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

● “Comedy and free speech laws no laughing matter.” Global Freedom of Expression partner Dr. Alberto Godioi was interviewed by ABC Radio National from Australia about our recent symposium “Laughing Matters? Humor and Free Speech in the Digital Age.” Dr. Godioli discussed examples of case law presented at the symposium from Australia, South Africa and the European Court and to illustrate key principles which courts are relying on to draw the line between parody and hate speech or defamation.  He also presented his new project the Forum for Humor and the Law (ForHum), a platform for practicing lawyers, legal and humor scholars, artists, and anyone who might be interested in the multiform relationship between humor, freedom of expression and the law. ForHum hosts updates on related topics, a list of scholarly resources, and a comprehensive database of legal cases regarding humor and satire from all over the world.

● The Supreme Court of India issued an order to stop free speech prosecution under the unconstitutional S.66A on October 12, 2022, as the Internet Freedom Foundation (IFF), an Indian digital liberties organization, reports. The IFF states such an intervention was necessary, even though the Supreme Court had already declared S.66A of the Information Technology Act, 2000 – the provision that penalized “offensive messages” sent online and was “frequently used to stifle political dissent” – unconstitutional in Shreya Singhal v. Union of India & Ors., (2015) 5 SCC 1. The IFF’s Zombie Tracker found more cases had been registered under S.66A after Shreya Singhal than before the ruling. In its order, the Supreme Court issued several directions, instructing that the existing cases under the provision should be dismissed.

● The 2022 edition of Freedom on the Net: Countering an Authoritarian Overhaul of the Internet has just been released by Freedom House. The report recorded a 12th consecutive year of global internet freedom decline and found that “more than three-quarters of the world’s internet users now live in countries where authorities punish people for exercising their right to free expression online.” Russia had the sharpest drop in digital freedom on the 100-point scale, and China was the worst abuser of human rights online for the 8th consecutive year. Against the backdrop of the decline, however, the report registered 26 countries making significant improvements in internet freedom. You can find the study’s results and recommendations for policymakers and companies here

Decisions this Week

European Court of Human Right
Gaši and Others v. Serbia
Decision Date: September 6, 2022
The Chamber of the Second Section of the European Court of Human Rights (ECtHR) found no violation of the right to freedom of expression in a case concerning the failure of the State to protect journalists and activists from a smear campaign and threatening comments on the internet. The applicants protested against demolition and construction projects in Belgrade for their lack of transparency. The print and online media accused the applicants of being conspirators aiming to disrupt the state, at the behest of a western conspiracy. The prosecutor rejected the applicant’s criminal complaint on the reasoning of no substantial evidence. The ECtHR found that the prosecutor’s decision to not prosecute was not arbitrary or manifestly unreasonable. The Court decided that State didn’t breach its positive obligation to protect the applicant’s freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). Further, the Court found that the State also offered a number of other effective remedies for the protection of the applicants, which the applicants had not yet exhausted.

Russian Federation
Valery Gartung v. Google
Decision Date: August 17, 2021
A Russian Appellate Court reversed the First Instance Court’s decision and found that Google had been incorrect in failing to remove links that a Russian politician had requested be removed from search results of his name. The lower court had held that Google had complied with all the legislative requirements by ceasing to list the requested links in search results of the politician’s name. The Appellate Court found that the information contained in the links was false and discredited the politician’s honor, and held that Google was obligated to remove the links from search results of specific word combinations the politician supplied and was not limited to only removing the links from search results of his name.

Cherepanov v. and Yandex
Decision Date: March 13, 2019
The Perm Regional Court, Russia upheld an order from the Kirovsky District Court of Perm which had held that two popular search engine operators in Russia had failed to comply with the law on the “right to be forgotten” in failing to remove links to disputed information about a Russian politician. The politician had requested the search engines remove links to information which was false or irrelevant from their search results of his name. The search engines failed to do so, stating that they were not in a position to determine whether the information was false and that the links did not include damaging information about the politician. The Courts held that search engines should be able to determine that information is either irrelevant or false and ordered the search engines to remove the disputed links from search results.

Over the next few weeks we will be adding all the decisions of the Oversight Board into the database, many of which are discussed in our recent publication The Decisions of the Oversight Board from the Perspective of International Human Rights Law.

