Global Freedom of Expression, Columbia University: Newsletter, w/e 1 July 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

Colombia
Torres Palacios v. Vice President of the Republic
Decision Date: May 21, 2021
The Colombian Constitutional Court held that the Vice President of the Republic’s public statements or opinions do not belong exclusively to the scope of freedom of expression but also to how she fulfills or exercises her duties towards the citizens. Her statements are covered by the burdens of truthfulness and impartiality, except when she defends her management, responds to critics, or expresses opinions on a political issue. A Colombian citizen filed the application to protect constitutional rights against the Vice President after the Vice President published a post on her Facebook and Twitter accounts in which she consecrated the country to the Lady of Fátima. The Court held that the Vice President of the Republic violated the principle of secularism on which the Colombian state is based. It urged her to avoid linking her personal opinions, and especially expressions of her faith, to the institution she represents. Moreover, she  must respect the principle of secularism and the guarantee of the fundamental rights to freedom of religion and worship and freedom of conscience.

European Court of Human Rights
Yuriy Chumak v. Ukraine
Decision Date: March 18, 2021
The European Court of Human Rights (ECtHR) ruled the government of Ukraine interfered with the Applicant’s rights to freedom of expression for denying the Applicant access to information requested about the titles, numbers, and dates of Presidential decrees labelled restricted. Yuriy Chumak, a journalist, member of a non-governmental organization and the deputy editor of the organization’s bulletin “Human Rights”, made a written request to the Ukrainian authorities for information about presidential decrees marked as “confidential”. The Ukraine authorities denied the applicant access to the requested information aand various domestic courts dismissed his further appeal challenging the denial. In a 5:2 decision, the ECtHR held that the domestic authorities and the various courts failed to demonstrate how the interferences with the Applicant’s rights were necessary and proportionate. The lack of analysis conducted by the national courts revealed a “procedural dysfunction” which precluded further analysis on the lawfulness of the restrictions and the legitimacy of the aims. The dissenting Judges argued that Yuriy Chumak’s application was manifestly ill-founded.

India
Kishorchandra Wangkhem v. District Magistrate, Imphal West
Decision Date: April 8, 2019
The High Court of Manipur in India released on bail, the journalist, Kishorchandra Wangkhem, who was detained under Section 3(2) of the National Security Act, 1980 (NSA). The Court found that the pictures and video clips that were posted by him on Facebook that formed the basis for arrest and detention were not supplied to him and therefore, the detention order was vitiated. Under Section 3(2) the NSA, a person can be detained at the satisfaction of the government to prevent any person from acting in a manner prejudicial to national security or public order. Kishorchandra Wangkhem was arrested on August 09, 2018 for defamation and statements promoting enmity between classes by the Manipur police for pictures with captions he posted on Facebook criticising the government two days prior. On the next day, he was released on bail. He was subsequently arrested again, and then detained on the ground that he was a habitual offender who committed offences that “cause fear and alarm to the public”. To ensure that he doesn’t commit these offences again, an “alternative preventive measure” had to be taken. The Manipur High Court found that the detaining authority had not supplied Wangkhem the copies of Facebook posts and compact disc containing the videos uploaded by him, thereby preventing the journalist from making an effective representation against the detention order. Thus the Court directed Wangkhem to be released.

Spain
Google v. Agencia Española de Protección de Datos
Decision Date: April 23, 2019
Spain’s National High Court reversed a ruling of Agencia Española de Protección de Datos (AEPD) in relation to three complaints alleging that Google was communicating its de-indexed search engine results to third parties. In 2016, the AEPD had imposed a fine of 150,000 Euros on Google on account of its serious breach of the Data Protection Act, each time it disclosed information in relation to queries pertaining to removal of content from search engine pursuant to requests. The AEPD also held that as per Article 29 Working Party Guidelines on Consent in relation to protection of individuals with regard to the processing of personal data, the search engines did not have a legal obligation to inform web administrators of the reasons for deindexing and removal of content from the search engine. However, when the case reached the National High Court, it concluded that the procedure adopted by the AEDP was not the ideal legal mechanism to establish a general position on a generic type of  data processing operation.

