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

● South Africa: The Constitutional Court SLAPPs back in mining companies mineral sands case, now it’s parliament’s turn. Inforrm’s blog has a post by Global Freedom of Expression expert Dario Milo, who discusses two recent Constitutional Court decisions which he writes are “significant victories for freedom of expression and for all those who speak truth to power.” The first case Mineral Sands Resources (Pty) Ltd and Others v. Reddell and Others [2022] ZACC 37 was brought by an Australian mining company and its South African subsidiaries against environmental attorneys and activists who publicly criticised the mining activities. On appeal, the Constitutional Court unanimously affirmed a High Court finding that “the common law doctrine of abuse of process can accommodate the SLAPP suit defence” and that SLAPP suits are defined not only by a bad motive but they also lack merit. In the second case Reddell and Others v. Mineral Sands Resources (Pty) Ltd and Others [2022] ZACC 38, the Court ruled that trading corporations can be precluded in the court’s discretion from suing for reputational damages, where the speech was in the public interest. As SLAPPs are on the rise in South Africa and abroad, Milo calls on the South Africa to move forward with anti-SLAPP legislation. See full case analyses below.

●  Tragic year for the press in Latin America. IFEX reports that 2022 has been the most violent year for the press in Latin America and the Caribbean for the last two decades with at least 37 journalists murdered in connection with their work. “Additionally, dozens of journalists have been exiled, or imprisoned; hundreds of journalists are still missing, while dozens of media outlets have been forced to close.” IFEX noted four concerning trends: (1) the resurgence of “caudillista” (strongman) political regimes; (2) disinformation strategies that seek to discredit, delegitimize, and diminish confidence in journalism; (3) insufficient protection mechanisms; and (4) surveillance and espionage used against journalists. They also propose a range of actions states can take to counter these challenges.

●  Twitter v. Taamneh in the Supreme Court: What’s at Stake. The Knight First Amendment Institute posted a blog discussing the amicus brief it filed in Twitter v. Taamneh. The case before the Supreme Court concerns a lawsuit against Twitter for aiding and abetting terrorism by not taking sufficient countermeasures to limit content posted by ISIS. A Ninth Circuit ruling held that “an online platform with generalized knowledge that a terrorist organization used its service could be held liable under the Anti-Terrorism Act.” Knight argues in their brief that “the Court should allow aiding-and-abetting liability only when platforms like Twitter have actual knowledge that a specific post, video, or other piece of user-generated content provides substantial assistance to a terrorist act.” Knight warns that if the Court does not overrule the Ninth Circuit decision it could result in platforms pro-actively “taking down constitutionally protected speech for fear of legal liability.”

Decisions this Week

South Africa
Mineral Sands Resources (Pty) Ltd v. Reddell; Mineral Commodities Limited v. Dlamini; Mineral Commodities Limited v. Clarke
Decision Date: November 14, 2022
The Constitutional Court in South Africa ruled that a SLAPP suit defense exists in South African law as part of the broad category of abuse of process. After two Australian mining companies brought defamation suits against environmental lawyers and activities, the environmentalists filed a special plea, arguing that the defamation cases constituted SLAPP suits. The High Court accepted that a SLAPP suit defence is suitable in South Africa and the companies appealed to the Constitutional Court. The Court held that filing a case against those who speak out on matters of public interest as a tool to silence or deter that opposition when the aim of the litigation is not to vindicate a right constitutes a SLAPP suit in South Africa. However, the Court found that the environmentalists in this case had not proven all the requirements for a successful SLAPP suit defence.

Reddell and Others v. Mineral Sands Resources (Pty) Ltd and Others
Decision Date: November 14, 2022
The Constitutional Court in South Africa ruled that a court can refuse to grant a trading corporation damages for non-patrimonial loss for defamation in cases involving matters of public interest. After two Australian mining companies brought defamation suits against environmental lawyers and activities, the environmentalists argued that trading corporations do not have a claim for general damages for defamation. The Court found that as a trading corporation does not have the protection of the right to dignity, balancing its right to reputation and the right to freedom of expression likely favors the right to freedom of expression. The Court held that the chilling effect caused by general damages when the defendant does not have the right to have its loss of dignity compensation is an unjustifiable limitation of the right to freedom of expression.

Argentina
Natalia Denegri v. Google Inc.
Decision Date: June 28, 2022
The Supreme Court of Argentina unanimously rejected a “right to be forgotten” petition by an anchorwomen to have Google de-index embarrassing content from her past. Natalia Denegri, a famous TV presenter, brought the petition in relation to videos of her participation in a TV talk show where she was verbally and physically abusive to other participants. She argued that the content was no longer relevant and that its easy accessibility infringed her rights to privacy, intimacy, honor, and reputation. The Court observed that de-indexation requests could result in a form of prior restraint and therefore required strict scrutiny. Further, the Court considered de-indexation to be an “extreme measure” as it restricts the flow of public interest information. In the present case, the mere passing of time did not render the information irrelevant and as Ms. Denegri is a public figure freedom of expression must be weighed more heavily than the right to honor and reputation.

