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

● NEW MOOC: Investigating and Prosecuting Crimes against Journalists, Promoting Freedom of Expression. UNESCO and the International Association of Prosecutors have developed this new course to build on UNESCO-IAP’s Guidelines for Prosecutors on Cases of Crimes against Journalists (available in 19 languages). The course is structured into 5 modules including Freedom of Expression, Role of the Prosecutor in Effective Prosecution of Crimes against Journalists, Criminal Defamation, Journalistic Method and sources; and Evidential Issues, Elements and Practice of International Cooperation. The course will be led by former prosecutors and international experts on freedom of expression, and will include high-level guest speakers such as a former Judge of the International Criminal Court, a representative of the Office of the High Commissioner for Human Rights, and an investigative journalist. There is no limit as to the number of participants and there are no pre-requisites to participate. At the end of the course, a certificate of completion will be issued for participants who have completed all the modules and quizzes. This free, two-week online course will run from 27 February until 9 March 2023, and will be available in English. Register here.

● Views on First Podcast: Slippery Slope? The Knight Institute has released the second podcast in their five-part series which “explores the ramifications of Knight v. Trump.” The decision, which held that then-president Trump could no longer block critics on social media, quickly raised questions related to how would it affect other government officials, and what might it mean for the development of the law more generally? Host Evelyn Douek is joined by Harvard Law Professor Noah Feldman and former Twitter head of integrity Yoel Roth to consider whether the ruling established “much-needed guardrails around free speech online, or is it starting us on a slippery slope that could fundamentally change how the First Amendment applies to social media platforms?”

● In El Salvador, President Bukele harasses independent journalists on Twitter. IFEX reports that “Bukele’s government uses paid influencers and ‘likely bot farms’ to tweet pro-government messages ‘tens of thousands of times’ on a given topic while masking their origin to create the appearance of authentic grassroots support.” Bukele, who ran on an anti-corruption platform, seems to be quite sensitive to reporting about corruption in his own government and has even taken to blocking “citizens, activists, and journalists.” In particular, he has been called out for targeting women journalists due to their critical reporting on his policies and mobilizing trolls to threaten them online. Consequently, El Salvador has dropped 30 points in Reporters Without Borders’ Press Freedom Index.

Decisions this Week

European Court of Human Rights
Timur Sharipov v. Russia
Decision Date: September 13, 2022
The Chamber of the European Court of Human Rights in a majority judgment (6 to 1) found a violation of freedom of expression under Article 10 of the European Convention on Human Rights due to the removal of the applicant (an election observer) from the polling station. The precinct electoral commission had granted the Observer the authority to film, but determined he had violated the rules and hence ordered his removal from the polling station. The court reasoned that the domestic authorities did not give sufficient reasons why the applicant’s alleged filming of the polling station put pressures on the members of the election commission in such a manner that the applicant had to be removed from the station.

India
State v. A Duraimurugan Pandian Sattai
Decision Date: June 7, 2022
The Madras High Court revoked bail granted to a YouTuber charged with posting derogatory videos about the Chief Minister of Tamil Nadu. The State of Tamil Nadu filed the petition seeking cancellation of bail on the ground that the respondent YouTuber had violated a sworn affidavit to cease posting false and defamatory videos. The YouTuber argued that he and others were earning substantial income from YouTube on the basis of viewership of the inflammatory videos. The Court found the impugned videos violated the community guidelines of the intermediary, guidelines which must conform with State laws. According to the Court, intermediaries are obligated to remove or block the offending content as soon as they become aware of it, even without a court order, or be held liable under Section 69A (3) of the Information Technology Act. In the present case, the Court was satisfied that the YouTuber had violated the terms and conditions of his previous order, and hence his bail was canceled.

Court of Justice of the European Union
Meta Platforms Ireland
Decision Date: April 28, 2022
The Third Chamber of the Court of Justice of the European Union (CJEU) upheld the right of consumer protection associations to hold companies liable for violating the General Data Protection Regulation (GDPR). The German Federal Union of Consumer Organisations and Associations brought an action for an injunction against Meta Platforms Ireland for an infringement of the right to data protection of a data subject under GDPR, without a mandate from a data subject. Meta Platforms Ireland is the controller of the personal data of users of the popular social network “Facebook” in the European Union. The Facebook internet platform contains, at the internet address http://www.facebook.de, an area called ‘App-Zentrum’ (‘App Center’) on which Meta Platforms Ireland makes available to users free games provided by third parties. When viewing some of those games, the user is informed that use of the application concerned enables the gaming company to obtain a certain amount of personal data and gives it permission to publish data on behalf of that user. In this judgement, the German Consumer Organisation was given standing to bring about a case in court concerning the violation of rights of consumers who are also data subjects. The Court held that this could be done independently if the national law provided for it. As per GDPR, Member States are given the discretion to set out additional rules in the provisions. The Court agreed with the opinion of the Advocate General who had argued for admitting the German association.