Google Inc. v. AEPD
Decision Date: May 11, 2017
The First Section of the Administrative Chamber of the National Audience of Spain annulled a decision issued by Agencia Nacional de Protección de Datos (AEPD) that ordered Google to limit or block access to opinions on the Internet through a web search when using a well known doctor’s name. The contested information referred to comments on online forums that criticized one Doctor Edmundo. Edmundo requested the AEPD to block his personal data, which the AEPD granted. Google initiated a legal action seeking the annulment of this decision. The First Section of the Administrative Chamber of the National Audience of Spain held that in this case, when weighed against the right to be forgotten, freedom of expression prevailed since web users and potential patients have a legitimate interest in accessing information about a prominent doctor in the medical fieldItaly
The Case of Yahoo!Emea Limited and Yahoo!Italia s.r.l. v. Italian Data Protection Authority
Decision Date: February 8, 2022
The Italian Supreme Court reversed the ruling of the Court of First Instance of Milan, which had upheld the legality of a measure issued by the Italian Data Protection Authority against Yahoo! search engine. On the basis of Mr. D.B.C.’s right to be forgotten, the measure had ordered Yahoo! to de-reference and delete the cache copies of internet content related to him. The impugned content referred to a judicial proceeding in which he was involved but that, in his submission, was no longer of interest to the general public.The Supreme Court considered, instead, that the removal of the cache copies would be disproportionate and that de-referencing alone was sufficient.

Colombia
Restrepo Barrientos v. El Colombiano Newspaper
Decision Date: May 14, 2021
The Constitutional Court of Colombia ruled that a newspaper violated the fundamental rights of a journalist including non-discrimination against women, the right to live without violence, the right to work and the right to petition, after she was allegedly sexually harassed by a co-worker. Through its actions and omissions, the newspaper failed in its duties to prevent, investigate and punish the violence that she suffered, as the newspaper did not have the necessary gender sensitive policies or procedures in place. The Court analyzed the phenomenon of sexual violence against women journalists and its impact on self-censorship. For the Court, the State and individuals have clear obligations to prevent, investigate, prosecute and punish violence and/or discrimination based on gender, particularly in the field of journalism and the media.

India
Gautam Navlakha v. National Investigation Agency
Decision Date: May 12, 2021
The Supreme Court of India refused to grant “default bail” to journalist and activist Gautam Navlakha, who was arrested on grounds of “plotting” a violent attack during a commemoration ceremony and for his “Maoist” links. Navlakha neither attended the commemoration, nor took part in the violence but was arrested 8 months later. After having been held in house arrest, police custody, and judicial custody cumulatively for over 90 days, he applied for default bail. Under section 167 of the Criminal Procedure Code, 1973, the maximum time period for which the accused can be detained is 90 days, after which they have to be released on “default bail”. Regardless, bail was denied by the court of first instance, the court of appeal and finally by the Supreme Court of India. The Supreme Court held that while house arrest can be counted in computing the 90 day period of “custody” to determine eligibility for default bail, in Navlakha’s case the order of house arrest was passed by a High Court and not by a Magistrate, and therefore must be discounted. Since the circumstances and backdrop against which house arrest was ordered by the High Court, were materially different from what Section 167 of the Criminal Procedure Code contemplates, the Supreme Court refused to recognize and count Navlakha’s period of house arrest as “detention”, and he was denied bail.

