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

● Different systems, similar challenges: humor and free speech in the United States and Europe. This article published by Alberto Godioli and Laura E. Little in the journal HUMOR conducts a comparative discussion of humor-related jurisprudence from the US and Europe, mostly (but not exclusively) focusing on two landmark cases – namely Hustler v. Falwell (US Supreme Court, 1988) and Vereinigung Bildender Künstler v. Austria (European Court of Human Rights, 2007). In particular, their analysis foregrounds two aspects: 1) How courts deal with the complex relations between humor, exaggeration and factual reality; 2) The role of objective harm (as opposed to subjective offence) in distinguishing between lawful and unlawful expression, and how the subjectivity of humor interpretation can undermine this criterion. They argue that insights from literary and linguistic theories of humor – from Simpson’s work on satirical discourse to Attardo and Raskin’s General Theory of Verbal Humor – can set the basis for a more fine-grained and systematic approach to humor across different judicial systems.

● A Guide on Using International Freedom of Expression Norms in Domestic Courts. This Guide published by The Centre for Law and Democracy provides an overview of how international law can be used to inform domestic litigation, with a focus on the issue of freedom of expression. After providing a brief overview of the sources of applicable international law norms, it provides an overview of how different jurisdictions give effect to international norms while offering practical tips for deciding how and when to invoke those norms. The Guide then describes the ways international standards can be used as a tool to inform statutory and constitutional interpretation. The Guide concludes that although different legal traditions have adopted varied approaches to incorporating international norms domestically, regardless of how this is done, international standards can play a meaningful role in domestic human rights litigation. The Guide is available in English, Spanish and French.

● Save the Date: European Anti-SLAPP Conference October 20, 2022. The conference hosted by The European Center for Press and Media Freedom (ECPMF) and the Coalition Against SLAPPs in Europe (CASE) will examine European and national political and other initiatives against SLAPPs, to bring to light its impact on journalism and to discuss available financial and practical support for journalists targeted by SLAPPs. The conference will bring together CASE coalition members, SLAPP victims, experts, journalists, media professionals, lawyers, policymakers, free speech advocates, academics, ombudspersons, judges, and civil society representatives. Winners will also be announced of the second European SLAPP Contest, which awards powerful individuals and corporations in six different categories. This hybrid conference will offer in-person participation in Strasbourg and will also be live streamed. View the agenda and registration will open on 8 August for  Online and in-person participation from the conference website.

Decisions this Week

European Court of Human Rights
Simić v. Bosnia and Herzegovina
Decision Date: May 17, 2022
The European Court of Human Rights found violation of the freedom of expression under Article 10 of the European Convention on Human Rights of the applicant (a lawyer). The applicant was fined by the domestic courts for insulting an appellate court by narrating an old joke about a professor and his student and comparing the lower-instance court with that professor. The Court opined that this language, albeit sarcastic or caustic, still enjoyed protection under Article 10. Also, the impugned comments were made in the appeal, so they were not publicly disseminated and they aimed at the manner of the court’s conduct not on a judge’s personality. Hence, the domestic courts failed to examine these aspects and they did not provide relevant and sufficient reasons for the interference.

Žugić v. Croatia
Decision Date: May 31, 2011
The European Court of Human Rights ruled, by a majority, that the imposition of a fine for contempt of Court did not violate the Applicant’s right to freedom of expression on the ground that the restriction was provided for by law; it pursued a legitimate aim, and was necessary in a democratic society. During appellate proceedings relating to an unpaid water supply bill, the Applicant Mr Žugić used words that implied that he disrespected the Court and questioned the competence of the first-instance court judge. In a 4:3 decision, the ECtHR held that the Applicant’s words implied that the Judge was ignorant and incompetent, which amounted to an insult and disrespect to the Court. The Court held further that the Applicant could have presented his arguments without using improper language. The fine imposed on the Applicant was low, as it was the minimum penalty provided for under domestic law. The dissenting Judge argued that the Applicant’s language formed a part of his grounds of appeal; he used strong words to describe what had happened during the hearing and did not go beyond acceptable limits.

