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

● “Who’s Going to Protect Reproductive Rights Online?” by Nora Benavidez for Tech Policy Press discusses the dangerous territory facing women who seek information on reproductive healthcare now that at least 13 US states have criminalized abortion. She observes that many tech companies may have “over-corrected” in altering their content-moderation and user-privacy guidelines, further imperiling women. The article explores several bills before the US Congress to protect online privacy by limiting the types and amount of data companies can collect. She further calls on the Federal Trade Commission to “build a record of the harms related to the trafficking of personal and geolocation information and establish guardrails against unfair and deceptive extractive data practices.” Platforms at the forefront must “collect and archive less user data and establish clear standards for sharing potentially lifesaving reproductive health-care information.”

● “The Protection of Journalistic Sources in Italian Criminal Proceedings: The ‘Trapani Case,’” blog by Italian lawyer Guiseppi Sambatoro discusses the current frameworks that protect journalistic sources in Italy. He uses the recent Trapani case to illustrate that although the Italian Code of Criminal Procedure provides limits to investigative powers to protect the confidentiality of sources, there is no express prohibition under Italian law of wiretapping journalists. This is in contradiction to established case law by the ECtHR, which has prompted the European Court to ask the Italian government to provide answers to a number of specific questions, concerning the clarity and precision of Italian law regarding wiretapping.

● “Fake news law could shield 750,000 politicians and institutions,” wrote Brazilian journalist and Tow Center Fellow Patricia Campos Mello in an article for Folha De S.PauloThe new bill would “extend special treatment to all accounts maintained by such politicians on Facebook, TikTok, Twitter, YouTube, and Instagram, which are used for official statements.” The bill has been advanced by Bolsonaro supporters who hope it will protect them from the “Trump effect.” However, it has won broader support as it also includes “obligations that must be met by accounts of public interest.” According to one politician, “[t]he law is not there to protect deputies. It will just speed up judicial decisions, since these are accounts that, in theory, are of public interest.” Critics say it will be hard to implement and some tech companies and civil society representatives claim the bill equates internet platforms with the media which violates Brazil’s Internet Bill of Rights.

Decisions this Week

The case of an arson attack on the editorial offices of De Telegraaf
Decision Date: September 28, 2020
The Criminal Law Section of the District Court Amsterdam (a court of first instance) sentenced two men to prison for 10 and 4.5 years respectively. The men were convicted for setting fire to the editorial offices of Dutch newspaper De Telegraaf and for membership in a criminal organisation focused on car crime. De Telegraaf was awarded over 200,000 Euros in material damages. The Court stressed the vital importance of press freedom in a democratic society and held that through their actions, both defendants had attacked press freedom.

The case of the online harassment of Dutch NRC columnist C. Gargard
Decision Date: November 17, 2018
The Criminal Law Section of the District Court Amsterdam (Court of First Instance) convicted 24 defendants for the online harassment of columnist C. Gargard of the Dutch newspaper, NRC. On 17 November 2018, C. Gargard received 7,600 messages after posting a livestream of demonstrations against “Zwarte Piet” (Black Pete) in Amstelveen. Black Pete is a controversial figure in Dutch Christmas festivities who helps “Sinterklaas” (a Dutch amalgamation of Saint Nicholas and Santa) deliver gifts, and whose appearance is experienced as a vestige of slavery. After investigating around 200 of these messages, the public prosecutor filed charges against 25 suspects. The Court held that 24 defendants were guilty of incitement of assault, murder and manslaughter, discrimination and/or of defamation. The court noted that racial discrimination is unacceptable and that people from all social and cultural backgrounds should be able to enjoy their civil rights and feel safe and accepted in the Netherlands.

European Court of Human Rights
Telegraaf Media Nederland Landelijke Media v. the Netherlands
Decision Date: November 22, 2012
The European Court of Human Rights held that the Netherlands had violated the rights of a newspaper company and of two journalists under Article 8 (private life) and Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR). The newspaper had published several articles, co-written by the two journalists, which reported on the contents of leaked documents from the Dutch secret services (“AIVD”) about completed investigations into the (network of) drugs and weapons dealer Mink K. Between 1997 and 2000. As a response to the publications, the AIVD started an investigation into the journalists and used surveillance measures against them to discover the leak from within the secret services. The newspaper and the journalists, however, complained that measures were in fact aimed at uncovering their journalistic source. With regard to the surveillance measures, the Court accepted that it had been one of the AIVD’s purposes – albeit not the main one – to identify the person(s) who had supplied the secret documents to the journalists and concluded that the statutory basis invoked did not provide appropriate safeguards against such targeted surveillance of journalists (indirectly) aimed at discovering their sources. There had accordingly been a violation of Article 8 in conjunction with Article 10 ECHR. With respect to the surrender order, the Court ruled that the order had lacked “relevant and sufficient” reasons and thus failed the “necessary in a democratic society” test to justify the interference with Article 10 ECHR.