Brazil
Wilker Aparecido Mendes Fernandes v. Google Brazil Internet Ltda. and Goshme Internet Solutions Ltda
Decision Date: November 22, 2016
The Appellate Court of São Paulo, Brazil held that the right to be forgotten did not apply in a case where an individual sought the removal of an adverse judicial decision as the individual’s image, honor or personality was not harmed. After an individual had been dismissed from his job he brought a labor suit against his former employer. The suit was unsuccessful and the judgment was accessible on a legal information website, through Google searches (as well as on the Court’s website itself). The individual then brought an application seeking the removal of the judgment from the legal information website and Google searches. The Court of First Instance São Paulo held that search engines do not have the duty of monitoring content and that there was nothing illegal in the information displayed on the legal information website. The Appellate Court agreed with the lower court’s reasoning, and emphasized the constitutional principles of publicity and transparency which require that judicial decisions be accessible.

SMS v. Google
Decision Date: November 10, 2016
The Brazilian Superior Court of Justice held that Google was not obliged to remove all search results linked to an individual’s name. After an individual filed a suit requiring Google to remove all results as they may lead to nude photographs of her, the Court of First Instance dismissed the case on procedural grounds – that Google was not a legitimate party to the suit. However, the Court of Second Instance then found in her favor, ordering the removal of the links on the grounds that the content was not of public interest and of an intimate nature. The Supreme Court of Justice agreed that Google was not a legitimate defendant, and recognized the absence of an obligation on search engine providers to remove search results of a particular term, expression or photo, without a specific indication of the content’s location.

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.

Digital freedom: Building an Internet Infrastructure that Protects Human Rights
This report by ARTICLE 19 and the Danish Institute for Human Rights “examines the outcomes of a three-year pilot project to strengthen human rights due diligence and corporate responsibility among a critical subset of Internet infrastructure providers: registries and registrars. The pilot project carried out in partnership with three Internet registries and registrars – Stichting Internet Domeinregistratie Nederland (SIDN), Blacknight, and Public Interest Registry (PIR) – was designed to produce a publicly-available model for assessing the particular human rights impacts and risks of Internet infrastructure providers, apply the tool to develop recommendations for each partner company, and educate staff.”

Social Media Councils: One Piece in the Puzzle of Content Moderation
This report by ARTICLE 19 recommends the establishment of a working group to consider the implementation of a Social Media Council (SMC), a proposed multi-stakeholder mechanism for the oversight of content moderation on social media. The SMC would aim to “review individual content moderation decisions made by social media platforms based on international standards on freedom of expression and other fundamental rights; provide general guidance on content moderation practices to ensure they follow international standards on freedom of expression and other fundamental rights, and act as a forum where stakeholders can discuss recommendations; use a voluntary-compliance approach to the oversight of content moderation that does not create legal obligations.”

Post Scriptum

● Appeal lodged with the Supreme Court in Belgian SLAPP-case. Following up on last week’s post “News site acquitted for stalking and breach of privacy in Belgian SLAPP-case,” by Dirk Voorhoof, it has been reported that business man Erik Van der Paal lodged an appeal with the Supreme Court (Court of Cassation) against the Antwerp Court of Appeal judgment of 9 June 2022. The Court of Appeal judgment found the legal actions taken by Van der Paal against news site Apache‘s chief editor and its journalist Stef Arends for alleged violation of privacy and stalking to be an abuse of process. A judgment in a criminal case widely considered to be “a boost for journalistic freedom and investigative reporting.” It is now up to the Supreme Court to affirm the abusive nature of SLAPPs (Strategic Litigation Against Public Participation).

● Will Americans finally see bipartisan federal privacy legislation? The Brookings Institute TechTank Podcast explores the current draft of the American Data Privacy and Protection Act before the US Congress and its implications for future privacy protections. Cameron F. Carey provides significant background material on the Act in his post Endgame On: The narrowing path ahead for privacy legislation. Carey writes that “the promising draft includes civil rights protections proposed by key civil rights organizations limiting the use of personal information; significant limits on data collection, use, and sharing of personal information that will affect existing data practices; a private right to sue for injuries caused by privacy violations; as well as significant preemption that still preserves much state privacy law developed over more than a century.”

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