The Oversight Board
Oversight Board Case of Colombian Police Cartoon
Decision Date: September 15, 2022
The Oversight Board overturned Meta’s decision to remove a Facebook post of a cartoon depicting police violence in Colombia. Meta removed the content originally under its Dangerous Individuals and Organizations Community Standard because the post matched an image in a Media Matching Service bank of content that breached the community standard. The Board held that removing the content was inconsistent with Meta’s content policies and values; it was also unnecessary and disproportionate. The Board highlighted the heightened protection of freedom of expression regarding political and social issues and urged Meta to make changes to its processes around media matching service banks – one of its automated content moderation systems.

Oversight Board Case of Reclaiming Arabic Words
Decision Date: June 13, 2022
The Oversight Board overturned Meta’s original decision to remove an Instagram post that, according to the user, showed pictures of Arabic words which could be used in a derogatory way toward men with “effeminate mannerisms”. Meta initially removed the content for violating its Hate Speech policy but restored it after the user appealed. After being reported by another user, Meta removed the content again for violating its Hate Speech policy. According to Meta, before the Board selected this case, it submitted the content for an additional internal review which determined that it did not violate the company’s Hate Speech policy. Meta then restored the content to Instagram. The Board considered that while the post contains slur terms, the content was covered by an exception for speech “used self-referentially or in an empowering way” and an exception that allowed the quoting of hate speech to “condemn it or raise awareness”. As a result, the Board found that the company’s initial decision to remove the content was an error that was not in line with Meta’s Hate Speech policy.

Oversight Board Case of Myanmar Bot
Decision Date: August 11, 2021
The Oversight Board overturned Facebook’s (now Meta) decision to remove a post from Facebook in which a user, who appeared to be in Myanmar, used profanity in the Burmese language to describe the Chinese Government and its policy in Hong Kong. Facebook removed the content because it considered it to violate the Hate Speech Community Standard, which prohibits profane phrases that target a person, or a group of people based on their race, ethnicity, or national origin. The Board concluded that the content was directed at the Chinese state rather than the Chinese people. Specifically, the user used an obscenity to refer to a Chinese policy in Hong Kong as part of a political discussion on the Chinese government’s role in Myanmar. Thus, the Board argued that the content abided by the company’s Community Standards. Similarly, the Board noted that human rights standards supported restoring the content and highlighted the importance of protecting political speech.

Oversight Board case of Pro-Navalny protests in Russia
Decision Date: May 26, 2021
The Oversight Board overturned Facebook’s (now Meta) decision to remove a comment from Facebook in which a supporter of imprisoned Russian opposition leader Alexei Navalny referred to another user as a “cowardly bot”. Facebook determined that the term “cowardly” was a negative character claim against a “private adult” and since the content was reported by the attacked user, it was removed. Although the Board concluded that the removal was in line with the Bullying and Harassment Community Standard, it considered the measure an unnecessary and disproportionate restriction on free expression under International Human Rights and not compliant with Facebook’s values.

Oversight Board Case of Protest in India Against France
Decision Date: February 12, 2021
the Oversight Board overturned Facebook’s (now Meta) decision to remove a Facebook user’s post that contained a meme featuring an image from a Turkish television show depicting a character in leather armor holding a sheathed sword. A text overlay said the sword should be “taken out of its sheath” if kafirs” speak against the Prophet. The accompanying text referred to the President of France, Emmanuel Macron, as the devil and called for the boycott of French products. After reviewing the content, Facebook considered the user’s post a veiled threat that breached its Violence and Incitement Community Standard. However, in its decision, the Board determined that the post was not a call for physical harm, nor did the context surrounding the publication suggest that the post was likely to lead to violent acts. The Board also highlighted that speech on religious and political matters is protected under International Law.

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.

Internet Shutdowns: Trends, Causes, Legal Implications and Impacts on A Range of Human Rights
The Office of the United Nations High Commissioner for Human Rights submitted this report according to Human Rights Council resolution 47/16 to simplify the “Internet shutdowns” phenomenon. It provides an overview of trends in Internet shutdowns, an analysis of their causes, legal implications, and the impact on human rights. It highlights the roles of companies, the existing efforts in promoting Internet connectivity and providing development aid, and their importance in detecting, preventing and responding to shutdowns. The report also provides recommendations for ending shutdowns and minimizing their impact.

Post Scriptum

● Media Law Resource Center (MLRC) London Conference Papers offer a range of resources on comparative developments in media law and policy. The themes featured in the paper series include legal threats to satirists and cartoonists, libel law and the SPEECH Act, anti-SLAPP proposals and solutions, protection of journalists and human rights defenders in court, liability of search engines, and UK’s crackdown on anti-royal protests. The MLRC London Conference 2022 took place on September 18-21. It welcomed more than 200 lawyers, as well as experts representing the judiciary, academia, and the press.

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