Global Freedom of Expression, Columbia University: Newsletter, w/e 17 September 2022

Community Highlights and Recent News

● Upcoming Event: Providing Safe Refuge to Journalists at Risk in an Increasingly Dangerous World. Join the High Level Panel of Legal Experts on Media Freedom and the Czech Republic, together with special guests, to discuss the growing need to secure emergency safe refuge for journalists at risk. Since Russia’s violent invasion of Ukraine dozens of journalists have been killed, with many more facing shelling, shooting, and arbitrary detention as they have sought to report about the war. In light of the rise in global threats, panelists will discuss the urgent need to implement an emergency visa for journalists at risk, a key recommendation of the High Level Panel’s 2020  Advisory Report. Speakers include H. E. Mr. Jan Lipavský, The Minister of Foreign Affairs of the Czech Republic; Prof. Can Yeginsu, Deputy Chair of the High Level Panel of Legal Experts on Media Freedom; Ms. Jodie Ginsberg, President, The Committee to Protect Journalists; and Mr. Roman Anin, co-founder of iStories, previously journalist at Novaya Gazeta. September 22nd, 2:30-3:30, EST. Please register to watch online here. The event will also be livestreamed via Youtube.

● Webinar: Combating Disinformation: Legal Reforms, Fact-checking, and Journalism. Join Columbia Global Centers | Istanbul, in partnership with the International Press Institute (IPI) Turkey National Committee, for this webinar which will focus on truth-seeking in the increasingly digitalizing media environment, legal means to combat mis- and dis-information, and the role and future of fact-checking. Speakers include Gülsin Harman (moderator) an Istanbul-based journalist; Alexis Wichowski, Deputy Chief Technology Officer for Innovation for the City of New York and adjunct associate professor in Columbia University’s School of International and Public Affairs; and Gülin Çavuş, the Co-founder & Head of Strategy at Teyit, a Turkish fact-checking organization. September 21nd, 6:00 PM Istanbul/11:00 AM New York. Register for the online event here.

● Humor and the Law: The Difficulty of Judging Jests. This special issue of the International Journal of Humor Research features articles on humor-related jurisprudence from Europe, the United States, India, Latin America and Australia, spanning from the 18th century to the present. The list of contributors include Laura Little and Alberto Godioli, Shivangi Gangwar, Ana Pedrazzini and Tjeerd Royaards, Emanuel van Dongen and Martine Veldhuizen, Elisa Kriza, Kelly and Vicky Breemen, Gabi Rittig and Jessica Milner Davis. The full table of contents, as well as free access to some of the articles, is available here.

United States
HiQ Labs v. LinkedIn Corp.
Decision Date: April 18, 2022
The United States Court of Appeals for the Ninth Circuit again reaffirmed the decision of the District Court to grant a preliminary injunction on LinkedIn’s conduct which selectively prevented hiQ from obtaining and using information shared by LinkedIn users and was available publicly to anyone viewing with a web browser. Using automated bots, hiQ scraped information from public profiles of users on LinkedIn and used this information to provide “business analytics” services to clients. The Supreme Court remanded the case for further consideration The panel had ruled that LinkedIn’s cease-and-desist letter to hiQ would endanger the latter’s business. By balancing equities, hiQ’s concerns regarding running a business outweighed the privacy concerns raised by LinkedIn. In this judgement, the Court settled the serious question raised by hiQ with regard to whether accessing “without authorization” under the Computer Fraud and Abuse Act “limits the scope of statutory coverage to computer information for which access permission is generally required.” The Court reiterated Van Buren’s concern that a wide interpretation of CFAA would make it a “sweeping internet-policing mandate”.Sidis v. F-R Pub. Corp.
Decision Date: July 22, 1940
The U.S. Court of Appeals for the Second Circuit held that a magazine article about a once-famous prodigy did not violate his privacy. William James Sidis, who had gained fame as a child and teenager but pursued a more ordinary life as an adult, initiated the proceedings, alleging that The New Yorker magazine had unveiled details about his current life and thus violated his right to privacy. The Court reasoned that scrutiny about Sidis’s life could be of public concern and was hence justified due to his earlier publicity. The Court also held that no illegal use of Sidis’s name, picture, and portrait for trade or advertisement purposes had occurred.

