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

● Violence Against Journalists Around the World: An Inquiry Through CaseLaw by Ramiro Álvarez Ugarte is the latest paper in the Global Freedom of Expression Special Collection Series. The paper provides an in-depth analysis of 43 court decisions, most handed down over the last five years, that have been added to the Case Law Database relating to violence against journalists and human rights defenders.  It documents the findings of a global research project that sought to identify judicial trends in the adjudication of cases involving this particular form of harm against freedom of expression. The project defined violence against journalists and human rights defenders broadly, including murder, physical aggression, incarceration, threats and other forms of harassment. However, the research also included new forms of violence, such as online harassment and surveillance, especially against women. The first section discusses the conceptual and methodological approach to the research, and the challenges and lessons gathered in the process. The second section introduces the international human rights standards against which judicial trends are, or should be, bench-marked. The third section presents the main findings in the different regions covered, with a focus on the trends that can be identified from the cases identified and the decisions reviewed. The fourth and final section offers a brief conclusion.

● Freedom of Expression and the EU’s ban on Russian Today. A Dangerous Rubicon Crossed by Ronan Ó Fathaigh and Dirk Voorhoof reflects a critical approach to the EU policy on banning media from a non-EU country and in particular the poor-quality of the reasoning of the EU General Court in RT France v Council. From the abstract: In RT France v Council, the General Court of the European Union found that the ban on RT France in the EU did not violate the right to freedom of expression and media freedom, under Article 11 of the EU Charter of Fundamental Rights. Notably, the General Court sought to apply principles from case law of the European Court of Human Rights and international human rights law. This article argues that there are serious questions to be raised over the General Court’s reasoning in RT France, and the judgment arguably represents a deeply problematic application of European and international free expression principles. The article is available from SSRN.

● Third Time Lucky?: Section 66A and the Afterlife of Strategic Litigation, blog post by Sanjana Srikumar and Tanmay Singh, discusses the lengthy attempts to slay the “legal zombie” of Section 66A, which was struck down by the Supreme Court of India in the landmark ruling Shreya Singhal v. Union of India, The provision, which criminalized “offensive,” “false,” or “misleading” speech, was declared overly broad, yet seven years after the ruling, people were still facing “criminal prosecution for constitutionally protected speech under a law that no longer exists.” The Internet Freedom Foundation’s  Zombie Tracker, “found that nearly twice as many cases were instituted in the six years since Section 66A was ruled unconstitutional (1307),  than in the six years that it existed on the law books (681)! Nearly 800 cases were still pending before the Courts by March 2020.” The Supreme Court of India, after being approached twice by the original Petitioners (in 2019 and 2021) about the lingering problem, ordered on 12 October 2022 “that all pending cases, investigations and prosecutions under Section 66A shall stand closed, and no new cases shall be registered.”

● Finding 404: A report on website blocking in India. SFLC.in has launched this new report which documents rising online censorship in India through the blocking of websites, applications, and social media accounts. The report found 55,580 blocking instances between 2015-2022. The first chapter examines statutory instruments which legitimize the takedown of websites, such as the Information Technology Act, 2000 and Copyright Act, 1957, and hence have become “enablers for the Executive and the Judiciary to block access.” The second chapter presents the data collected and the various justifications for the blocking. The third chapter categorizes the types of blockings orders issued by the authorities. The fourth chapter explores the interpretation and application of the related constitutional guarantees, and then compares and contrasts legal frameworks and judgments from a range of foreign jurisdictions. The report concludes with observations and recommendations. View the report launch panel discussion on YouTube.

Decisions this Week

Spain
The Case of WOW v. AEMPS
Decision Date: October 3, 2022
The Supreme Court of Spain ordered the partial unblocking of the website of the Women on Web International Foundation (“WOW”), which published information on sexual and reproductive rights and offered mifepristone and misoprostol, drugs commonly used to end a pregnancy, in exchange for a monetary donation. The case arose after the Spanish Agency of Medicines and Medical Devices (“AEMPS”) blocked access to the website as a precautionary measure. After conducting an administrative procedure, the AEMPS ordered the interruption and withdrawal of information related to the sale of medicines through the foundation’s website and maintained the blocking of the entire website. Consequently, WOW appealed the decision to the Central Contentious-Administrative Court, and the National High Court dismissed the appeal on the grounds that the requirement of judicial intervention did not apply to this case. The Supreme Court determined that websites must be considered within the scope of the definition of a “means of communication”. Therefore, the Court held that when a website’s content constitutes expression or information, the decision on whether a blocking of the site is valid must be judicially determined. Additionally, the Court held that while the publications through which the Foundation offered the drugs in exchange for monetary compensation fell outside the scope of constitutional protection, the administrative authority had failed to respect the principle of proportionality, by blocking access to the entire website, rather than solely to the URL where the unlawful content was posted.

