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.

● New Special Collection Paper – Internet Shutdowns in International Law. This Special Collection paper authored by Joan Barata and Andrei Richter contributes to the discussions surrounding the internet and the challenges of its regulation. It is divided into two parts. Part one documents the international standards that have emerged pertaining to internet shutdowns, and part two explores the relevant case law at the national and international levels. The authors compile and reiterate what has become an international dogma of access to internet being an enabler of human rights. International mandates provide definition of the shutdowns and enumerate their threats to the whole palette of human rights. They draw the line between blanket shutdowns and specific forms of online censorship. Shutdowns are barriers to the universal access to the internet and to sustainable development, they abort freedom of expression and the right of access to information. Nevertheless, States find reasons to introduce internet shutdowns in the name of public interests to protect national security and public order. The paper reflects the international standards on the related modern arguments to justify shutdowns, such as disinformation and propaganda, as well as in situations of an imminent cyberattack from abroad.

● #MotiFiles: Moti Group granted secret court order muzzling investigative journalists. The Daily Maverick reports the amaBhungane Centre for Investigative Journalism was gagged on June 1 as the Moti Group, a company trying to curb a leak of compromising information about it, filed a secret application to the Johannesburg High Court and requested an urgent interdict. The court ordered amaBhungane, which started publishing the #MotiFiles investigations in April, to return the “leaked” documents to the Moti Group within 48 hours. The court also banned the journalists from publishing articles based on those sources until October. AmaBhungane has not been given a chance to argue the case and plans to fight the court’s order. “This kind of ex-parte prior restraint of publication and incursion into media freedom is unprecedented in the democratic era,” Sam Sole, the Centre’s managing partner, commented. 

● Regulating Online Platforms Beyond the Marco Civil in Brazil: The Controversial “Fake News Bill,”by Joan Barata, Senior Fellow at Justitia’s Future Free Speech project. The article, published by Tech Policy Press, discusses Brazil’s proposed law aimed at regulating online platforms and messengers. Barata argues that the Bill, commonly addressed as the “Fake News Bill,” endangers “many of the rights-protective innovations of Brazil’s most important internet law, the 2014 Marco Civil da Internet.” Turning to international human rights standards and comparing the Bill with the EU’s Digital Services Act, Barata examines six aspects of the proposal: intermediary liability, notice and action mechanism, content moderation, journalistic content removal, public interest social media accounts, and fake news criminalization. The article warns of infringements on the freedom of speech and calls for “the best technical proposals beyond superficial and politicized debates.”

● Call for Research Contributions – Forthcoming Launch of a One-Stop Open Online Platform on the Safety of Journalists. Led by Dr. Vera Slavtcheva-Petkova and funded by Research England, the project is a joint initiative of the University of Liverpool and the Worlds of Journalism Study, in cooperation with UNESCO. The project’s platform will present academic research in an understandable-for-all format and offer other relevant resources for scholars, students, and journalists. Aiming to improve journalists’ safety, it will introduce “the key stakeholders in the process of implementation of the UN Plan of Action on the Safety of Journalists,” bridging gaps between them. The project’s organizers welcome research contributions to be published on the platform’s website. For those interested, there are two steps. One survey invites researchers to submit their profiles, while the other calls for presentations of studies on journalists’ safety: one survey entry for one study submitted. The project’s platform – safetyofjournalists.org – will be launched in July 2023.

Decisions this Week

South Africa
Afriforum NPC v. Nelson Mandela Foundation Trust
Decision Date: April 21, 2023
The South African Supreme Court of Appeal confirmed the decision of the Equality Court that gratuitous displays of the old national flag constitutes hate speech, unfair discrimination and harassment. The case had been brought by a non-governmental organization after a protest march in 2017 had included the display of the old flag, and a foundation argued that these displays brought back painful memories of the inhumane apartheid system. An Afrikaans interest group opposed the application, arguing that the prohibition against hate speech in South African legislation applied only to verbal communication and so did not cover the physical display of a flag. The Court held that in order to give effect to the spirit of the Constitution, the purpose of the legislation and international legal obligations, hate speech must be interpreted to include the display of a flag. The Court ruled that as hate speech the displays of the old flag therefore did not constitute protected speech under the South African constitutional system.