Case of Armoniene v. Lithuania
Decision Date: November 25, 2008
The Second Section of the European Court of Human Rights upheld that by setting legislative limitations on the damages awarded, Lithuania had failed to sufficiently protect the applicant’s right to private and family life under Article 8 of the European Convention of Human Rights (“the Convention”) in light of “outrageous abuse of press freedom”. In 2002, a major Lithuanian newspaper disclosed that the applicant’s husband was HIV-positive, and alleged that he had two children with another woman who also had the disease. The domestic courts agreed that his privacy had been violated and awarded him the maximum sum for non-pecuniary damage under domestic law. However, the applicant appealed against this decision by arguing that the adjudged sum of money was inadequate and that there was a violation of their right to an effective domestic remedy for the infringement of right to privacy. The Court found that there was no public interest in publishing information about the husband’s HIV-positive status since disclosure of such information led to his family’s humiliation and social ostracism. Hence, while striking a balance between right to privacy and right to freedom of expression, the balance here lay in favor of right to privacy. The Court concluded that by limiting the amount of non-pecuniary damages awarded, the State had failed to redress the suffering of the applicant and did not provide her with the protection of privacy she could have legitimately expected. As a result, the Court awarded her the sum of EUR 6,500 (EUR 3,604 more than the maximum sum allowed in such circumstances under Lithuanian legislation) as sufficient compensation for the violation of her right to private and family life.

Brazil
De Melo v. Google Brasil Internet Ltda.
Decision Date: October 27, 2016
The São Paulo State Court of Appeal held that Google was not obliged to remove search results related to legal proceedings of an individual. The individual had been summarily acquitted on criminal charges when the criminal court held there was no evidence for the charge. He unsuccessfully applied to the first instance court for the removal of all references to his name from searches of the criminal proceedings and then appealed the decision. The Court held that the dissemination of the content was lawful due to the public nature of the criminal lawsuit, and that search engines were not liable for third-party publications which they display as a search result for specific terms.

De Queiroz v. Google Brasil Internet Ltda.
Decision Date: April 25, 2016
The State Court of Appeals of São Paulo, Brazil held that an individual who had obtained criminal rehabilitation had a right to be forgotten, and ordered the de-indexing of content about his criminal conviction. The individual had requested that Google de-index specific URLs mentioning his criminal conviction from their search results linked to his name. The lower court had found in the individual’s favor, and Google then appealed. The Court recognized the right to be forgotten in Brazil but stressed that a search engine is only obliged to remove content when it has been ordered so by a court, and that a court will only order the removal of URLs specified by a plaintiff.

Melillo v. Google Internet Brasil Ltda.
Decision Date: April 5, 2016
The Appellate Court of São Paulo held that an actress could not enjoy the right to be forgotten based on her previous conduct. A model had sought the removal from Google of all search results linked to her stage name as they were linking to pornographic images. The Court of First Instance ordered the removal of the search results on the grounds that the right to be forgotten should prevail over the right to information in order to preserve personality rights, such as image, honor, intimacy, and privacy. On appeal, the Court did not examine the right to information of freedom of expression, finding that the actress had not been able to demonstrate that she regretted “past behaviors related to pornography.”


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.

Gender Approaches to Cybersecurity: Design, Defence and Response
This report published by the United Nations Institute for Disarmament Research discusses the relevance of gender norms to cybersecurity. To do this it “draws on existing research, supplemented by stakeholder and expert interviews, to assess gender-based differences in the social roles and interaction of women, men and non-binary people of all ages reflected in the distribution of power (e.g. influence over policy decisions and corporate governance), access to resources (e.g. equitable access to education, wages or privacy protections), and construction of gender norms and roles (e.g. assumptions regarding victims and perpetrators of cyber-facilitated violence).” One of the main goals of the report is to “propose a new cyber-centric framework to understand better how gender shapes specific cybersecurity activities.”

Post Scriptum

● Boundaries of Expression Pegasus podcast: The spy in your pocket. The latest episode of ARTICLE 19’s Boundaries of Expression podcast series, recorded on 21 June, Jo Glanville talks to Ronald Deibert, founder and director of The Citizen Lab, about the technologies that turn your mobile phone into a spy in your pocket.  Deibert talks about the growth of the spyware industry and the fast-moving innovations that mean people targeted can be completely unaware of violations against their privacy. He points out that democracies are among the clients for these technologies and explains what role international human rights bodies can play in stemming violations and calling governments to account.

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