The following newly published case analyses will be featured in a forthcoming Special Collection paper on internet shutdowns. 

Zambia
Chapter One Foundation v. Zambian Information and Communications Technology Authority
Decision Date: March 21, 2022 
The High Court for Zambia at Lusaka issued a consent judgment, confirming that the Zambian Information and Communications Technology Authority (ZICTA) would not “do any act or make any omission outside of their legal regulatory powers and authority which may inhibit or interrupt the flow of and uninhibited access to information on all available telecommunication platforms under their control and/or regulation where the interest of consumers and their consumer and constitutional rights are threatened”. ZICTA also consented to informing the public within 36 hours of any disruptions of the reason for that interruption.

Uganda
Unwanted Witness-Uganda v. Attorney General
Decision Date: April 27, 2021
The Constitutional Court of Uganda at Kampala unanimously held that the petition submitted by the applicants could not be considered and thus struck it out but with no costs due to the public interest nature of the petition. This was ruled after the NGO Unwanted Witness-Uganda and Journalist Tumuhimbise Norman submitted a petition to the Court, in accordance with Article 137 (3) (a) of the Ugandan Constitution, challenging the Government’s shutdown order of social media and access to mobile financial services on two occasions, namely the presidential and parliamentary elections in February 2016 and the inauguration of the elected president in May the same year. The Court reasoned that the petition should have been submitted before another competent court given that it did not raise any questions of constitutional interpretation but concerned only alleged violations of constitutional provisions through either acts or omissions of the government.

Zimbabwe
Zimbabwe Lawyers for Human Rights v. Minister of State, National Security
Decision Date: January 21, 2021
The Zimbabwean High Court held that an order to shut down internet services was unlawful, and ordered that all telecommunications service providers restore access to their subscribers. The Minister of State, Owen Ncube, had issued orders under the Interception of Communications Act (the Act) to shut down the internet in the country on public safety grounds during a period of social unrest. The High Court order established that a Cabinet Minister may not order the interruption of internet services in Zimbabwe. Despite MISA and ZLHR raising the constitutionality of the legislation, the Court did not engage with the legality of the provisions. However, given the repressive government in Zimbabwe the judiciary decided this matter according to the law.

Cameroon
Global Concern Cameroon v. Ministry of Posts and Telecommunications and Others
Decision Date: 30 July 2018
The Supreme Court of Cameroon, sitting as the Constitutional Council of Cameroon, declared a petition filed by Global Concern Cameroon, for a declaratory judgment as per article 65 of the Constitution of Cameroon, inadmissible for lack of locus standi. The petition was filed because of two internet shutdown incidents imposed by the government across the two English-speaking regions in Cameroon: South-West and North-West. In its decision, the Court justified its ruling that the petition was filed by a person who does not fall under the persons empowered to refer matters to the Constitutional Court as stipulated by Section 47(2) of the Constitution of Cameroon. This Section exclusively entitles the following persons to submit petitions to the Court: President of the Republic, President of the National Assembly, President of the Senate, one-third of the members of the National Assembly or one-third of the Senator, and Presidents of Regional Executives.

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.

Model Training Materials: Hate Speech, Defamation and National Security
These training materials prepared by The Centre for Law and Democracy focus on three commonly applied restrictions on freedom of expression under international human rights law. They are designed as a resource for professional networks of media lawyers and other organisations working to build the capacity of lawyers to defend media freedom. The Materials consist of: 1) a Background Reading document describing core standards for each type of restriction; 2) sample exercises that can be used during training programmes; 3) discussion questions, also for use during trainings; and 4) sample agendas for a one and one-half hour or one-half-day workshop based on the materials.

Post Scriptum

Beyond Section 230: Three paths to making the big tech platforms more transparent and accountable. Robert Kozinets and Jon Pfeiffer posit in this article that change to Section 230 is overdue on the ground that that the provision is outdated and that a better balance can be struck between corporate profit and civic responsibility. The authors propose three possible scenarios to amend Section 230, which they describe as “verification triggers,” “transparent liability caps,” or a “Twitter court.” A “verification trigger” is a tool to counter the monetization of misinformation, and once a platform reaches a profit-threshold based on certain harmful content, it would move “outside the bounds of Section 230 and into the bright light of responsibility — and into the world of tort, defamation and privacy rights laws.” Alternately, states could create a “transparent liability cap” by amending legislation to “specify what constitutes misinformation, how social media platforms need to act, and [set] the limits on how they can profit from it.” Finally, a “Twitter Court,” along the lines of Meta’s Oversight Board, could “adjudicate claims involving individuals, public officials, private companies and the platform.” The authors do not believe that expanding carveouts for harms, such as hate speech and cyberbullying, would be effective due to the difficulty in establishing definitions and thresholds in light of the need for contextual considerations. Hence, they believe their proposals could make “online discourse stronger and platforms fairer.”

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