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
● Upcoming Event: Regulating the Online Public Sphere: From Decentralized Networks to Public Regulation. Join Global Freedom of Expression, the Future of Free Speech and Justitia for a two-day conference bringing together stakeholders from the technology industry, civil society and academia to facilitate the exchange of experiences between key actors regarding emerging decentralized networks, existing norms and standards (hard and soft law) in the field, and the implications for Human Rights. On the first day, speakers will discuss new models of decentralized networks and, on the second day, the different regional approaches to public and private regulation of content moderation on the Internet. October 3 & 4, 2022. Learn more and register here. The conference will also be live streamed on the GFoE YouTube channel.
● Upcoming Event: Laughing Matters? Humor and Free Speech in the Digital Age. Join Global Freedom of Expression, Temple Law School, and the University of Groningen for a symposium sponsored by the Dutch Research Council to explore the legal boundaries of humor and free speech in the digital age. The day-long event will showcase interdisciplinary collaboration between practicing lawyers, legal scholars and humanities-oriented humor researchers who are working to map the juridical handling of humor across different regions. Aiming to set a foundation for further collaboration, this symposium will feature a series of short presentations on current issues and ongoing projects, followed by an open Q&A at the end of each panel. October 14, 2022. More information and register here.
● “Courts must #KeepItOn to protect the right to education.” AccessNow reports that the Indian Supreme Court issued notice to the to the Union of India to provide direction on the standard protocols for internet restrictions in an effort to ensure compliance with their ruling in Anuradha Bhasin. The Software Freedom Law Centre had submitted a petition challenging the use of internet shutdowns during exam periods to prevent cheating. Sanjana Srikumar, writing for AccessNow observed that such practices are not compatible with the right to education as they lead to discrimination and a form of “digital apartheid.” Further, “the right to education offers courts a tool to understand the full impact of shutdowns as a form of exclusion from dimensions of human life, without undue deference to states.”
Decisions this Week
The Case of Bumbeș v. Romania
Decision Date: May 3, 2022
The European Court of Human Rights (ECtHR) ruled that the Romanian authorities violated the Applicant’s freedom of expression by fining him for a short and peaceful protest held in front of a governmental building. The Applicant, Mr. Bumbeș, had handcuffed himself to the barriers blocking access to the parking area of the government’s headquarters to protest a controversial mining project. The domestic courts found that his actions were unlawful as they amounted to a breach of public peace and that he had not provided the required three-day prior notice to stage a demonstration. The ECtHR found that while the interference was lawful and pursued a legitimate aim, it was not necessary in a democratic society. As the protest was peaceful, only involved four people and was quickly disbanded, the Court reasoned that the national authorities did not show sufficient tolerance for the political speech and placed disproportionate emphasis on the failure to give prior notice for the assembly. Hence, the Court held that there had been a violation of Mr. Mr. Bumbeș’ right to freedom of expression under Article 10 interpreted in the light of the right to freedom of assembly under Article 11.
Decision Date: July 16, 2013
The European Court of Human Rights held that Latvian investigating authorities had failed to protect the sources of a journalist and thus violated Article 10 of the European Convention on Human Rights. After news program host Ilze Nagla had gone on air to inform the public of an information leak from the State Revenue Service database, the investigating authorities searched her home and seized several data storage devices. While the Court recognized the importance of securing evidence in criminal proceedings, it stressed that “a chilling effect” could arise when journalists were expected to assist in the identification of anonymous sources. The Court held that a search conducted with the aim of identifying a journalist’s source was a measure more extreme than an order to disclose the source’s identity.Le Pen v. France
Decision Date: April 20, 2010
The European Court of Human Rights held unanimously that there had been no violation of violation of Article 10 in relation to the the applicant. In 2005, the applicant was fined 10,000 Euros for incitement to discrimination, hatred and violence due to statements he made about Muslims living in France in an interview given to the newspaper Le Monde. He stated, amongst others, that “the day there are no longer 5 million but 25 million Muslims in France, they will be in charge.” In 2006 he was fined an additional 10,000 EUR for further comments he made regarding his initial fine. The European Court of Human Rights found the application to be manifestly ill-founded since the applicant’s statements promoted rejection and hostility against the Muslim community and could not, therefore, fall within the framework of speech protected by Article 10 of the European Convention on Human Rights.
Adalah Legal Center for Arab Minority Rights in Israel v. State Attorney’s Office
Decision Date: April 12, 2021
The Supreme Court of Israel denied a petition regarding the allegedly unlawful voluntary enforcement procedure of the Cyber Department in the State Attorney’s Office. The petitioners contended that the procedure through which the Department notified online platform operators of suspected harmful content violated constitutional rights to freedom of expression and due process under Basic Law. The Court held that the Department’s voluntary enforcement procedure constituted a governmental act since the state influenced its interactions with operators and end users. The Court concluded that, in the absence of specific authority for its activity in primary legislation, the Department’s voluntary method could rely upon the residual power granted to the government under Section 32 of Basic Law, if its activities did not breach fundamental rights.
The Case of Citizen K
Decision Date: November 26, 2018
The Russian Constitutional Court refused to consider the application brought by a Russian lawyer seeking to have various provisions of Russia’s Information, Information Technologies and Information Protection law declared unconstitutional. The lawyer had been convicted of a crime and later requested that the search engine remove results attached to articles about his conviction. The lower courts ruled against the lawyer in his right to be forgotten application, holding that the information remained relevant and that as all records of a conviction had to be retained for 15 years, information of that crime should be accessible for the established time frame. The lawyer then challenged the constitutionality of the provisions which permitted search engines to refuse requests for removal of search results. The Constitutional Court balanced the rights to privacy and to access to information, and found that although personal data protection rights have a special status that does not mean they cannot be restricted. The Court held that the right to access information outweighed the personal right to be forgotten as the information was of public relevance and not related to the lawyer’s private life.
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.
What if We All Governed the Internet? Advancing Multistakeholder Participation in Internet Governance
This report builds upon UNESCO’s Internet Universality framework, which provides guidance on how the Internet can help construct global knowledge societies by calling for decision-making about Internet-related issues according to four principles summarized by the acronym R.O.A.M., namely: human rights-based; open; accessible to all; and with multistakeholder participation. The report highlights how multistakeholder participation in Internet governance can support UNESCO’s work in general and the protection of the R.O.A.M. principles in particular. The initial part of the study consists of a review of literature relevant to the principle of multistakeholder participation in Internet governance and it investigates how the principle of multistakeholder participation has been applied in practice in four case studies: Kenya, Brazil, South Korea, and an initiative under the auspices of the Internet Governance Forum (IGF).
● Activists say China’s new Silk Road equips autocrats with spy tech. Thompson Reuters Foundation reports that China has sold extensive digital surveillance packages to more than 50 governments under its Belt and Road Initiative (BRI) infrastructure project which are being used for “tracking and intimidating dissenters, monitoring political opponents, and preempting challenges to the government.” States may claim the technology will improve security and reduce crime, but “human rights groups have raised concerns about privacy violations and the potential for profiling and discrimination, with the technologies often deployed without public consultation, and in the absence of strong data protection laws.”
This newsletter is reproduced with the permission of Global Freedom of Expression. For an archive of previous newsletters, see here.