European Court of Human Rights
Genov and Sarbinska v. Bulgaria
Decision Date: November 30, 2021
The European Court of Human Rights (ECtHR) held that conviction for hooliganism and fine for spray-painting a monument connected to communist regime in the context of political protests had been contrary to the European Convention of Human Rights (ECHR), Art. 10. The application was brought to the ECtHR by two applicants, a popular blogger and a political activist, following their conviction by the national courts of Bulgaria for hooliganism and a fine for spray-painting a monument to “partisans” on the anniversary of the 1917 Bolshevik Revolution, in the context of nation-wide protests against a government mainly supported by the Bulgarian Socialist Party, the dominant political force during the communist regime. The national courts found that the applicants’ intention was to scandalize society and demonstrate contempt toward it rather than to express views on a matter of public importance. The ECtHR held that there is no evidence that the applicants’ act caused serious or irreversible damage to the monument, or that the removing of the spray-paint required significant resources. The ECtHR found the a criminal conviction of the applicants of hooliganism and the resultant fines was “not necessary in a democratic society” within the meaning of ECHR, Art.10.Yefimov and Youth Human Rights Group v. Russia
Decision Date: August 28, 2018
The Third Section of the European Court of Human Rights held unanimously that there had been a violation of violation of Article 10 in relation to the first applicant and a violation of Article 11, read in light of Article 10 in relation to both applicants. In 2011, the first applicant wrote a post on the group’s website about the Russian Orthodox Church, making statements such as “thinking members of society have realized that the church is also a party in power.” The first applicant was inserted on the list of terrorist and extremists and charged and found guilty of hate speech. His association was consequently dissolved. In reaching its decision, the European Court of Human Rights noted that the post could not incite violence, hatred or intolerance and that “merely because a remark may be perceived as offence or insulting by particular individuals or groups of individuals does not mean that it constitutes hate speech”.

Germany
Der Dritte Weg v. The City of Zwickau
Decision Date: September 21, 2021
The Saxon Higher Administrative Court in Germany ruled that election posters with the text “Hang the Greens!” must be taken down, because they violated the human dignity of members of the Green Party of Germany and incited hatred against them. The German extreme right-wing party “Der III. Weg” put up green colored election posters in the area of the city of Zwickau, prior to the German federal elections in September 2021. The upper half of the poster said “Hang the Greens!”, in big capital letters. Below this, written in very small font size was “Make our national revolutionary movement known in the city and countryside through poster advertising in our party colors.” The city of Zwickau ordered the party to take down the posters on the ground that they could be understood as an incitement to hang members of the Green Party of Germany. An application for interim relief  by the party “Der III. Weg” against this order of the city administration was partially successful before the Administrative Court of Chemnitz. The Chemnitz Court mainly argued that from an objective viewpoint, the posters were a prompt to hang more green election posters of the party. On appeal, the Saxon Higher Administrative Court found that Zwickau’s order to take the posters down was permissible, because the posters posed a threat to public safety. The Court recognized that the freedom of expression under Art. 5 of the German Basic Law also guarantees the right to express criticism in an exaggerated and polemical form, especially in the political battle of opinions. However, the inscription “Hang the Greens!” clearly referred to members of the Green Party and was capable of disturbing the public peace by inciting hatred and by attacking the human dignity of the members of the Green Party. The text in significantly smaller font size below the inscription did not change this assessment, as it could not be easily read by the majority of the viewers. Since the poster constituted a punishable incitement pursuant to the German Criminal Code, the party’s freedom of expression had to be restricted for the protection of public safety.