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 – Humor and Free Speech: A Comparative Analysis of Global Case Law by Alberto Godioli and Jennifer Young of the University of Groningen, the Netherlands. Humor is a pervasive element of human communication and a fundamental ingredient of democratic life. Throughout history, it has been used as a vehicle to poke at the powerful, engage in socio-political commentary, or collectively negotiate social boundaries and norms. As a consequence, courts from all over the world have often stressed the importance of protecting humorous expression. At the same time, the elusive and subjective nature of humor poses specific challenges for free speech adjudication. This paper discusses international trends and recurring issues in humor-related jurisprudence, by analyzing 81 cases from across the globe. The cases are organized around five key – and sometimes intersecting – themes, namely (1) Satire, defamation and other individual dignitary harms; (2) Disparaging humor and hate speech; (3) Humor, violence and public unrest; (4) Parody, copyright and trademarks; (5) Humor and “public morals.” Building on the analyses provided in the GFoE database and on a growing body of interdisciplinary work on humor and the law, the paper also highlights the benefits of a closer dialogue between legal scholarship and practice on the one hand, and humanities-based humor research on the other.

● New Special Collection Paper – Case Law on Content Moderation and Freedom of Expression by Erik Tuchtfeld of the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany. The state of freedom of expression online is substantially shaped by the moderation of content on dominant social media platforms. Their private community guidelines are the legal framework for discussions in the digital realm. Effectively, they constitute global law applying to billions of individuals, set by a few companies of the Global North. This raises fundamental questions on how to deal with private power. The answer varies substantially, depending on the legal culture: Some, in particular the United States, emphasize the principle of private autonomy, while others view it as an anti-trust problem. This paper examines the accumulation of private corporate power over freedom of speech as a human rights problem. Claimants all around the world have initiated legal actions based on the assumption that a particular act of content moderation—such as the (non-)removal of content, account suspensions or deletions, among others—, violated their human rights. The carefully chosen sample, from over 100 cases surveyed, aims to cover and contextualize the most important legal debates that courts are currently facing on this matter. The jurisprudence presented in this paper is divided into three main sections: Cases against intermediaries, cases against public officials, and cases dealing with the actions taken by states to enforce a particular kind of content moderation on private social media platforms. It also tries to showcase the different pathways taken by judicial bodies when solving these issues.

● Global Expression Report 2023. Article 19 has just released its annual Global Expression Report (GxR) – a look at 161 countries through 25 indicators that evaluate free expression and information. The report’s several expression categories – Open, Less Restricted, Restricted, Highly Restricted, and In Crisis – show a general decline for the countries examined. More than six billion people have less freedom of expression if compared with the previous decade: that is, 80% of the globe has seen an increase in repressions in the last ten years. According to the report, “Only 13% of us now live in Open countries – fewer people than at any time this century so far.” Learn more and see the study’s interactive maps and visualizations here.

Decisions this Week

United Kingdom
Shazam Productions LTD v. Only Fools The Dining Experience LTD et al.
Decision Date:  June 8, 2022
The Intellectual Property Enterprise Court (IPEC) of the High Court of England and Wales (EWHC) ruled that the immersive theatre experience “Only Fools the Dining Experience” (OFDE) infringed copyright by using characters, themes, catchphrases, and other elements from the popular British television show “Only Fools and Horses” (OFAH). The plaintiff, Shazam, claimed that OFDE was an imitation of the television show OFAH, and so infringed its copyright. The defendant argued that OFDE was protected under copyright law because it was a parody intended to pay tribute to the popular program. The Court held that the defendants had taken extensive material from the OFAH program and that the character “Del Boy” was protected as a work of authorship under EU Copyright law. The Court rejected OFDE’s defense of parody and pastiche, stressing that the imitations could not be equated with “parodies”. The Court also held that the imitation did not constitute fair dealing.

Barilaro v Google LLC
Decision Date: June 6, 2022
The Federal Court of Australia has ordered Google LLC to pay AUD $715,000, as damages to John Barilaro, the applicant who was the target of defamatory content and false imputations on YouTube in violation of the law. John Barilaro, the former Deputy Premier of New South Wales, filed a defamation suit against Jordan Shanks and Google Incorporation due to a relentless, racist, vilifying, abusive, and defamatory campaign run by Mr Shanks on YouTube. However, during the legal proceedings, the applicant and Mr Shanks reached a settlement. The Court observed that individuals involved in politics take on the risk of being subjected to harsh public criticism, which might be acceptable as freedom of expression, but not even politicians are expected to be subjected to abuse, hate, racism, and defamation merely because they operate in the sphere of public interest. The Court also noted that the platform on which content is published (the publisher) has certain liabilities regarding content that violates the law as such violations can result in the imposition of aggravated damages against the publisher.

Tallon v. DPP
Decision Date: May 31, 2022
The High Court of Ireland has ruled that orders made by the District Court under sections 115 and 117 of the 2006 Criminal Justice Act, which are concerned with anti-social behaviour, went beyond the legal authority of the District Court and should be quashed. The case concerned the Applicant’s preaching and/or public speaking in Wexford Town, which led to the imposition of a civil order by the District Court under section 115 of the Criminal Justice Act. The order barred him from “engaging in public speaking and recording anywhere within the environs of Wexford Town… at any time.” The Court noted that the anti-social behaviour order was disproportionate and infringed upon the Applicant’s rights to equality before the law and to freely communicate due to the failure to tailor the civil order to show the recurrence of the offending behaviour coupled with the broad definition of anti-social behaviour.