United States
Netchoice v. Paxton
Decision Date: May 31, 2022
The Fifth Circuit Court of Appeals in Texas, US, overturned a preliminary injunction that had prevented the implementation of a bill which prevented social media content moderation. The Texas legislature had passed a law prohibiting the large social media platforms from censoring users’ posts based on viewpoint. The district court had found that the bill violated the platforms’ editorial discretion, protected under the First Amendment. The Court of Appeals held that the content moderation did not constitute First-Amendment-protected speech and the bill was therefore constitutional. This decision differs from a similar one in Florida, which had held that prohibiting content-moderation was a violation of the First Amendment. The Supreme Court will now determine the issue.

NetChoice v. Attorney General, State of Florida
Decision Date: May 23, 2022
The United States Court of Appeals for the Eleventh Circuit granted a preliminary injunction in respect of specific provisions of a Florida Senate Bill which sought to “combat the ‘biased silencing’ of ‘our freedom of speech as conservatives … by the “big tech” oligarchs in Silicon Valley’.” A trade association representing the big social-media platforms approached the courts, seeking an injunction on the enactment of the Bill, arguing that the law’s restrictions on the platforms’ content moderation and disclosure activities violated their right to free speech under the US Constitution’s First Amendment. The lower court granted the broad injunction. On appeal, the Court accepted that the majority of the contentious provisions were “substantially likely” to be unconstitutional, and so would meet the standards for a preliminary injunction. Following an analysis of all the impugned provisions, the Court declared that specific provisions requiring disclosure from the platforms were likely to be constitutional and so did not grant the injunction in respect of the enactment of those provisions. The Court stressed that social-media platforms engage in protected speech when moderating the content on their platform, and that, as private companies, are entitled to curate a specific type of content and community for their platform.

Italy
Attorney General v. Mr. Z.P.
Decision Date: November 3, 2020
The Italian Criminal Supreme Court confirmed a lower court’s decision that the publication of mocking posts on Facebook did not constitute persecutory acts (or “stalking”). After two individuals had been the subjects of posts on Facebook which caused anxiety and fear, a court of first instance convicted the author of the posts of persecutory acts. The Court of Appeals overturned the conviction. The Supreme Court emphasized that the determination of persecutory acts is context dependent, and that simply because a mocking post is made on a social media platform does not mean it is automatically an illegitimate form of expression.

Brazil
Charles Berbare v. Google Brasil Internet Ltda
Decision Date: August 17, 2017
The Court of Appeals of São Paulo rejected an application by a citizen that Google remove search results linked to articles about his illegal conduct. The citizen argued that links to articles about the criminal charges he was facing that he was illegally practicing medicine were harmful to his honor and reputation. The Court held that Google was not the publisher of the articles and that removing any links would be illegal as the question of the veracity of the article contents was not before them and that the population has the right to information about the facts reported in the articles.

Trama v. Google Brasil
Decision Date: November 29, 2016
The Court of Justice São Paulo, Brazil dismissed an appeal after a lower court refused a request for the de-indexing of articles from online search results. A Brazilian individual had been linked to a financial crime “mafia” and – although the criminal process was eventually terminated – there were various articles about his alleged involvement available online. The individual requested that search engines remove results about that criminal involvement from search results of his name. The lower court initially granted the de-indexing interim injunction, but later revoked that interim relief. The lower court held that the interests of freedom of expression of the press and society’s right to access to information should prevail in this situation. The appellate court dismissed the appeal, confirming the lower court’s decision.

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.

Defending creative voices: artists in emergencies, learning from the safety of journalists
This UNESCO report authored by Rosario Soraide is the result of in-depth research and the conclusions from 20 interviews with professionals with expertise in media freedom, artistic freedom, and the defense of human rights advocates and artists. It compares the safeguards and procedures in place to defend the legal rights of journalists and artists in urgent situations. The study’s overarching objective is to promote collaborations between groups that support the safety of artists and journalists. While highlighting ways in which cooperation could be advantageous to both the advocacy communities focused, respectively, on artistic and media freedom, it suggests concrete action to expand protection for artists’ safety in crises, learning from the advanced movement for the protection of journalists.

Post Scriptum

●  Moderator Mayhem: A Mobile Game To See How Well YOU Can Handle Content Moderation. Techdirt announced the launch of a new game created by Mike Masnick, Randy Lubin, and Leigh Beadon. A collaboration between Engine, Copia, and Leveraged Play, Moderator Mayhem is a browser-based mobile game. It puts you in charge of content moderation at a swiftly growing tech company and aims to challenge the following: the absence of experience in moderating user-generated content at a time of fervent discussions on free speech, user safety, and law compliance. The game comes as close to real life as possible. Its pressing time limitations, company policies, decision appeals, growing flagged content, job insecurity, and public and media views make it mayhem to navigate indeed. Can you manage? Try it out now.

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