Global Freedom of Expression, Columbia University: Newsletter w/e 9 June 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
Künast v. Facebook
Decision Date: April 8, 2022
The Regional Court (Landgericht) of Frankfurt am Main, Germany, granted damages and an injunctive relief against Facebook ordering the company to cease and desist from disseminating memes violating the general right of personality of Renate Künast —a German politician—, by misquoting her. The Court also ordered Facebook to monitor new memes that include similar unlawful content. The case was brought by Künast after she was continuously misquoted on Facebook regarding her opinions on integration. For the Court, these misquotations violated Künast’s general right of personality. The court held that hosting services (social media platforms) have duties of care and are therefore liable for unlawful content on their platform as soon as they obtain knowledge of it and do not take immediate action to block it. This obligation rests on the specific infringing content, similar content, and content that is substantially the same.

Blume v. Twitter
Decision Date: December 14, 2022
The Regional Court (Landgericht) of Frankfurt am Main, Germany, issued a preliminary injunction ordering Twitter to cease and desist from disseminating statements —and monitor new posts— that violate the general right of personality of Dr. Michael Blume, the Anti-Semitism Commissioner of the state Baden-Württemberg, by accusing him of being anti-Semitic, an adulterer and having pedophilic tendencies. Dr. Blume applied for a preliminary injunction requesting the deletion of the aforementioned content and for Twitter to desist from disseminating these messages. The Court held that these tweets were unlawful defamatory statements violating Blume’s general right of personality. Referring to the jurisprudence of Germany’s Federal Court (Bundesgerichtshof, BGH), the Court held that a hosting service has the obligation to remove unlawful content as soon as it obtains knowledge of it. This obligation, the Court argued, stems from the hosting service’s duty of care (“Störerhaftung”). The Court extended this obligation —making reference to rulings of the European Court of Justice (ECJ) and the Bundesgerichtshof— to content on the platform that is substantially the same (“kerngleich”) or similar.

Court of Justice of the European Union
The Case of SpaceNet and Telekom Deutschland
Decision Date: September 20, 2022
The Court of Justice of the European Union (CJEU), in two related Grand Chamber judgments, ruled that the German law on data retention is incompatible with European Union (EU) law. The case concerns joined applications by the two telecommunication services operators i.e., SpaceNet and Telekom Deutschland who challenged German Telecommunication Law (2004) on the ground that the obligation imposed on them to retain traffic and location data of their customers violates EU Law. The Administrative Court of Germany observed that the Applicants were not obligated to retain the mentioned telecommunications traffic data as per the German Telecommunication Law. The Federal Court, on appeal, concluded that the German Telecommunication Law aligns with EU law based on the argument that regulations concerning the retention of traffic data, location data, and access to such data by national authorities generally fall within the scope of Directive 2002/58. The CJEU, in line with its prior case law, held a contrary view and affirmed that EU law prohibits any national legislation that mandates the widespread and indiscriminate retention of traffic and location data for preventive purposes in combating serious crime and averting significant threats to public security.

European Court of Human Rights
Ibragim Ibgragimov and Others v. Russia
Decision Date: February 4, 2019
The Third Section Chamber of the European Court of Human Rights (ECtHR) unanimously concluded that Russia violated the right to freedom of expression by prohibiting the publication and distribution of religious books. The case revolves around the challenge to the Russian Court’s decision, which declared the religious books written by Muslim Turkish Scholar Said Nursi from the Risale-I Nur Collection as “extremist material”. The ECtHR observed that the national courts failed to adhere to the principles outlined in Article 10 of the European Convention on Human Rights (ECHR) and instead, they excessively relied on expert evidence without conducting a proper evaluation of their own. Furthermore, the ECtHR held that the national courts neglected to provide the Applicants with an opportunity to present their own evidence, thereby violating the fundamental principle of “equality of arms”. After assessing Said Nursi’s teachings, the ECtHR concluded that they were of a moderate and non-violent nature. Despite the availability of his books in various countries, including Russia, there was no substantiated evidence indicating any harmful consequences resulting from individuals reading his works. Additionally, the Court dismissed the government’s objection to the case under Article 17 since the books promoted a moderate and non-violent understanding of Islam.

Soulas and Others v. France
Decision Date: October 10, 2008
The Chamber of the Fifth Section of the European Court of Human Rights (ECtHR/Court) found no violation of the right to freedom of expression in a case concerning the French Court’s decision to ban and penalize the book on the ground of provoking hatred and violence. The three Applicants, whose book The Colonization of Europe: True Speech on Immigration and Islam, was declared an object of inciting discrimination, hatred, or violence based on origin, race, ethnicity, or religion under French law, claimed a violation of Article 10 under the European Convention of Human Rights (ECHR). The ECtHR concluded that there was no violation of Article 10 since various passages from the book portrayed the targeted communities negatively and depicted immigration as a disastrous phenomenon. The ECtHR affirmed that the reasons provided by the Court of Appeal for the Applicants’ conviction were relevant and sufficient, and the limits imposed did not exceed the domestic authorities’ margin of appreciation.

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.

Recommendation CM/Rec(2022)16 of the Committee of Ministers to member States on combating hate speech
The Recommendation places itself among the current rules and procedures for addressing hate speech as well as in the larger context of European and international human rights law. It draws on the substantial body of case law from the European Court of Human Rights. The recommendation offers states and a variety of various players, including politicians and political parties, internet platforms, media, and civil society organizations, useful advice as well as a complete legal and policy framework to address hate speech, both offline and online.

Post Scriptum

● Public and Private Power in Social Media Governance: Multistakeholderism, the Rule of Law and Democratic Accountability, by Rachel Griffin. The article, published in the Transnational Legal Theory journal, examines two dominant schools of thought addressing social media platforms and their accountability – multistakeholderism vs. rule of law. Unpacking their differences, Griffin argues the two approaches nevertheless align in their “tech exceptionalist” view of social media platforms and their focus on regulating and constraining the platforms’ power seen as competing with the state. To Griffin, the two fail at delivering the desired accountability. The article calls for structural reforms aimed at social media markets and “in line with an ideal of economic democracy,” aiming “to prevent socially harmful business models, reduce concentrated corporate power, strengthen media pluralism, and open up spaces for media production and communication which are insulated from market forces.”

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