United States
FBI v. Fazaga
Decision Date: March 4, 2022
The United States Supreme Court unanimously reversed the ruling of the Ninth Circuit that section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 (FISA) displaces the state secrets privilege in cases involving electronic surveillance. The respondents, Yazzie Fazaga, Ali Malik, and Yasser Abdel Raheem, three Muslim residents, filed a class action suit against the Federal Bureau of Investigation (FBI), alleging that they were subject to illegal surveillance by FBI along with other Muslims under FISA. The state secrets privilege is “[g]overnment privilege against court-ordered disclosure of state and military secrets”, while FISA provides special procedures for use when the Government wishes to conduct foreign intelligence surveillance. In this case, the Court noted that the lack of any reference to the state secrets privilege in FISA represents strong evidence that the state secrets privilege should not be regarded to have been revoked or restricted unless Congress has used clear statutory language to that effect. The Court also noted that “nothing about the operation of § 1806(f) is incompatible with the state secrets privilege” since they are invoked in different cases.

Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse)
Decision Date: October 29, 2021
The Supreme Court of Canada held that jokes made by a comedian—Mike Ward—at the expense of a famous, disabled child—Jérémy Gabriel—did not amount to a discriminatory violation of Mr. Gabriel’s right to the safeguard of his dignity under Quebec’s Charter of Human Rights and Freedoms. The jokes at issue expressly mocked Mr. Gabriel’s disability as part of a comedy routine targeting Quebec celebrities whom Mr. Ward believed benefited from a social taboo against making fun of them. The jokes included ridiculing Mr. Gabriel’s appearance and singing, and commenting on his having lived beyond early childhood – referring to him as being “unkillable.” Mr. Gabriel’s parents complained about the jokes to the Commission des droits de la personne et des droits de la jeunesse, and the Commission brought a discrimination claim on their behalf to the Quebec Human Rights Tribunal. After the Tribunal held that Mr. Ward’s jokes amounted to discrimination on the basis of disability and ordered him to pay $35,000 CAD in damages to Mr. Gabriel in compensation—a decision upheld by the Quebec Court of Appeal—Mr. Ward appealed to the Supreme Court of Canada. The Court allowed Mr. Ward’s appeal, holding that both the Tribunal and Court of Appeal erred in articulating and applying the legal framework for adjudicating the discrimination claim against Mr. Ward. Moreover, the Court concluded that, applying the proper legal framework, Mr. Ward’s jokes did not amount to discrimination for three reasons: first, Mr. Ward targeted Mr. Gabriel due to his fame, rather than his disability; second, the jokes did not incite others to vilify Mr. Gabriel or to detest his humanity on the basis of his disability; and third, the jokes were unlikely to lead to discriminatory treatment of Mr. Gabriel.  In doing so, the Court stressed the importance of protecting freedom of expression, including artistic freedom, while affirming that freedom of expression is not absolute in Canadian law.

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.

Using International Law to Defend Free Speech in the Digital Age: A Guide for Human Rights Advocates
From the Preface: This toolkit was created by International Senior Lawyers Project (ISLP) to share strategies for defending media freedoms in the digital age with lawyers and human rights defenders. ISLP’s Media Law Working Group has, for the past 20 years, protected freedom of expression by supporting journalists and watchdog non-governmental organizations that investigate, report on, and litigate matters involving the right to freedom of expression. ISLP’s Media Law Working Group also provides legal advice on telecommunications, freedom of information, and privacy laws. ISLP believes that freedom of expression is necessary for a transparent, accountable, and democratic government and is the foundation of a free society. This toolkit was developed from the publishers’ experience working with lawyers, journalists, and human rights defenders in Southern and Eastern Africa. ISLP has worked with local Media Institute of Southern Africa (MISA) chapters to train lawyers and human rights defenders from Malawi, Mozambique, Zambia, and Zimbabwe on protecting freedom of expression using international law arguments. The practical information provided in this toolkit is designed to enable local advocates to use international law in regional bodies to defend freedom of expression and argue for stronger human rights protections in SADC. This resource focuses on international law arguments to defeat criminal defamation and cyber libel charges brought against journalists and bloggers.

Post Scriptum

● Laughter in the Dark. Egypt to the Tune of Change, by Yasmine El Rashidi. The book, published by Columbia Global Reports, explores Egypt’s youth culture and asks, “Could this be the start of a force for change?” To Yasmine El Rashidi, music is the means of expression for young Egyptians, who comprise sixty percent of the country’s population. The author emphasizes the impact of mahraganat, a popular street music genre. “This music has given voice to deep dissatisfaction with the Egyptian state and the overall conditions of Egyptian society and culture,” the author writes. Portraying Egypt’s vibrant music scene, the book dives into the moment of transformation cultivated by the country’s youth.

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