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.

● Inter-American Commission on Human Rights: Ensure protection against SLAPPs. On July 12, 2023, ARTICLE 19, in collaboration with Columbia Global Freedom of Expression and other freedom of expression organizations, held a public hearing on strategic lawsuits against public participation (SLAPPs) in Latin America, urging the Inter-American Commission on Human Rights and the Special Rapporteur on Freedom of Expression to take action. The organizations stressed insufficient attention to SLAPPs in the region: despite the threats such lawsuits present to freedom of expression, relevant standards and practice measures are lacking. With evidence of SLAPPs’ impact and journalists’ testimonies at the hearing, the organizations called for the “creation of a regional expert group to develop regional standards and recommendations on SLAPPs within the Inter-American human rights system.”

● Is Trump “too Big” for Trademark? Vidal v. Elster, No. 22-704, petition for review granted 6/5/2023, by Laura Little and Andrew Rosen. The Forum for Humor and the Law (ForHum) comments on yet another trademark case taken up by the Supreme Court. In 2018, The Patent and Trademark Office rejected a lawyer’s application to register a trademark “Trump Too Small” for t-shirt printing. The case reached the U.S. Court of Appeals for the Federal Circuit, which ruled the trademark act had violated the First Amendment. On June 5, 2023, the Supreme Court agreed to review the case. The ForHum authors wonder if the Court “will continue its trend of upholding the virtues of freedom of expression over federal trademark regulation, opining on satire and parody, have a little fun in a field of desert-dry cases, and (in the meantime) allow consumers to portray Trump’s smallness for all to see.”

● Upcoming Event – Cambridge Disinformation Summit. The focus of the conference is strategic disinformation – “an accelerant for major societal problems such as climate change, extremism, polarisation, fraud, and suppression of rights.” Bringing global leaders from various fields, the Summit will welcome interdisciplinary discussion angles, ranging from information science to psychology, journalism, financial reporting, and political science. The conference will address the impact of strategic disinformation on society, methods of disinformation dissemination, “the psychology of entrenched belief systems,” and ways to mitigate the problem. University of Cambridge, July 27 and 28, 2023. Register through this link to attend the event in person at King’s College, Cambridge. To join the conference online, register here.

We will be taking a short summer break but will be back in August!

Decisions this Week

European Court of Human Rights
Fragoso Dacosta v. Spain
Decision Date: June 8, 2023
The Fifth Section of the European Court of Human Rights (ECtHR) unanimously ruled that insulting a national symbol was protected speech and therefore, Spain violated the applicant’s rights under Article 10 of the European Convention of Human Rights (ECHR). The applicant, who was a trade union representative, shouted offensive words, inter alia towards the national flag during a protest about unpaid wages. He was criminally convicted, by national courts, for a criminal act of insulting Spain. The ECtHR found that the local courts did not take into account the context of the case, in particular that the impugned statements were related to the labor protest, that the applicant was a trade union representative, and that there was no public disorder, but merely offensive words. Thereby, the interference in the applicant’s freedom of expression was not necessary in a democratic society.

Saure v. Germany (No. 2)
Decision Date: March 28, 2023
The European Court of Human Rights held that Germany did not violate the rights of a journalist when it refused a request for information about the history of judges who had worked in the former German Democratic Republic (GDR) Security Service. The journalist had sought information on the names, places of work, history within the security service and details of cases related to the GDR the judges had decided. The German courts refused the application, holding that the judges’ rights to their reputation and the negative consequences of their identities being revealed outweighed the right to freedom of expression. The Court agreed with the domestic courts, finding only that the request for information on the judges’ history had not been properly determined by the German courts, but that, for all other requests, the personal rights of the individuals outweighed the journalist’s right to access to information, an element of the right to freedom of expression under the European Convention on Human Rights.

Gachechiladze v. Georgia
Decision Date: July 22, 2021
The Fifth Section Chamber of the European Court of Human Rights (ECtHR) found a violation of Article 10 (freedom of expression) in a case involving the restriction of a brand’s designs on condoms by domestic authorities. The Applicant condom brand “Aiisa” included various depictions, such as fictional characters, historical figures, and political events, as well as slogans reflecting social biases and support for the LGBT community in their packaging. The domestic court had considered the packaging as unethical advertising due to its insulting nature to the religious feelings of others and public morals. The domestic courts imposed a fine on the applicant and ordered to cease using and disseminating the designs on the product and on social media. The ECtHR noted that the domestic courts and government had viewed the designs solely as commercial expression, but the ECtHR disagreed, considering the social and political commentary they conveyed. It recognized that the designs had elements of public interest, aiming to challenge stereotypes and initiate a public debate.  The ECtHR criticized the domestic courts’ decisions for giving priority to the ethical views of the Georgian Orthodox Church over the values protected under the Convention and Constitution of Georgia. As a result, the ECtHR emphasized that the domestic courts had failed to demonstrate a “pressing social need” or provide sufficient justification for interfering with freedom of expression. Consequently, the ECtHR concluded that the reasons given by the domestic courts were insufficient, resulting in a violation of Article 10 of the Convention.

Murr Television v. Republic of Lebanon
Decision Date: October 14, 2020
The Judge for Urgent Matters in Beirut ordered the General Directorate of the Presidency of the Republic of Lebanon to reverse its decision to ban the local network television MTV from entering the premises of the presidential palace and allow it to access the areas designated for the media, like all other media organizations. The Presidency Directorate imposed this ban on the channel due to its continuous disrespect and attacks on the President, stating that the ban would only be lifted after the channel reconsidered its offensive approach towards the President. The Court held that the ban went beyond the Presidency Directorate’s scope of authority and represented a form of prior censorship, which infringed upon press freedom. The Court also emphasized that the ban violated the applicant’s rights to access information and freedom of expression protected under Article 13 of the Lebanese Constitution.

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.

Countering disinformation for the promotion and protection of human rights and fundamental freedoms
This Report of the UN Secretary General relates to General Assembly resolution 76/227. The report is in response to the new forms of disinformation on the rise globally in the digital age. It summarizes research and consultations on the issue undertaken by the High Commissioner for Human Rights and international and regional human rights mechanisms. In it, the Secretary-General “describes the challenges posed by disinformation and the responses to it, sets out the relevant international legal framework and discusses measures that States and technology enterprises reported to have taken to counter disinformation. The Secretary-General notes that countering the different manifestations of disinformation requires addressing underlying societal tensions, fostering respect for human rights, online and offline, and supporting a plural civic space and media landscape.”

Post Scriptum

● Making Systemic Risk Assessments Work: How the DSA Creates a Virtuous Loop to Address the Societal Harms of Content Moderation, by Niklas Eder. The article tackles systemic risk assessments – “a new regulatory approach to address the societal harms of online platforms” that the EU’s Digital Services Act (DSA) undertakes. Arguing the DSA fails to articulate how the approach will be implemented in practice, the author aims to fill the gap. To Eder, systemic risk assessments lead to platform accountability but also pose significant challenges, while conventional content regulation does not help define risk assessment obligations. The article calls for the Commission “to foster a procedural framework, a ‘virtuous loop’, which empowers civil society and allows to specify and refine the standards governing systemic risks over time.” Eder develops the framework and explains the relationship between systemic risk assessment and multi-stakeholderism.

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