to protect rights and limit the exercise of unaccountable powers in the algorithmic society.”

Decisions this Week

Google Inc. v. B.R.
Decision Date: July 21, 2021
The Italian Supreme Court held that Google did not have to de-index search results of an individual as the individual had not provided details of the information he wished to be removed. After a lower court ordered Google to remove all results related to the individual as the information was no longer publicly relevant, Google had appealed to the Supreme Court. The Court acknowledged that the right to be forgotten can impose an obligation on search engines to remove information from its search results, but found that the request in this case was too generic and did not enable Google to sufficiently identify and de-reference the content which allegedly violated the individual’s right.

R.M.R. v. Agenzia delle Entrate
Decision Date: May 18, 2021
The Italian Supreme Court held that the right to be forgotten did not trump a legislative obligation to list the history of a property in a public register. An individual who had discharged his debt in respect of a mortgage on immovable property – but had missed some repayments – sought to have that history removed from the public record as he argued it would damage his credit reputation. The Court of Appeals had dismissed the individual’s application, and the Supreme Court confirmed that finding, holding that there was a legal provision governing the collection and publication of details of a property’s history and accepting the individual’s request for his right to be forgotten would have falsified that history. The Court emphasized that a legal obligation for the disclosure of personal information outweighs an individual’s right to be forgotten.

Donlisander Communication S.r.l.s. v. S.A.
Decision Date: May 19, 2020
The Italian Supreme Court ordered the de-indexing of a search result which linked the name of a businessman to a plea bargain into which he had entered. The businessman had approached the Court of First Instance of Pescara, seeking the removal of the article from internet search results. The First Instance Court held that the purpose of the article’s publication to inform had been exhausted by the plea bargain and ordered the removal of the article from the online archive. The Supreme Court held that there was a need to balance the right to be forgotten with the right to inform and held that de-indexing the article from search results – but keeping it in the archive – was a proportionate remedy.

P.M.F. v. RCS Mediagroup
Decision Date: March 27, 2020
The Italian Supreme Court rejected a request to remove a newspaper article detailing the criminal convictions of an Italian businessman from an online news archive. The businessman’s son had sought the removal of the article or the inclusion of an annotation detailing a later absolution of the conviction. The Italian Data Protection Authority and the Court of First Instance of Milan had rejected the son’s requests, and he appealed to the Supreme Court. The Court acknowledged the right of the public to be informed of matters of public interest can be limited by an individual’s right to protection of their personal data, but held that removing the article from the archives would be a disproportionate limitation of right to inform. It held that de-indexing the article from search results would be proportionate.

The Case of a Motorcycle Helmet Obligation for Turban Wearers
Decision Date: July 4, 2019
The Federal Administrative Court of Germany held that an obligation to wear a helmet while motorcycling, even if it interfered with the Sikh religious commandment to wear a turban, was constitutional. After an observant Sikh had unsuccessfully applied to the City of Konstanz for an exemption to the helmet obligation he approached the courts, arguing that his right to freedom of religion had been infringed. The Administrative and Higher Administrative Courts dismissed his application to be granted the exemption. The Federal Administrative Court found that the helmet obligation was a manifestation of the city’s obligation to protect the right to life and physical integrity of the motorcyclist and third parties. It found that the extent of the limitation of the right to freedom of religion was low as an individual merely had to forego riding a motorcycle if they wanted to uphold their religious commitment, and held that the individual’s right to freedom of religion therefore did not outweigh the competing right to life and physical integrity.

Alternative für Deutschland (AfD) v. Federal Minister of Education and Research
Decision Date: February 27, 2018
The Federal Constitutional Court of Germany held that a Federal Minister violated a political party’s right to equal opportunities in political competition by using derogatory statements in a press release published on the ministry’s official website. After an opposition party had organized a demonstration, the Minister had published the press release associating the opposition party with right-wing extremism and radicalization of society and calling on people to stay away from the demonstration. The Court ruled that the right to equal opportunities of political parties under article 21(1) German Basic Law requires state organs to observe the principle of state neutrality, and that the negative description of the party’s event by the minister could negatively influence the behaviour of potential participants in the event. The Court held that the press release contained impermissible defamatory statements that one-sidedly influenced the political competition to the detriment of the party and that the press release therefore violated the party’s right to equal opportunities under art. 21(1) German Basic Law.

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.

Joint Declaration on Freedom of Expression and Gender Justice
This joint statement was issued on May 3, 2022 by the UN Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Cooperation in Europe (OSCE) Representative on Freedom of the Media, the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information and the Organization of American States (OAS) Special Rapporteur on Freedom of Expression. The Joint Declaration sets out important recommendations for States, tech companies, media outlets and other stakeholders. It further offers a series of recommendations to all key stakeholders – States, the private sector, media outlets and civil society – on promoting gender equity and justice both online and offline to ensure the full and effective exercise of the right to freedom of expression. The Joint Declaration hopes to enshrine itself as an intersectional instrument to encourage all stakeholders to tackle the issue of gender inequality.

Unhealthy Silence: Censorship of COVID-19 Reporting and Scrutiny
This report by ARTICLE 19, Coalition for Human Rights in Development and IFEX examines “threats against and censorship of journalists and health workers who reported on or criticized responses to the COVID-19 pandemic  – whether by governments, public development banks or other institutions.” According to the key findings at least 335 people from 35 countries suffered reprisals, “in a general context of strong restrictions on civic freedoms and the active persecution of dissenting voices.” The report closes with a range of recommendations for IFI’s to proactively take to prevent future reprisals as well further restrictions on civic participation, media freedom and access to information.

Post Scriptum

 In case you missed it…

“Protecting the Press: International Standards & Judicial Trends in Cases of Violence Against Journalists,” Columbia Global Freedom of Expression virtual capstone events, in Spanish and English, presenting the final report of our findings on judicial trends around the world relating to violence against journalists are now on our YouTube channel as well as on our event pages below.

The Webinar in Spanish is available here. This event was co-hosted by the UNESCO Chair on Freedom of Expression of the Universidad de los Andes in Colombia who presented the “Toolbox for Ibero-American judicial schools: training of trainers in freedom of expression, access to public information and security of journalists.” Speakers included 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).

The Webinar in English is available here featuring Ramiro Alvarez Ugarte, Senior Researcher, Centro de Estudios en Libertad de Expresión (CELE) moderating a discussion between Rachael KayDeputy Director, IFEX, and Barbora BukovskáSenior Director for Law and Policy, ARTICLE 19.

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