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

● “Lethal force behind a veil of legality”: Executions, repressive media laws, and protests across Asia. IFEX’s regional editor Mong Palatino, has published a July Round Up for Asia-Pacific based on IFEX member reports and news from the region. It has updates from India on campaigns to repeal the Information Technology Rules 2021 which allow for restrictions on political speech and threaten to overturn end-to-end encryption. The Round Up further found that “[a]ttacks against the media did not stop even after a change in government in Sri Lanka, Pakistan, and the Philippines,” and “the junta in Myanmar has resorted to executing anti-coup activists.” On a positive note, The International Court of Justice (ICJ) rejected the objections raised by Myanmar against the Genocide case filed by The Gambia in relation to the systematic persecution of the Rohingya which will now allow the case to move forward.

● How media capture left Hungarian voters vulnerable to disinformation. The International Press Institute has an article published in collaboration with the Hungarian foundation HVG which presents research “showing how media capture in Hungary allowed false claims from the government to spread unhindered.” The research “sought to find out how effective political propaganda is and to what extent it succeeds in manipulating the masses.” According to the article, one third of Hungarian citizens rely solely on government controlled media for their information, effectively allowing Hungarian Prime Minister Viktor Orban to control the political narrative. The article compares the situation in Hungary to that of the U.S. and the enduring support for former U.S. President Donald Trump, and contrasts it with the fall of Boris Johnson in the U.K.

● Newly Released Office of Legal Counsel Opinions from 1952-1971 Illuminate Government Policy During Civil Rights Era. The Knight First Amendment Institute at Columbia University just published for the first time a set of Office of Legal Counsel (OLC) memos authored between 1952 and 1971 pertaining to desegregation policies and civil rights law in the U.S. The Institute obtained the documents as part of a landmark legal settlement in a case seeking disclosure of OLC opinions written more than 25 years ago. The Institute has already published hundreds of other OLC opinions obtained through the settlement, and it expects to publish additional opinions over the coming weeks.

Decisions this Week

The Case of Renate Künast
Decision Date: December 19, 2021
The Federal Constitutional Court of Germany held that a politician was entitled to receive information about Facebook users who had posted defamatory statements about her. The politician had been subjected to offensive and disparaging statements on Facebook, and sought an order from the ordinary courts to obtain the related user data under the German Telemedia Act. The ordinary courts issued orders only in respect of the users whose statements the courts held constituted “punishable insult”. The politician then approached the Federal Constitutional Court. The Court held that the ordinary courts’ decisions had failed to recognize the scope and significance of the politician’s general right of personality and had not correctly balanced the right to freedom of expression with that right of personality. The Court held that the decisions had infringed the politician’s constitutionally-protected right to personality and set them aside, remanding the case back to the Berlin Appellate Court.
Unconstitutionality of Legislative Decree 1237 (Extortion Felony)
Decision Date: June 2, 2020
The Constitutional Court of Peru dismissed a claim that a Legislative Decree, which altered the definition of extortion, infringed a number of fundamental rights and freedoms, and was hence unconstitutional. Legislative Decree 1237 modified article 200 of the Criminal Code by broadening the definition of extortion beyond the traditional requirement of “an undue economic benefit or advantage” to include obtaining “an advantage of any other kind.” The applicant argued that the definition was more applicable to coercion rather than to extortion and could imply an infringement of the right to protest and its related rights. The Court addressed the alleged infringements of (1) the principle of legality, (2) the right to protest, (3) the right to freedom of assembly, (4) the right to freedom of expression, (5) the right to freedom of opinion, (6) the right to freedom of conscience, (7) the right to political participation, and (8) the right to petition, and dismissed each of them. Nonetheless the Constitutional Court made an extensive interpretation of article 200 in order to limit the application of this rule against the right to protest, thereby recognizing the right to protest as an autonomous fundamental right protected by the Constitution
The Case Against Daniel Santoro
Decision Date: December 11, 2020
The Federal Chamber of Mar del Plata revoked the charges against journalist Daniel Santoro for the alleged offences of attempted coercion and attempted extortion in relation to his association with a source, also charged with coercion and extortion. The Chamber decided on an appeal filed by Santoro’s defense against an order from a Federal Judge, which had charged Santoro for participating in the crimes as a result of his relationship with Marcelo D’Alessio, the co-defendant. D’Alessio, on the other hand, was being charged for impersonating a DEA agent and for purportedly having colluded with Santoro on the publication of damning news articles to coerce and extort two businesspersons involved in a corruption scandal. The Chamber considered that there was not enough evidence of Santoro’s participation in the criminal offences and concluded that different conversations between the defendants were related to their source-reporter relationship and therefore were protected, regardless of their ill-intended use by D’Alessio.
The Case of Shahidul Alam
Decision Date: August 19, 2019
The Supreme Court of Bangladesh upheld the order of the High Court division of the Supreme Court of Bangladesh, in which the High Court had ordered a stay on the investigation of photojournalist and human rights activist Dr. Shahidul Alam, under the (now repealed) Section 57 of the Information and Communication and Technology Act 2006 (ICT). Dr. Alam allegedly made false and malicious comments and statements on a facebook live video and in an interview regarding protests against the death of two students who had died due to lack of road safety mechanisms and traffic mismanagement by the Government. The High Court suspended the investigation of him and issued a ruling asking the government why the investigation against him should not be declared illegal and contrary to the Constitution of Bangladesh and the Digital Security Act, 2018. The High Court’s order of stay was challenged, and in appeal, four judges of the appellate division of the Supreme Court upheld the stay order of the High Court and directed the High Court to dispose of the case in a time bound manner.

Ricardo Zarattini Filho v. Diario de Pernambuco
Decision Date: October 28, 2016
The Brazilian Superior Court of Justice held that a politician was entitled to protection of the right to be forgotten when a newspaper published an interview in which he was accused of previous terrorist activity. The politician had applied to the lower court for damages, arguing that he had been cleared of all charges relating to the terrorist act referred to in the newspaper article. The court of first instance found that the politician’s public image was damaged and ordered the newspaper to pay damages. The appellate court emphasized the right to information and overturned the lower court’s decision. On appeal the Superior Court reinstated the first instance court’s order, holding that “the protection of the dignity of the human person in the information society includes the right to be forgotten”. A special appeal, brought by the newspaper, is still pending.

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.

SLAPPs against journalists across Europe
This report by ARTICLE 19 “provides a Europe-wide overview of lawsuits that are taken to stifle scrutiny and public debate on issues such as corruption, mismanagement of public resources, and human rights violations. Such lawsuits, known as strategic lawsuits against public  participation (SLAPPs) are taken by powerful individuals in society not necessarily to win cases, but to drag their critics through legal processes that drain them financially and psychologically and ultimately prevent them from exercising their fundamental rights (including freedom of expression or freedom of assembly and association). This report is based on in-depth research on SLAPP litigation against journalists in 11 countries across Europe over the last four years: Belgium, Bulgaria, Croatia, France, Hungary, Ireland, Italy, Malta, Poland, Slovenia, and the UK. Several trends emerge from the country studies.”

Post Scriptum

● Prospects for the American Data Privacy and Protection Act. Tech Policy Press’ Sunday Show featured a discussion about the proposed Act with Nora Benavidez, Senior Counsel and Director of Digital Justice and Civil Rights at Free Press, and Justin Brookman, Director of Technology Policy for Consumer Reports. They explore the bill and its prospects in detail as it is considered to the first comprehensive national privacy legislation with bipartisan support.

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