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 – Case Law on Peaceful Protests. This Special Collection paper authored by Ona Flores surveys 178 leading judgments and decisions concerning peaceful protests to provide a diverse and cross-cutting sample of cases covering a wide range of geographies and issues. Peaceful protests and demonstrations have always been an essential means of the social, economic, and political transformations that have characterized human history. Recent years have seen a continuous rise in protest movements, with mass demonstrations erupting almost daily worldwide for various causes. Protests are also growing in complexity. Digital technologies have brought enormous opportunities for organizing, participating in, and reporting on protests, but have also introduced risks as well as tools for government repression. These trends have garnered new attention from legal practitioners and the last decade has seen increased efforts by civil society organizations to use courts (domestic and regional), as well as international human rights bodies, to advance protection of human rights in the context of peaceful protests. This paper, while not exhaustive, summarizes relevant principles of international human rights laws on the right to peaceful assembly and freedom of expression, and provides a general overview of this growing jurisprudence organized by themes and issues commonly addressed by courts around the world.

● New Special Collection Paper – Case Law on Hate Speech: The Enduring Question of Thresholds. This Special Collection paper authored by Natalie Alkiviadou sets out the trends and practices across regional and international institutions in relation to their approach towards and handling of hate speech. To do so, it relies on the Global Freedom of Expression database and the databases of the Future of Free Speech Project (Justitia). It aims at constituting a guide for human rights defenders, scholars, lawyers and civil society organizations as well as members of the judiciary, the legislature and policy makers by presenting international, regional and some national standards and case-law on “hate speech.” It starts off with a conceptual framework, providing different definitions and conceptualizations of hate speech by regional/international institutions and experts. After briefly setting the semantical scene of hate speech, the report provides an overview of relevant international/regional legal standards vis-à-vis hate speech. The final section of the report is a jurisprudential overview of hate speech by broadly defined themes, namely, genocide denial and antisemitism, ethnic and religious hate speech and sexual orientation.

● On the Abuse of Human Rights Law in Sri Lanka: The Arrest of Nathasha Edirisooriya, by Dr. Alberto Godioli. The article, written for The Forum for Humor and the Law (ForHum), discusses the arrest of Sri Lankan comedian and human rights activist Nathasha Edirisooriya under Section 3 of the ICCPR, which “makes it an offense for a person to propagate war or to advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” Unpacking the comedian’s contested jokes, Godioli shows they do not meet the gravity of hate speech as defined by international standards. To underscore that, the article refers to the Rabat Plan of Action and landmark cases that recognized the importance of humor. “[Edirisooriya’s] arrest is a stark demonstration of how authoritarian governments can twist the spirit of human rights provisions such as the ICCPR, and use them to stifle those very rights that they were supposed to protect,” Godioli writes.

● Turkey: İFÖD Report On The Right (Not) To Be Forgotten. The Freedom of Expression Association (“İfade Özgürlüğü Derneği – IFÖD”), based in Istanbul, published “The Right NOT to Be Forgotten on the Internet: Freedom of Expression Assessment of the Application of the Turkish Right to Be Forgotten Measures under Law No. 5651.” Authored by Yaman Akdeniz, the report unpacks the approach that criminal judgeships undertook to “protect personal rights” while applying Law No. 5651. It evaluates the judgeships’ case law references and their considerations of freedom of expression and press freedom. The study also examines how sensitive the judges were to the removal of political content from press archives and “whether the right to be forgotten was used as a separate censorship mechanism.”

Decisions this Week

United States
Twitter v. Taamneh
Decision Date: May 18, 2023
The Supreme Court of the United States admitted an instant petition and ruled that Facebook, Google, and Twitter were not liable for “aiding and abetting” the Reina nightclub terrorist attack—perpetrated by ISIS—under §2333 of the U.S. Code. In the present case, the family members of the victim Nawras Alassaf filed a lawsuit against the aforementioned companies—owners of social media platforms—for providing substantial assistance to ISIS in carrying out this act of international terrorism. The respondents alleged that these social media companies knew that ISIS used their platforms to recruit people and raise funds for the attacks, yet failed to detect and remove their accounts, posts, and videos. Further, the respondents contended that the “recommendations” algorithm of these companies matched ISIS’ content with users more likely to be interested in their posts. However, the Court held that the mere failure to remove the content could not constitute “substantial assistance” unless an independent duty to act was identified. The Court concluded that the appellants were not liable for “aid and abetment” under §2333 of the U.S. Code, since the respondents failed to establish the appellants’ active involvement, for instance, by showing that they provided special treatment to the terrorist organizations, and the only “affirmative” act in the present case was to create social media platforms.

Gonzalez v. Google (SCOTUS 2023)
Decision Date: May 18, 2023
The Supreme Court remanded the petitioner’s case back to Ninth Circuit for consideration of the complaint in light of its ruling in the Twitter v. Taamneh case. In the instant case, a series of coordinated attacks were carried out by ISIS terrorists in Paris, France, resulting in the deaths of 130 individuals, including Nohemi Gonzalez, a 23-year-old U.S. citizen. Following the attack, Gonzalez’s parents and brothers filed a lawsuit against Google, LLC, citing violations of 18 U.S.C. §§2333(a) and (d)(2). The Court held that the petitioners were unable to establish Google’s direct or secondary liability in carrying out the terrorist attack.