Gongadze v. Ukraine
Decision Date: November 8, 2005
The European Court of Human Rights concluded that Ukraine violated Articles 2 (right to life), 3 (prohibition of torture) and 13 (right to an effective remedy) of the European Convention on Human Rights in respect of the applicant’s deceased husband. The applicant’s husband, Mr Gongadze, was a journalist who disappeared in September 2000. In November 2000, Mr Gongadze’s relatives learned from a short news article that an unidentified, decapitated body had been found. On examining the body, the relatives identified jewelry and marks of an injury corresponding to that of Mr Gongadze. From that date on, it was alleged that the prosecutor had begun to actively impede the investigation. The Court found a violations of Article 13 due to the failure to properly investigate the case and an inability to claim for criminal injury under the national law. The Court further considered that the lack of information provided to the deceased’s relatives caused serious suffering which amounted to degrading treatment contrary to Article 3 ECHR.

Kiliç v. Turkey
Decision Date: March 28, 2000
The European Court of Human Rights concluded that the Turkish authorities “failed to take reasonable measures available to them to prevent a real and immediate risk” to the life of a journalist (the applicant’s brother) working for the Turkish daily newspaper Özgür Gündem. The Court also found that the authorities failed to carry out an effective investigation into the circumstances surrounding his death. The journalist was killed in 1993, despite his urgent requests for protective measures because of attacks and killings aimed at persons working for Özgür Gündem. The applicant argued that the Turkish authorities violated (inter alia) Article 2 of the European Convention of Human Rights (ECHR), which lays down the right to life, and that they did not carry out an effective investigation into the death of his brother. The Court considered that the authorities were aware of the particular and real and immediate risk to his life that the journalist was facing. The government did not take the measures that could be reasonably expected of them to avoid this risk and thus did not fulfill its positive obligation under Article 2 ECHR. Moreover, the investigation file had an inactive status and no inquiries were made as to the possible targeting of the journalist because of his work for Özgür Gündem. This rendered the investigation ineffective, together with other circumstances.

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.

Informing the Disinfo Debate: A Policy Guide for Protecting Human Rights
This joint report by Eliška Pírková, Filip Lukáš, Eva Simon, Franziska Otto, and Diego Naranjo builds on their 2018 report “Informing the ‘Disinformation’ Debate.” The updated 2021 report examines platforms’ business models which reap profits by “manipulating people’s economic and political choices,” and thereby violating their fundamental rights. Some of those strategies include “surveillance-based advertisement, political advertising, amplification of disinformation online via content recommender systems and personalisation of news content.” The report concludes with a range of policy recommendations addressed to the EU co-legislators.

Post Scriptum

● “Freedom of Assembly in the COVID-19 Pandemic and the Limits of its Restraints in the Context of the Experiences of the Republic of Poland and the United States of America,” by leksandra Syryt, Bogusław Przywora, and Karol Dobrzeniecki, in Bialystok Legal Studies 2022 vol. 27 No 2, pp. 55-73. The aim of the study is to illustrate the problem of freedom of assembly during the COVID-19 pandemic against the background of the experiences of the Republic of Poland and the United States of America. This freedom is provided for in the constitutions of both states, which implies that public authorities are obliged to implement it also in COVID-19 conditions. Hence, the question arises as to whether, and if so to what extent, public authorities in Poland and the United States (countries belonging to the United Nations and obliged to consider the standards of human rights protection resulting from international law) applied solutions realising freedom of assembly in the conditions of COVID-19. The authors try to determine the extent of the impact of legal measures applied by public authorities in both countries on the realisation of freedom of assembly and the public reaction produced by these measures. The choice of such a context for assessment was justified by differences in the legal culture of the countries being compared, the structure of the state, and the approach of both the public authorities and the society to freedom of assembly.

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