Global Freedom of Expression, Columbia University: Newsletter w/e 18 March 2023

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.

Decisions this Week

Germany
The Case of Lieutenant Colonel Anastasia Biefang using the dating platform Tinder
Decision Date: May 25, 2022
The Federal Administrative Court of Germany held that military commanders must consider the impact on their professional reputation and trustworthiness when posting personal advertisements on online dating platforms, and must therefore exercise restraint. A well-known female commander in the German Federal Armed Forces had created a profile on the dating portal Tinder and had received a disciplinary reprimand, which she challenged before a military service court. The military service court had held that a soldier has an off-duty duty of good conduct and may not seriously damage the reputation of the armed forces. The Federal Administrative Court found that military commanders must avoid formulations on dating platforms that create the impression of an indiscriminate sex life and a significant lack of integrity of character, and held that the commander’s dating profile was subject to a reprimand as the mildest disciplinary measure.

The case of polemical statements of an evolutionary biologist on “marriage for all”
Decision Date: February 8, 2022
The Frankfurt Higher Regional Court in Germany ruled that polemical and exaggerated statements were protected by the freedom of expression and did not constitute a punishable insult. A former university professor of plant physiology and evolutionary biology, had been criminally charged after criticizing the equal status for same-sex marriages and a possible adoption right for same-sex couples. After the first instance court convicted the professor for insult, he successfully appealed the judgment and was acquitted. The prosecutor appealed the acquittal to the Higher Regional Court. The Court held that the professor’s statements were protected under freedom of expression as statements of opinion, and found that addressing a collective group rather than identifiable individuals did not have any impact on the personal honor of individual persons.

Brazil
Coligação O Povo Feliz de Novo v. Bolsonaro
Decision Date: October 28, 2021
The Brazilian Superior Electoral Court dismissed challenges made to the candidacy of Jair Bolsonaro and his running mate on the basis of newspaper reports of illegal campaign financing. After a newspaper ran a story about private companies’ payments to Bolsonaro’s campaign and the use of mass-messaging tactics – both prohibited by Brazilian electoral law – a coalition of opposition parties challenged the legitimacy of the candidacy, arguing it had committed an abuse of economic power and misuse of media. The Court accepted that disseminating disinformation can lead to the revocation of mandate and suspension of political rights for eight years, but dismissed the applications in this particular case.

Haddad v. Bolsonaro
Decision Date: October 15, 2018
The Brazilian Superior Electoral Court ordered the removal of false information from a presidential candidate’s campaign publications. After presidential candidate Jair Bolsonaro accused his opponent of distributing a “gay kit” in schools during his time as Minister of Education, a coalition of opposition political parties approached the court, seeking the removal of that information and requesting a right of reply. The Court accepted that the information was false and so ordered its removal, but found that the politician had had sufficient opportunity to respond and so denied the request for a right of reply.

Canada
1704604 Ontario Ltd. v. Pointes Protection Association
Decision Date: September 10, 2020
The Supreme Court of Canada upheld a lower court decision that granted a motion to dismiss —under s. 137.1 of the Courts of Justice Act (CJA)—  a breach of contract action against a non-profit corporation, Pointes Protection, because its president testified before Ontario Municipal Board (OMB) against a company’s development plan due to its negative impact. The breach of contract action was brought by 1704604 Ontario Limited, a company that wanted to develop a 91 lot subdivision, who considered that Pointes Protection breached a settlement when its president testified before the OMB. Pointes Protection lodged a motion to dismiss pursuant to s. 137.1 of the CJA — amended in 2015 to mitigate the effects of strategic lawsuits against public participation (SLAPPs). The motion was denied in the first instance and later granted on appeal. The Supreme Court held that the underlying proceeding brought by 1704604 Ontario lacked substantial merit since it had no real prospect of success. Likewise, the Court highlighted that the expression of Pointes Protection related to matters of public interest and deserved protection.

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.

Hate-Speech Bans Are Consonant with Liberal Principles.
This chapter by Steven J. Heyman is part of The Oxford Handbook of Hate Speech, edited by Eric Heinze, Natalie Alkiviadou, Tom Herrenberg, Sejal Parmar and Ioanna Tourkochoriti. Heyman relies on the theories of John Locke which “addressed the problem of speech that denies the equal status and rights of others” to argue “that bans on public as well as private hate speech can be consonant with liberal principles.”  Heyman seeks to develop a general theory of free expression which he calls liberal humanism and is based on respect for human freedom and dignity. The right to free speech, according to his theory, may be restricted if it threatens “the right to be recognized and treated as a human being and a member of the community.” The chapter also challenges two leading critiques of hate speech laws based on grounds that they violate individual autonomy and undermine democratic legitimacy.

Post Scriptum

● You Have the Right to Remain Silent, Your Lyrics May Be Used Against You in the Court of Law: The Entertainment and the Introduction of Artistic Expression as Evidence. This paper by Emily LaPlante of Southern University Law Center explores the emergence of Hip Hop from a musical genre to a reflection of a “consciousness of society,” where lyrics have been presented as evidence of crimes before courts. The author discusses a range of case law, including a seminal case from Georgia where a record label and its artists faced charges under The Racketeer Influenced and Corrupt Organizations (RICO) Act. States are now considering legislation to either “protect musical art or [determine] whether lyrics can be deemed as confessions or admissions and thus used as evidence.” Laplante opines that “[t]he use of hip-hop lyrics as evidence will change the landscape of the culture and music industry.”

● Investing in Facts: How the Business Community Can Support a Healthy Infosphere. This report by Marius Dragomir for the Center for International Media Assistance and the Center for International Private Enterprise, presents a variety of ways that the private sector can support a healthy information space. “Drawing on case studies conducted in Czechia, Romania, and Serbia, this report highlights existing examples of the private sector rising to the challenge of information disorder in Central Europe and provides recommendations for how the business community can meaningfully support independent media and protect information integrity.”

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