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

● COUNTDOWN: Regulating the Online Public Sphere: From Decentralized Networks to Public Regulation. This coming Monday, 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. REGISTER FOR: 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. ●  Upcoming Event: UK Anti-SLAPP Conference ‘Spotlighting Solutions’. Join the International Bar Association’s Human Rights Institute (IBAHRI) in partnership with the Foreign Policy Centre (FPC) and the Justice for Journalists (JFJ) Foundation for the second edition of the UK Anti-SLAPP Conference. This year’s edition will focus on the theme of ‘Spotlighting Solutions’ and will feature investigative journalists Carole Cadwalladr, Tom Burgis, Catherine Belton and Clare Rewcastle Brown to talk about their experiences and potential strategies to counter these legal threats. To register to attend, and get updates on speakers and sessions, please sign up at here. Monday 28th and Tuesday 29th November 2022, both online and in-person in London.● “Blasphemy and Choudhury v. the United Kingdom Revisited in Light of the Attack on Rushdie” by Global Freedom of Expression partner Natalie Alkiviadou in Strasbourg Observers examines blasphemy cases that reached the European Commission of Human Rights (EComHR) and the European Court of Human Rights (ECtHR). Following the recent attack on Salman Rushdie, the article brings in the newly revived debate on blasphemy laws – “an anathema to one of the most fundamental rights of humankind, namely that of freedom of expression” – and their place in democracies. What lurks behind the debate, as Natalie shows, is the differential treatment of religions in the decisions of the EComHR and ECtHR: the approach is restrictive of free speech in the blasphemy cases regarding Christianity yet protective of it when it comes to Islam. To depict the contradiction, the article turns to Choudhury v. the United Kingdom, Gay News Ltd. v. the United Kingdom, Otto-Preminger-Institut v. Austria, Wingrove v. The United Kingdom, and ES v. Austria.● Geneva Declaration: international community unites to end spyware abuse. AccessNow, in cooperation with the Government of Catalonia, have issued the Geneva Declaration on Targeted Surveillance and Human Rights which calls for “an end to the proliferation of surveillance technologies used to target individual and communities engaging in protected activities.” The Declaration specifically calls on multilateral organizations, governments, and the private sector to 1) Implement an immediate moratorium on the export, sale, transfer, servicing, and use of targeted digital surveillance technologies until rigorous human rights safeguards are put in place; 2) Establish a legal and policy framework that makes the acquisition of surveillance tools subject to robust public oversight, consultation, and control; 3) Hold companies developing and distributing these technologies accountable for their failure to respect human rights; 4) Publicly report any detected misuse of cybersurveillance products and services resulting in human rights violations; and 5) Ensure that digital transformation works for, not against, democracy and human rights.

Decisions this Week

The Community Court of Justice of the Economic Community of West African StatesSERAP v. Federal Republic of NigeriaDecision Date: July 14, 2022The Community Court of Justice of the Economic Community of West African States (ECOWAS) held that the Nigerian government violated the Applicants’ right to freedom of expression, access to information and the media by suspending the operation of Twitter on June 4, 2021. The Nigerian authorities claimed the action was necessary to protect its sovereignty on the grounds that the platform was being used by a separatist leader to sow discord. The Applicants, however, claimed the suspension was in retaliation for flagged a Tweet by Nigerian President  Muhammadu Buhari, for violating its rules.  The Court found that access to Twitter is a “derivative right” that is “complementary to the enjoyment of the right to freedom of expression.”  The Court concluded that the law did not suspend the operations of Twitter, and the Nigerian government had violated Article 9 of the African Charter on Human and People’s Rights and Article 19 of the International Covenant on Civil and Political Rights. The Court subsequently ordered the Respondent to lift the suspension of Twitter and guarantee non-repetition of the unlawful ban of Twitter.FranceJacques v. JosephDecision Date: September 16, 2021The Paris Tribunal held that the publisher of an online blog (dedicated to criticizing the French judicial system) could not be held criminally liable for an insulting and “outrageous” comment against a public official, published by an anonymous author. Relying on Article 93-3 of the French law on audiovisual communications of 29 July 1882, the Court held that the “publisher did not have actual knowledge of the message before it was posted online or if, as soon as he or she became aware of it, he or she acted promptly to remove the message”. It was not established by the police investigation that the defendant had editorial control of the comments before their publication. Further, the blog editor removed the message (and the blog itself), even before he was aware of the complaint against him, which made the Tribunal stress that he had intervened as promptly as he could to remove it. Therefore, the Tribunal concluded that Joseph M. could not be held liable as the publisher of insulting statements and dismissed the case against him.ColombiaUnconstitutionality of Article 55 of the Press ActDecision Date: May 13, 2021The Constitutional Court of Colombia held that Article 55 of the Press Act Number 29 of 1944 was unconstitutional because it could lead to a self-censorship mechanism, thereby illegitimately limiting freedom of expression. In 2020, a group of citizens filed an unconstitutionality action against Article 55 of the Press Act which established rules on the burden of the proof in civil liability proceedings for communications that damaged honor and reputation. The Court noted that the provision of a preferential civil liability regime for damages allegedly caused by opinions spread through mass communication channels could lead to self-censorship mechanisms, that would have a paralyzing effect and obstruct the free flow of information. In this sense, the rule constitutes a prohibited means to achieve a legitimate end. The Court then concluded that this provision of the Press Act violated the right to freedom of expression and press of individuals, journalists, and mass media.ArgentinaGoogle Inc. v. B Hall of the National Chamber of Civil AppealsDecision Date: December 3, 2019The Supreme Court of Argentina overruled an injunction granted by the National Chamber of Civil Appeals ordering to remove from its search engine, within 10 days, specific search suggestions involving José Paquez. The information and opinions that the injunction de-listed concerned attacks against students participating in political groups, allegedly carried out by Paquez in his role as Secretary General of a public university. The Supreme Court decided that the measures imposed on Google constituted an act of censorship since they restricted publication, and disrupted the access to and dissemination of public interest information.

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.Finding the Funds for Journalism to Thrive: Policy Options to Support Media ViabilityThis brief comes as part of the UNESCO series World Trends in Freedom of Expression and Media Development. The brief addresses how policymakers can best respond to the severe financial crisis threatening the supply of independent journalism. It provides a typology of global responses, assesses their pros and cons, and makes 22 actionable recommendations. These recommendations include: Creating multistakeholder national commissions/task forces to investigate the challenges and propose solutions for mobilizing resources; considering giving tax breaks to local independent news outlets, or vouchers for subscriptions, along with subsidies for hiring local news reporters, especially where the viability of local news is under extreme pressure, or where “news deserts” have evolved; providing subsidies for news entities to hire dedicated journalists to report on critical issues – such as climate change; municipal affairs; elections and threats to Democracy; public health; gender and other diversities, and migration among others. It builds on the Windhoek+30 Declaration, which underlines media viability as a core principle of information as a public good.

Post Scriptum

● “Friction-In-Design Regulation as 21St Century Time, Place and Manner Restriction” by Brett M. Frischmann and Susan Benesch argues the First Amendment is not “an insurmountable barrier” to speech regulation. The authors propose to apply friction-in-design regulation to the digital networked society, comparing the former to “laws that prohibit using megaphones in the middle of the night, require permits before marches, and prohibit adult theaters in residential neighborhoods.” They note the regulatory model would still prompt First Amendment scrutiny but in an intermediate manner, and, ideally, friction-in-design regulation would balance individual freedoms with a state interest in securing order.

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