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

● “Cybercrime treaty must enhance human rights protections.” ARTICLE 19 has published a brief to guide ongoing negotiations for an international convention on cybercrime. Their analysis observes that the reliance on the Council of Europe Convention on Cybercrime (Budapest Convention) as a benchmark for addressing criminal sanctions in cyberspace is ill-advised as “it does not sufficiently protect a range of human rights, such as privacy and freedom of expression,” despite some positive aspects. The brief identifies a range of issues that should not be included in any new convention, as well recommends that “due to the profound implications of cybercrime legislation for freedom of expression, at the maximum, only a few core offences from the Budapest Convention should be considered, namely those with clear requirements of ‘serious’ harm and ‘dishonest’ intent.”

● Upcoming Event: Our Immersive Digital Future: How Extended Reality May Affect International Relations. Join George Washington University’s Digital Trade and Data Governance Hub for a free two-day hybrid event to discuss how Immersive spatial computing technologies, such as augmented reality and virtual reality, may affect global governance and international relations. Speakers will address three primary questions including how these technologies may affect key issues and institutions of international governance such as national security, democracy, human rights, and international economics; how they may challenge the roles of the nation state, corporations, and individuals; and how some countries are already adapting to the opportunities and risks posed by them. June 9-10, 2022. For more information and to register, see the Conference Website.

● Do We Really Want Sanitized Platforms? In this podcast by Tech Policy Press, Justin Hendrix speaks with Rachel Griffin, a PhD candidate and lecturer at Sciences Po Law School who recently published a new paper in the Journal of Intellectual Property, Information Technology and E-Commerce Law titled “The Sanitised Platform.” The paper employs thinking from feminist legal scholar Vicki Schultz about US law on sexual harassment in the workplace as a framework to critique approaches to content moderation and social media regulation.

Decisions this Week

Russian Federation
Roskomnadzor v. Meta
Decision Date: February 15, 2022
The Tagansky District Court of Moscow upheld a Magistrates Court order which had held that Meta Platforms Inc. had repeatedly failed to remove access to information that they had been instructed to remove under legislation of the Russian Federation. Roskomnadzor – Russia’s Federal Service for Supervision of Communications, Information Technology and Mass Media – sent notices on information access restriction to Meta which concerned information prohibited in Russia – content considered harmful to minors and inaccurate socially significant information – in Facebook and Instagram posts. Roskomnadzor compiled a protocol on an administrative offense based on Meta’s repeated failure to comply with its requests. The Court ruled under Part 5 of Art. 13.41 of the Code of Administrative Offenses of the Russian Federation (“repeated perpetration of an administrative offense provided for by parts 1 or 2 of the article”), and imposed a fine of more than 1.9 billion rubles (around USD$27 million at the time).

Roskomnadzor v. Google LLC
Decision Date: January 17, 2022
Magistrates’ Court №422 in the Tagansky District of Moscow, Russia, held that Google LLC repeatedly failed to restrict Internet search access in accordance with the legislation of the Russian Federation. Roskomnadzor – Russia’s Federal Service for Supervision of Communications, Information Technology, and Mass Media – conducted a control procedure, which revealed that the Google search engine did not comply with the Federal State Information System’s requirements to restrict access to the web pages subject to restrictions on the territory of Russia. Roskomnadzor compiled a protocol on an administrative offense. The Court found in favor of Roskomnadzor and that stressed Google’s operations in Russia oblige the company to comply with the Federal State Information System’s requirements. The Court ruled under Part 2.1 of Article 13.40 of the Code of Administrative Offenses of the Russian Federation (“repeated failure to restrict access to the resources that had to be restricted in accordance with the legislation of the Russian Federation”), and sentenced Google to an administrative fine of four million rubles (around USD$52.8 thousand at the time).

Roskomnadzor v. Twitter
Decision Date: May 17, 2021
The Tagansky District Court of Moscow, Russia upheld an order from the Magistrates Court №422 in the Tagansky District which had held that Twitter Inc. failed to remove access to those Internet information resources that had to be removed in accordance with the legislation of the Russian Federation. Roskomnadzor – Russia’s Federal Service for Supervision of Communications, Information Technology, and Mass Media – had sent notices to Twitter, requesting it remove access to Twitter posts that called for participation in unauthorized rallies. Roskomnadzor compiled a protocol on an administrative offense based on Twitter’s failure to comply with its requests. The Court held that Twitter had failed to delete the requested information and there was an obligation to do so under law. The Magistrates Court had also found Twitter guilty of two more administrative offenses in two separate cases, and, in total in the three cases, the Court imposed fines in the amount of 8.9 million rubles (around USD$117.4 thousand at the time).