Gonzalez v. Google (9th Cir. 2021)
Decision Date: June 22, 2021
The United States Ninth Circuit Court of Appeals affirmed two rulings, and reversed another one, regarding social networks’ responsibility in three different terrorist attacks, and held that interactive computer services (such as Google, YouTube, Twitter, and Facebook) do not create nor develop content and cannot be held liable for content posted by a third-party. The applicants, families of US national victims who lost their lives in three different acts of terrorism perpetrated by ISIS, argued that Google, YouTube, Twitter, and Facebook should be liable for allowing ISIS to use their platforms, disseminate their messages, and share ad revenue with the terrorist organization. The defendants argued that they were only internet providers that enjoyed immunity regarding the contents they displayed but not produced. The first instance court ruled in favor of the defendants in the three different cases. On appeal, the Ninth Circuit Court analyzed the three judgments together and agreed with the fact that Google, YouTube, Twitter, and Facebook only provide the public with access to their platforms, and thus, are not exposed to liability for content posted by third parties. Furthermore, it held that aiding and abetting an act of international terrorism requires more than the provision of material support to a terrorist organization. However, in one of the cases, the Court held that the defendants provided services that were central to ISIS’s growth and expansion and held that the applicants adequately stated a claim for secondary liability.

The African Court on Human and Peoples’ Rights
Noudehouenou v. Benin
Decision Date: December 1, 2022
The African Court on Human and Peoples’ Rights held that Benin’s Criminal Code violated the right to freedom of expression, as enshrined in Article 9(2) of the African Charter on Human and Peoples’ Rights (the Charter), because it restricted the possibility of commenting and critiquing judicial decisions only to specialized journals without a legitimate aim. Mr. Houngue Éric Noudehouenou, the applicant, claimed that this limitation to the right to criticize courts’ decisions —approved by the Government and the Constitutional Court of Benin— violated Article 9 of the Charter. The Respondent State did not submit any allegations. The Court ruled that the restrictions provided for in the Criminal Code were vague and that there was “no compelling need to restrict citizens to certain means of communication thereby depriving them of having recourse to others which are available to them to make technical comments on court decisions and thus to exercise their right to freedom of expression.” The Court ordered Benin to bring the Criminal Code in line with Article 9 of the Charter and awarded the plaintiff reparation for moral damages.

Unconstitutionality of the last paragraph of article 1392 Bis of the Civil Code of Mexico City
Decision Date: November 23, 2022
The First Chamber of the Supreme Court of Mexico granted an “amparo” (habeas corpus) against the last paragraph article Article 1392 Bis of the Civil Code for Mexico City, which ordered the erasure of publicly available digital information regarding a deceased person unless, in their will, the testator expressed their intention to preserve it. In its decision, the Court found that the challenged portion of the law was unconstitutional since it was contrary to the rights of freedom of expression and access to information. Particularly the Court considered that the terms in which the provision was drafted instigated undesirable self-censorship to avoid potential liability. The Supreme Court pointed out that the so called-right to be forgotten was not regulated in Mexico and thus could not be applied without nuances since, according to the Constitution, public information remained as such regardless of factors such as the time that could affect the very essence.

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.

HELP Course on Freedom of Expression for Greek judges and prosecutors
This Greek version of the HELP Course on Freedom of Expression (in Greek) was launched by the Department for the Execution of Judgments, in cooperation with HELP’s national partner, the Greek National School of Judges. The course discusses European standards on freedom of expression as applied in recent European Court judgments involving Greece finding violations of Article 10. It reviews 2 groups of cases, in particular. The Vasilakis group “concerns violations of the applicants’ freedom of expression due to civil courts’ decisions by which they were ordered to pay damages for defamation, slanderous defamation or insult, through articles published in the press or broadcastings of secretly filmed video-recordings.” The second group, the Katrami group, “concerns violations of the applicants’ freedom of expression due to the criminal convictions imposed on them for insult, defamation or malicious defamation.” Program materials include the online course, a Thematic Fact Sheet on Freedom of Expression (English), and a country fact sheet for Greece (English).

Post Scriptum

● Myanmar: Report on Developing a System for Professional Media Regulation. The Centre for Law and Democracy (CLD) has just released a “Note on Professional Regulation of the Media,” which focuses on Myanmar. The Note is part of CDL’s effort to help local actors cooperate in setting up a self-regulatory system to bolster independent media’s professionalism. The Note starts with surveying the three key approaches to regulation: self-regulation, co-regulation, and statutory regulation. It then unpacks the first two approaches in detail. Finally, emphasizing practice and Myanmar’s context, the Note discusses the development of a self-regulatory system – “the only option given the current situation.” Read the report in English or Burmese.

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