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

● Copenhagen Conference – The Future of Free Speech. Join The Future of Free Speech on 15 December for a hybrid event bringing together experts from tech companies, civil society, international organizations and academia to discuss global developments relating to online speech and content moderation. Opening remarks will be presented by Jacob Mchangama, founder and executive director of Justitia, a think tank focusing on human rights; Anastasia Garina of Memorial (Nobel Peace Prize Laureate); and Monika Bickert; Meta’s Vice President for Content Policy. The second panel, Free Speech: Global Developments, will feature Galina Arapova, director and senior media lawyer at the Mass Media Defence Centre (Russia); Prof. Dr. Eric Heinze, Professor of Law & Humanities at the University of London; and Ourveena Geereesha Topsy-Sonoo, Special Rapporteur on Freedom of Expression and Access to Information in Africa, African Commission on Human and People’s Rights. The third panel, Taking Stock: Challenges, Synergies and the Way Forward – Extremist Speech Online, includes Nighat Dad, Digital Rights Foundation and Oversight Board; Joan Barata, Stanford Cyber Policy Center; and Kerem Altiparmak, Freedom of Expression Association İFÖD – İfade Özgürlüğü Derneği. The Danish Parliament on the 15th of December 2022. Read more and register for either online or on-site participation here.

● El Faro Journalists, Knight Institute Sue NSO Group Over Spyware. The Knight First Amendment Institute at Columbia has filed suit against NSO Group on behalf of 15 of the El Faro employees whose iPhones were infected with Pegasus spyware. Knight’s complaint explains that NSO Group’s development and deployment of the spyware violated, among other laws, the Computer Fraud and Abuse Act, which prohibits accessing computers without authorization. They argue that their case belongs in a U.S. court because the spyware attacks violated U.S. law, because they were intended to deter journalism that is important to hundreds of thousands of American readers, and because NSO Group’s development and deployment of Pegasus involved deliberate and sustained attacks on the U.S. infrastructure of U.S. technology companies—including Apple, which itself sued NSO Group last year, contending that the spyware manufacturer had damaged its business and harmed its users. Knight asked the court to order NSO Group to cease its attacks on the El Faro journalists. Knight also asked it to compel the spyware manufacturer to disclose what information it stole from the journalists’ phones, and, perhaps most importantly, to identify the client with whom it carried out the attacks.

● UK government removes ban on “legal but harmful” content in new Online Safety Bill. The Jurist reports the UK government has “opted against a ban on ‘legal but harmful’ content in its Online Safety Bill in response to backlash over free speech on social media, especially Twitter. Social media companies will now be under no obligation to remove legal content that may cause harm, such as content that promotes eating disorders and self-harm. In a press release, the government stated that the removal of these provisions will allow for ‘new duties to boost free speech and increase accountability of tech firms.’” A “triple shield” approach aims to provide greater protection for children and to give users more control over what content they see with individualized content moderation tools and warning screens.

Decisions this Week

European Court of Human Rights
Sergey Sorokin v. Russia
Decision Date: August 30, 2022
The Third Section of the European Court of Human Rights (ECtHR) held the State of Russia responsible for searching a journalist’s home and authorizing a seizure of his electronic devices as a direct interference with his right to freedom of expression under Article 10 of the Convention. The case arose after a journalist published an interview on the website of his weekly newspaper, “Zyryanskaya zhizn” with a high-ranking police officer regarding a scandal. A criminal case was subsequently opened against the police officer for disclosing State secrets, and the Syktyvkar Town Court of the Republic of Komi authorized a  search of the applicant’s flat and the seizure of devices containing information relating to the interview. The journalist’s computer, four hard drives, and an audio cassette were seized during the search. As a result, the applicant appealed to the Supreme Court of the Republic of Komi; however, his plea was unsuccessful on grounds that the judicial search and seizure authorization were reasoned and corroborated by materials submitted by the investigator. The ECtHR held that while the search and seizure measures had had a general legal basis in domestic law, there was a lack of procedural safeguards protecting journalistic sources and addressing the seizure and examination of data carriers.

M.D. and Others v. Spain
Decision Date: June 28, 2022
Third Chamber of the European Court of Human Rights (ECtHR) unanimously held that the compiling of files by the police in Catalonia on judges who had expressed views on that region’s independence from Spain infringed the judges’ right to privacy. The case concerned the compiling of files by the police in Catalonia on judges who participated in the authorship of a manifesto expressing that under the Constitution and international law, Catalan people should have a say on the region’s independence. Personal information and photographs were subsequently leaked to the press.  In its decision, the ECtHR found that since there was no legal provision authorizing the compiling of such reports, their mere existence contravened Article 8 of the Convention. Regarding the investigation into the leak, the Court found the national authorities had acted inadequately, particularly for failing to interview the Chief of Police of Barcelona, who was crucial to the investigation. Regarding the applicants’ allegation that their right to freedom of expression had been infringed, the Court held that no sanction or chilling effect could be determined from the fact that disciplinary proceedings had taken place.