European Court of Human Rights
Yücel v. Turkey
Decision Date: January 25, 2022
The European Court of Human Rights (ECtHR) supplemented a decision from the Constitutional Court of Turkey, finding that pre-trial detention of a journalist had been a violation of various rights, including of freedom of expression. The journalist had been detained for a year following his arrest under emergency laws adopted by Turkey. The journalist’s request for a provisional release had been rejected by the Constitutional Court but it later held that his detention was unconstitutional, released him and awarded him compensation. The ECtHR found that the journalist’s rights were still being violated and that the amount of compensation he had been awarded was inadequate.

India
NSE v. Moneywise Media Private Limited
Decision Date: September 9, 2015
The Delhi High Court directed the plaintiffs to pay INR 1,50,000 (approx USD 1,835) to each of the two defendants, and INR 47,00,000 (approx USD 57,503) to public causes after noting that the defamation suit was filed to suppress dissent and criticism and therefore, was a “gross abuse of the process of this Court”. In the instant case, National Stock Exchange (NSE), one of the premier stock exchanges in India, filed a case against the defendants – Ms. Sucheta Dalal, Managing Editor of Moneylife, an online news website and Mr. Debashish Basu, Executive Editor of Moneylife for publishing articles accusing NSE of facilitating impropriety in “high-frequency trades” or algorithmic trades, permitting illicit trading advantages to certain people and being unwilling to part with any information or to provide any clarification. The judge held that the defendants made every effort that a reasonable person would in checking the veracity of the claims including carrying out an independent investigation and wiring letters to the higher authorities of NSE.

M/S. Crop Care Federation of India v. Rajasthan Patrika (PVT) LTD.
Decision Date: November 27, 2009
The Delhi High Court dismissed the suit filed by M/S Crop Care Federation of India, the plaintiff against Rajasthan Patrika newspaper and its editors, for publishing articles highlighting the harmful effects of pesticides, insecticides on human health and asserting high contamination of prohibited chemicals in the various vegetables available in Rajasthan. The court noted that all the ingredients of defamation action were not fulfilled as the articles were not directed towards a determinate or definite class or group of persons. The court further opined that the plaintiff, by filing case on a matter of public concern, attempted to “stifle debate about the use of pesticides and insecticides”.

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.

The Pen and the Camera are not Enemies; Neither are Uniforms
This paper by Eduardo Bertoni discusses tensions related to the journalistic coverage of street demonstrations and police action. Specifically it highlights access to information sought by the press and related to investigations carried out by the security forces; and the response given by security forces to situations of threats or attacks on people carrying out their work as journalists. The paper pays particular attention to these points of contention from a gender perspective. In conclusion, the paper proposes strategies for reducing confrontations between journalists and security forces and emphasizes the need for training as one of the best mechanisms for reducing them.

Post Scriptum

Using Terms and Conditions to Apply Fundamental Rights to Content Moderation. This paper written by João Pedro Quintais, Naomi Appelman, Ronan Fahy is available on SSRN.

Abstract
Large online platforms provide an unprecedented means for exercising freedom of expression online and wield enormous power over public participation in the online democratic space. However, it is increasingly clear that their systems, where (automated) content moderation decisions are taken based on a platform’s terms and conditions (T&Cs), are fundamentally broken. Content moderation systems have been said to undermine freedom of expression, especially where important public interest speech ends up suppressed, such as speech by minority and marginalized groups. Indeed, these content moderation systems have been criticized for their overly vague rules of operation, inconsistent enforcement, and an overdependence on automation. Therefore, in order to better protect freedom of expression online, international human rights bodies and civil society organizations have argued that platforms “should incorporate directly” principles of fundamental rights law into their T&Cs. Under EU law, and apart from a rule in the Terrorist Content Regulation, platforms had until recently no explicit obligation to incorporate fundamental rights into their T&Cs. However, an important provision in the Digital Services Act (DSA) will change this. Crucially, Article 14 DSA lays down new rules on how platforms can enforce their T&Cs, including that platforms must have “due regard” to the “fundamental rights” of users under the EU Charter of Fundamental Rights. In this article, we critically examine the topic of enforceability of fundamental rights via T&Cs through the prism of Article 14 DSA. We ask whether this provision requires platforms to apply EU fundamental rights law and to what extent this may curb the power of Big Tech over online speech. We conclude that Article 14 will make it possible, in principle, to establish the indirect horizontal effect of fundamental rights in the relationship between online platforms and their users. But in order for the application and enforcement of T&Cs to take due regard of fundamental rights, Article 14 must be operationalized within the framework of the international and European fundamental rights standards, and therefore allowing Article 14 to fulfil its revolutionary potential.

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