India
Elangbam Ranjita v. State of Manipur
Decision Date: July 23, 2021
The High Court of Manipur, India released journalist Kishorchandra Wangkhem who had been detained for the second time under National Security Act, 1980 (NSA) for a social media post critical of the government. On a petition filed by Wangkhem’s wife, the High Court held that his continued incarceration would violate the right to life and personal liberty guaranteed to him under Article 21 of the Indian Constitution. The journalist along with activist Erendro Leichombam, was arrested on May 13, 2021 for Facebook posts they had put up after the death of Manipur Bharatiya Janata Party chief Saikhom Tikendra Singh due to COVID-related complications. The post criticised the ruling party’s approach to COVID-19 and their support of cow dung and cow urine as a cure for COVID-19. Later on May 17, 2021, the Chief Magistrate, Imphal granted them bail, but before they could be released, the government once again invoked the NSA. On July 19, 2021, the Supreme Court of India ordered the release of activist Leichombam, in connection with his arrest under the NSA, saying that the “continued detention of the petitioner would be a violation of the right to life and personal liberty under Article 21 of the Constitution.” Subsequently, the Manipur High Court in Wangkhem’s case, ordered his release on the ground of parity with activist Leichombam’s case who put up similar Facebook posts and was released by the Supreme Court.

Jagisha Arora v. Uttar Pradesh
Decision Date: June 11, 2019
The Supreme Court of India, the apex court in the country, released on bail the journalist, Prashant Kanojia who was arrested by the Uttar Pradesh Police for a tweet he posted about a woman who professed her love for the Chief Minister of Uttar Pradesh, Yogi Adityanath and claimed they had been communicating . Proceedings were initiated against him under sections 500 (for defamation) and 505 (statements conducive to public mischief) of the Indian Penal Code, 1860; also sections 67 of the Information Technology Act (for publishing or transmitting obscene material in electronic form). Seeking the journalist’s release, Prashant Kanojia’s wife, Jagisha Arora approached the Supreme Court of India in a Habeas Corpus Petition.  The Supreme Court held that an individual’s rights under Article 19 (right to freedom of expression) and Article 21 (right to life), are non-negotiable, and granted Prashant Kanojia bail. The court, however, made it clear that this bail order was “not to be construed as an approval of the posts/tweets in the social media.”


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.

Internet Shutdowns and Human Rights
This report by the Association for Progressive Communications (APC) and Derechos Digitales
outlines disruptions of communications during the past five years – ranging from complete national internet shutdowns to regional internet shutdowns to social media shutdowns – in four regions (Africa, Asia and the Pacific, Latin America and the Middle East and North Africa), based on the work and reports of APC members. It further documents the impacts of internet shutdowns, focusing on the following areas: The gender impact of internet shutdowns; the impact of shutdowns on media and journalism; the economic impact of internet shutdowns; the impact of shutdowns on education; social and psychological impacts and impacts on human rights. The third section explores initiatives to promote internet connectivity, and the report concludes with recommendations for states.

Dialling in the Law: A Comparative Assessment of Jurisprudence on Internet Shutdowns
This report by Aayush Rathi, Arindrajit Basu and Anoushka Soni highlights the jurisprudence across the global South on the legality of internet shutdowns. It addresses the growing challenge of government-mandated disruptions of internet access worldwide, mainly under the guise of safeguarding public order and upholding national security interests. The report also considers how internet access restriction has been used to quell dissent, particularly during moments of intense political turmoil such as protests, anniversaries of key historical events, civil unrest, and elections.

Post Scriptum

● “Procedural rights as safeguard for human rights in platform regulation” by Judit Bayer in Policy and Internet looks at how platforms act as proxies for state authority in content governance and examines how procedural fairness could ensure a safety zone to protect freedom of expression. The article observes that “[t]he current state of the play is to push the responsibility of deciding about questions related to freedom of expression on social media platform providers. In the triangle of freedom of expression social media platforms enjoy a disproportionate power to the detriment of the other two actors: authorities and individuals.”

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