Republic of Poland v. Parliament and Council
Decision Date: April 26, 2022
The Grand Chamber of the Court of Justice of the European Union (CJEU) dismissed the Republic of Poland’s action seeking annulment of Article 17 of Directive 2019/790 (Copyright Directive), which established a new specific liability mechanism in respect of online content-sharing service providers. As per Article 17 of the Copyright Directive, providers are directly liable where works and other protected subject matter are unlawfully uploaded by users of their services. The Grand Chamber issued this judgement looking at the compatibility of the Copyright Directive’s filtering requirements with the Charter of Fundamental Rights of the European Union. Poland through a legal challenge had argued that the provisions of the Copyright Directive requiring the providers to perform preventive monitoring by using automated filtering tools did not provide adequate safeguards to ensure that the right to freedom of expression and information was respected. With such risks, platforms would use automated filtering which can potentially undermine lawful online speech. The Court ruled, interpreting the provisions of Copyright Directive for the first time, holding that the obligation of the providers to carry out a prior automatic review of the content uploaded by users was accompanied by appropriate safeguards in order to ensure respect for the right to freedom of expression and information of those users.

United States
King v. Whitmer
Decision Date: August 25, 2021
A United States District Court held that attorneys who brought abusive litigation, based on false claims with no evidence, should be sanctioned. The attorneys had represented clients in primary litigation which had challenged the legitimacy of the presidential election in the United States. After the primary litigation was dismissed, applications for sanctions against the attorneys were brought on the basis that the attorneys had abused the court process. The Court dismissed the attorneys’ claim that their right to freedom of speech meant that they should be excused from basing their cases on false statements. It held that an attorney’s freedom of speech is “circumscribed upon entering the courtroom”, and that although an individual may make speculative statements on other platforms, an attorney is bound by legal processes and cannot rely on unsubstantiated claims, opinions and beliefs in their legal arguments. The Court held that by bringing a case based on false claims to further their political beliefs the attorneys acted with an improper motive and abused the court’s process and were therefore liable to sanction.

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.

Outcomes of the regional and thematic consultations to mark the 10th anniversary of the UN Plan of Action on the Safety of Journalists and the Issue of Impunity
This report produced by UNESCO provides an assessment of the achievements and best practices derived from the UN Plan of Action on the Safety of Journalists and the Issue of Impunity over the previous ten years, and provides recommendations to combat emerging challenges over the next decade. The UN Plan of Action for the Safety of Journalists arose out of a multistakeholder process to strengthen “peace, democracy and development worldwide” as part of the UN Sustainable Development Goals. The UN Plan seeks to “create a free and safe environment for journalists and media workers online and offline and both in conflict and non-conflict situations.” The report details the results of the consultative process in 2022 which included “five regional and sub-regional consultations (for Africa, South Asia, Latin America and the Caribbean, Arab States and Europe), two thematic consultations (on the safety of women journalists, on risk management and transparency of digital platforms), and a crosscutting academic consultation [which] brought together governments representatives, civil society organizations, academia, journalists, news organizations, IGOs and tech companies.”

Post Scriptum

● Journalism, media, and technology trends and predictions 2023 | Reuters Institute for the Study of Journalism. Reuters Institute has released its predictions for 2023. Their report considers how journalism will need to adjust to engage an increasingly despondent public prone to “news avoidance” in the face of uncertainty from global inflation, the ongoing crisis in Ukraine, and the ravages of climate change, among other chronic ills. The report foresees possible audience shifts away from Big Tech to new networks and applications. Advances in AI may offer new solutions to information overload, while at the same time raise troubling “existential and ethical questions.” According to a Reuters poll, 54% of respondents worry that many of the new online regulations to restrict “harmful” content will ultimately “make it harder to publish stories that governments don’t like.”

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