I.V.Ț. v. Romania
Decision Date: March 1, 2022
The Fourth Section of the European Court of Human Rights (ECtHR) held that the state of Romania breached the right to privacy of the applicant when its domestic courts argued that a company was not civilly liable for broadcasting on television an interview of the applicant, then aged eleven, without the consent of her parents. Higher domestic courts in Romania considered that the company’s freedom of expression outweighed the minor’s right to privacy, especially since the broadcast reported on matters of public interest. The ECtHR considered that national courts failed to correctly balance the aforementioned rights. For this Tribunal, the young age and lack of notoriety of the applicant, compounded by the little contribution that her interview was likely to bring to a debate of public interest —regarding an event she didn’t witness—, the absence of parental consent, and the particular interest in the protection of the private life of minors, were sufficiently strong reasons for the ECtHR to consider that Romania had breached Article 8 of the European Convention on Human Rights (ECHR).

Argentina
Denegri v. Google Inc
Decision Date: August 10, 2020
The Argentinian National Civil Court of Appeals upheld a lower court’s judgment that partially admitted the plaintiff’s claim by ordering Google Inc to remove the content that showed scenes of fights and arguments between the plaintiff and other interviewees on television programs. However, it rejected her petition to remove the content associated with the criminal proceedings on the ground that certain existing information referred to a fact that influenced a specific time and, therefore, constituted part of the society’s collective memory. The plaintiff, Natalia Denegri, got media attention in the mid-1990s for being linked to a TV scandal known as the “Coppola case”. She sought legal recourse against the search engine, requesting her right to be forgotten. Ms. Denegri claimed that although more than two decades had passed, the information continued to appear in the search results. She also claimed the information belonged to a past that she wished to forget and that the content was old, irrelevant, unnecessary, and obsolete, without any journalistic pertinence. This is the first case in which the Argentinian judicial power has recognized the “right to be forgotten”.

Indonesia
Alliance of Independent Journalists v. Minister of Communication
Decision Date: June 3, 2020
The Jakarta State Administrative Court held that the actions taken by the government of shutting down the internet network in West Papua and Papua province were unlawful and ordered the government to pay to the Plaintiffs the amount Rp. 457,000 (Four Hundred Fifty Seven Thousand rupiah) or $30.59 USD approx. The plaintiffs which included organizations advocating for press freedom, digital rights, the right to information and the welfare of the journalists sued the Minister of Communications and Informatics and the President of the Republic of Indonesia for throttling access to the internet in some areas of West Papua province and Papua province on August 19, 2019. The defendants invoked the spread of hoaxes, transmission of false news, racist speech and incitement as the reasons for throttling access to the internet. While recognizing the right to access internet as a fundamental right under the ambit of freedom of expression, the court observed that the restrictions on the freedom of expression must fulfill three conditions: first, restrictions must fulfill one of the following objectives: right to reputation, morality, religious values, security, decency, public order, or public health; second; restrictions must be prescribed by law; third, restrictions must be proportional. The court agreed that the internet was shut down under “security and public order considerations” however the governmental action was not prescribed by law and therefore did not satisfy the second criterion, as the government’s power did not extend to the termination of access to internet network at large but could be used only to terminate access to electronic information/documents that had unlawful content.

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.

Citizenship Education in the Global Digital Age
This document prepared by UNESCO’s Section on Global Citizenship and Peace Education with the contribution of Laura Engel and Evelyne Koumtingue, is part of several thematic papers developed by UNESCO to inform the Revision of the 1974 Recommendation concerning Education for International Understanding, Co-operation and Peace and Education relating to Human Rights and Fundamental Freedoms. It is based on the premise that students and educators must be empowered with the knowledge, values, capacities, and dispositions needed to address both the opportunities and the challenges of the digital revolution at a time of mass migration, climate degradation and the unsustainable use of natural resources, increased inequalities, growing global divisions and marked fragility of democratic institutions. This paper explains the main opportunities, challenges, and risks involved in using digital tools in education for international understanding, cooperation and peace, and education relating to human rights and fundamental freedoms.

Post Scriptum

●  Digital Freedom Fund Call for Grant Applications. The Digital Freedom Fund supports strategic litigation to advance digital rights in Europe, by providing financial support for strategic court cases and catalysing collaboration between those working to advance digital rights. Grants are awarded for two primary categories: 1) Litigation Support Track, which supports litigation of a case through multiple instances, from first instance through to the final appeal; and 2) Pre-Litigation Research which supports activities to prepare for planned litigation. This could include legal research, evidence gathering, forum selection or identifying claimants and project partners. It does not include broad research or general scoping about unplanned litigation. Applications will be accepted from 22 November 2022 to 28 February 2023.

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