Global Freedom of Expression, Columbia University: Newsletter, w/e 21 May 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

United Kingdom
Lloyd v. Google LLC
Decision Date: November 10, 2021
The UK Supreme Court unanimously held that Google was not liable to pay damages for unlawfully collecting data from millions of Apple iPhone users in England and Wales. The court held that under the Data Protection Act 1998 (DPA 1998), damages cannot be granted without an individual assessment of the damages payable to the aggrieved. Mr. Richard Lloyd had brought a class action suit against Google for illegally tracking the data of millions of iPhone users in England for a brief period of time. While ruling out the argument for a uniform sum of damages for each iPhone user, the Court held that damages for “loss of control” of personal data are unavailable for a breach under the DPA 1998. Additionally, it held that unlawful processing itself, without proving material damage or distress does not warrant a case for compensation under the DPA 1998.

Hong Kong
Hong Kong Journalists Ass’n v. Commissioner of Police
Decision Date: December 21, 2020
The High Court of the Hong Kong Special Administrative Region held that the Court was ill-equipped to deal with factual allegations of violence against journalists by the Hong Kong Police Force for violating their rights to freedom of speech/expression, freedom of the press and publication; freedom of association and assembly,  freedom of the procession and demonstration; and the right and freedom to form and join trade unions and strike under the Basic Law, and the Hong Kong Bill of Rights. Hong Kong Journalist Association brought an application for the Police’s ill-treatment of journalists reporting on the protests that broke out across Hong Kong in June 2019 against the now withdrawn Anti-Extradition Law Amendment Bill 2019. The Hong Kong Police had acted unlawfully in failing to facilitate journalistic activities and hindered such activities during the public order events on and after June 12, 2019. The Court observed that the Police have a negative duty not to hinder lawful journalistic activities and a positive duty to facilitate them. Furthermore, these duties are qualified and subject to reasonable restrictions. However, the Court failed to lay down guidelines on the legal limits and scope of the Police’s responsibility to facilitate, and not hinder, lawful journalist activities.

X v. Privacy Commissioner for Personal Data
Decision Date: August 7, 2020
The Hong Kong Administrative Appeals Board determined that the territorial boundary of the Personal Data (Privacy) Ordinance extended only to data users who have operations controlled in/ from Hong Kong. The Board rejected an Appeal where an individual sought Google LCC to delist links from its search engine results as they led to the news pertaining to his arrest for participation in a protest, thereby infringing his right to be forgotten. While the Ordinance dealt with a specific area of trans-border transfer of data, it did not make any inference to widen its applicability to persons outside of Hong Kong. By application of “the sole and proper” test, the Board held that Google LLC did not qualify as a data user under the Ordinance as no part of the data cycle (i.e., collection, holding, processing, and use) was based out of Hong Kong. Further, the Appellant had failed to point out substantive and convincing materials both within and outside of the Ordinance to support the extra-territorial applicability of the Ordinance. The Board concluded that there was no independent right to be forgotten under applicable laws of Hong Kong.

Spain
Don Segundo v. Google LLC
Decision Date: September 17, 2020
The Third Section of the Administrative Chamber of the Supreme Tribunal of Spain considered that a citizen’s claims regarding his right to be forgotten had no merit, since he wanted Google to remove from its search engine information that was of public interest. Don Segundo’s company was the subject of several online publications on two different internet platforms which criticized its services in the real estate business. Don Segundo wanted Google to take measures to prevent his name from appearing in the search results. The Tribunal considered that the right to be forgotten must be carefully weighed with the right to freedom of information and expression of internet users. Since the information Segundo wanted to take down was still of public interest to consumers and users, the Court decided in favor of maintaining the information indexed in Google’s search engine.

