Global Freedom of Expression, Columbia University: Newsletter w/e 5 August 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

South Africa
Mazetti Management Services v. amaBhungane Centre for Investigative Journalism
Decision Date: July 3, 2023
A South African High Court set aside an interim injunction which had ordered a media entity to return documents it had in its possession and restrained them from further publication. After a series of articles critical of a group of companies were published, the group of companies obtained an ex parte order from the High Court which ordered the return of documents the companies believed had been stolen from them and prohibited further publication of articles based on those documents. In a reconsideration hearing, the Court found that the application and granting of that order was an abuse of process and constituted a SLAPP suit. The Court confirmed that South African law protects the confidentiality of sources and allows for prior restraints on publication only in exceptional circumstances.

United States
Jack Daniel’s Properties, Inc. v. VIP Prod. LLC
Decision Date: June 8, 2023
The Supreme Court of the United States held that the parody of a product is not always protected by the right to freedom of expression and that it might be, instead, regulated by trademark law. In this case, VIP Products made a chewable dog toy designed to look like a bottle of Jack Daniel’s whiskey. Jack Daniel’s Properties requested VIP to stop selling the product alleging consumers were likely to be confused about the origin of the toy and because the toy had negative associations with dog excrement that would harm Jack Daniel’s reputation. Before a District Court, Jack Daniels’ claim prevailed, but the United States Court of Appeals for the Ninth Circuit reversed the judgment, as it considered that the toy was a parody of Jack Daniel’s and an expressive artistic work that conveyed a humorous message, thus, protected by the First Amendment. However, the Supreme Court rejected this conclusion and affirmed that parody cannot be a shield against trademark claims when the mark is used as source-identifying —i.e. when the accused infringer used a trademark to designate the source of its own goods. The Supreme Court vacated the judgment and remanded it for further proceedings since it considered that lower courts should be the ones delivering the final decision on the application of trademark law.

Yankee Publishing Inc. v. News Am. Publishing Inc.
Decision Date: December 17, 1992
The U.S. District Court for the Southern District of New York held that when an unauthorized use of a trademark does not concern the source of the product, and implies an expressive content that is clearly recognizable as a parody or as a joke, it is protected under the First Amendment and the right to freedom of expression. The case involved New York magazine’s cover design, published by News America Publishing Incorporated, which made reference to another magazine’s cover design, The Old Farmer’s Almanac, a distinctive trademark published by Yankee Publishing Incorporated. Yankee Publishing Incorporated, as the publisher of the Almanac, and International Licensing Management Inc. —the licensing agent— filed a lawsuit against News America Publishing Incorporated, New York magazine’s publisher, because it considered that confusion was created in the marketplace regarding who was responsible for the publication, and that it diluted the value of their own trademark. News America Publishing Incorporated responded that there was no likelihood of confusion or other injury to the plaintiffs’ mark because it was clear that it was making a joke. Furthermore, it also argued that if there was any kind of confusion, it derived from an artistic expression that was protected by the First Amendment. The Court ruled in favor of the defendant, and found that the danger of public confusion regarding the source of origin was minimal, and that, in any case, the public interest in avoiding confusion was clearly outweighed by the public interest in free expression.

Netherlands
Plaintiff 1 v. YouTube
Decision Date: September 9, 2020
The Amsterdam District Court denied a motion to reinstate two videos—about the efficiency of hydroxychloroquine to treat COVID-19—on Café Weltschmerz’s YouTube channel. Both videos contained interviews between Plaintiff 1 and Plaintiff 2, who claimed that hydroxychloroquine (HCQ) is a working and proven drug against COVID-19. YouTube removed the videos from their platform arguing that they breached YouTube’s COVID-19 policy. Plaintiff 1 and Plaintiff 2 brought legal action against Google Ireland and Google Netherlands (collectively referred to as YouTube) claiming that the video-sharing platform is in breach of contract towards Café Weltschmerz as a user of their service. Furthermore, the plaintiffs held that YouTube violated their right to freedom of expression under Art. 10 of the European Convention on Human Rights. The Amsterdam District Court considered that the content in both videos was disinformation that spread inaccurate medical information about COVID-19 and could potentially be harmful and dangerous since the statements in the videos were expressed in an unnuanced manner. The Court also held that YouTube’s COVID-19 policy is consistent with the Code of Practice on Disinformation established by the European Commission, and therefore the Court maintained that the removal of the videos by YouTube is a valid restriction on the right to freedom of expression of Plaintiff 1 and Plaintiff 2.

United Kingdom
Meechan v. Prosecutor Fiscal, Airdrie
Decision Date: January 22, 2019
The Scottish High Court of the Judiciary refused to create a new appellate structure through which a petitioner could appeal a case up to the Supreme Court of the United Kingdom.  The case involved a petitioner, Mr. Mark Meechan, who sought to appeal a decision in which he was criminally convicted for posting a video on YouTube of a dog that was trained to perform a Nazi salute and to respond to other commands such as “gas the Jews.” As his request did not meet the criteria for leave to appeal, Mr. Meechan argued for the application of the nobile officium to create an appeal route to the High Court, bypassing the established appellate structure. The High Court concluded that there was no lacuna (gap) in the legislative scheme and that the petitioner had an appropriate and effective remedy available through the stated case procedure. The Court clarified that the petitioner’s appeal was unsuccessful because it did not meet the test of agreeability set out by the Sheriff Appeal Court. This decision concluded that the nobile officium can only be invoked in extraordinary or unforeseen circumstances where no other legal remedy is available. In only addressing the procedural aspects of the case, the court upheld a criminal conviction against the defendant for posting content deemed “grossly offensive” based on a factual determination of a lower court without considering arguments raised as to the “comedic” nature of the YouTube video under Articles 7 and 10 ECHR. Furthermore, the Court stipulated that a conduct determined to be “grossly offensive” did not give rise to a question of incompatibility with an individual’s freedom of expression rights under Articles 7 and 10 ECHR based on an established House of Lords precedent.

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.

Proposal for a Directive of the European Parliament and of the Council on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings.
In May 2023 the Council of the European Union issued this compromise text of a Directive of the European Parliament and Council to protect human rights defenders and journalists who engage in public participation from manifestly unfounded or abusive court proceedings, also known as strategic lawsuits against public participation or SLAPPs. The compromise text was issued based on a lengthy consultative process including input from the SLAPP Working Party and Member States. Overall, Member States support “the aim of the directive to eliminate obstacles to the proper functioning of civil proceedings, while providing protection for the right to freedom of expression and media freedom.” However, they also “stressed that the procedural safeguards provided in the directive should be carefully targeted and in line with the right to an effective remedy and to a fair trial, in order to eliminate the risk of abuses by those the directive aims to protect.” At the same time, the Directive should not prevent legitimate claims from benig heard. The compromise text must be approved by the relevant parties before it can form the “basis for the negotiations with the European Parliament in the framework of the ordinary legislative procedure (Art. 294 TFEU).”

Post Scriptum

● Free Speech in an Age of Democratic Backsliding, by Thomas M. Keck. In this review essay, Keck draws on two recent books: “Cheap Speech: How Disinformation Poisons Our Politics—and How to Cure It” by Richard L. Hasen and “Free Speech: A History from Socrates to Social Media” by Jacob Mchangama. “Mchangama and Hasen counsel different choices,” Keck writes, “but taken together, their books illuminate the stakes in key ways.” Weaving the arguments of the two authors, the essay reflects on the tradeoffs that civil liberties advocates faced within the context of democratic backsliding.

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