The UN Human Rights Committee
Basnet and Basnet v. Nepal
Decision Date: October 29, 2014
The UN Human Rights Committee unanimously found that journalist Jit Man Basnet suffered the most egregious breaches of his human rights under the International Covenant on Civil and Political Rights (ICCPR). In 2004, Basnet (first Author) who is also human rights lawyer and founder of a newspaper, was unlawfully detained, beaten, and held with inadequate housing, sustenance and incommunicado in a military barracks for over eight months. The case did not probe into the reasons behind this treatment, but the facts suggest that it likely had something to do with his work as a journalist and human rights lawyer. His cousin, Top Bahadur Basnet (second Author) made strenuous efforts to find the first Author without success, and was forced to take over the latter’s leadership role in the family. The Authors did not claim a breach of the right to freedom of expression in this case, but the UN Human Rights Committee found a breach of the first Author’s rights to be free of torture (Article 7 of the International Covenant on Civil and Political Rights, ICCPR), to liberty and security of the person (Article 9), to be treated with humanity and respect while in detention (Article 10), to be recognized as a person before the law (Article 16) and to an effective remedy (Article 2(3) in conjunction with the other breaches). It also found a breach of the second Author’s rights to be free of torture (Article 7) and to an effective remedy (Article 2(3) in conjunction with the breach of Article 7).

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.

The struggle for the realisation of the right to freedom of expression in Southern Africa
This report by the African Declaration on Internet Rights and Freedoms Coalition focuses on the content of the right to freedom of expression and assesses restrictions to the right. Part I presents the international human rights framework on the right to freedom of expression as set out in international treaties and other appropriate resources to distil the key elements of the right. Part II defines the legal position on the circumstances under which the right to freedom of expression may be limited. Part III explores key case studies across Southern Africa that raised serious concerns about existing or prospective laws that would likely stifle the right to freedom of expression. Part IV uses a forward-looking approach to consider what strategies can be used to safeguard the right to freedom of expression and set out recommendations for different stakeholder groups, including state and Private Sector Actors.

A provisional analysis of the impact of telecommunications policy and regulatory frameworks in Africa and COVID-19: A community networks perspective
This article by Josephine Miliza explores how national and regional responses to the COVID-19 pandemic have impacted human rights online. It also examines the widening digital divide and the role telecommunication policy and regulatory frameworks play in closing these gaps. Two preliminary observations inform the article. First, regional state and non-state actors predominantly view the pandemic through clinical lenses while essentially projecting its current and anticipated impact in public health and socioeconomic terms. Second, the responses have been state-centred, resulting in widening the digital divide and violating digital rights, such as the right to information and freedom of expression. It compared inequalities online and offline, especially as it affects work and education and how this is impacted by the digital divide and the potential capacity of community networks in Africa to provide access during and beyond COVID-19.   Lastly, it discusses the importance of bottom-up approaches to fighting the pandemic and the role of community and community-based organisations such as community networks, radios and health centres.

Post Scriptum

Junior Lawyer/Program Assistant Position: Columbia Global Freedom of Expression is recruiting a junior lawyer/program assistant to work with its team and leadership. The ideal candidate will have excellent analytical and organizational skills and the ability to communicate fluently in both English and Spanish. The Junior Lawyer will write case analyses for our Case Law Database on global judicial decisions in English and Spanish and conduct legal research on topics related to freedom of expression as requested by our leadership. Duties also include managing logistics of public and private events, and providing the leadership team with administrative support, including managing time-sensitive deadlines, scheduling requests of high-level individuals, and providing timely status updates and reports as needed. Full job posting here.

Postdoctoral Fellow Position: The Observatory on Social Media at Indiana University, Bloomington is accepting applications for a Postdoctoral Fellow to work with Alessandro Flammini, Filippo Menczer, and collaborators at IU and other universities on sponsored research related to online influence campaigns, at the intersection of machine learning, network, data, and computational social science. The Fellow will be expected to coordinate a team of graduate students, conduct research on significant projects in the areas of online information diffusion and manipulation, present work in progress at professional conferences and sponsored workshops, and assist with the development of funding proposals and scientific papers. Full job posting here.

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