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.

● Sustainable development and freedom of expression: why voice matters. Irene Khan, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, has issued a new thematic report assessing sustainable development through the lens of freedom of expression and the right to information. The Special Rapporteur argues that more needs to be done to protect the interests of the disadvantaged, despite advances in standards for access to information. “She argues that only when both access to information and the effective participation of youth, Indigenous communities, the media, human rights defenders, civil society actors and others are fulfilled will the promise to leave no one behind be realized. As world leaders prepare to gather at the United Nations Headquarters in September 2023 to review progress on meeting the Sustainable Development Goals, the Special Rapporteur calls for renewed political commitment to uphold freedom of expression, an enabler of sustainable development.”

● China Dissent Monitor 2023 Issue 4: April – June 2023. Freedom House has released the fourth issue of China Dissent Monitor, a report that documents dissent, along with its frequency and diversity, in the People’s Republic of China. The Monitor’s main focus is offline collective action, yet the report also includes instances of online protest. With more than 2,800 dissent events recorded in the past year, the Monitor has documented 535 dissent actions in April – June 2023, of which labor protests were most frequent. The report highlights cases of the LGBT+ community speaking out during Pride Month, with repression following 5 out of 9 public events, and protest actions by Tibetans and Mongolians, with repression following two-thirds of their public dissent. Read the full report here. 

● Can human moderators ever really rein in harmful online content? New research says yes,by Marian-Andrei Rizoiu and Philipp Schneider. Inforrm’s Blog features the article, originally published by The Conversation, that argues “trusted flaggers” can reduce the proliferation of harmful content on social media. Rizoiu and Schneider’s research supports the statement. Using a mathematical model of information spread, the researchers assessed how effective the EU’s Digital Services Act human moderation mandate can be, if enforced. Rizoiu and Schneider found that “moderation by the rules of the Digital Services Act can effectively reduce harm, even on platforms with short content half-lives” and “moderating even after 24 hours could still reduce the number of harmful offspring by up to 50%.”

Decisions this Week

European Court of Human Rights
C8 (Canal 8) v. France
Decision Date: February 9, 2023
The European Court of Human Rights (ECtHR) unanimously held that the sanctions imposed on a broadcasting company for airing inappropriate and discriminatory content did not violate the right to freedom of speech guaranteed in Article 10 of the European Convention on Human Rights (ECHR). The Conseil supérieur de l’audiovisuel (CSA), the French broadcasting authority, imposed monetary fines and advertisement-related sanctions against C8, the applicant company, for violations of French broadcasting law arising from two segments of the show Touche pas à mon poste. The ECtHR rejected the application of C8, based on Article 10 of the ECHR, and affirmed the decisions issued by the Conseil d’État. The ECtHR ruled that although the sanctions interfered with the applicant company’s freedom of expression, such interferences were justified because they were prescribed by law and necessary in a democratic society to pursue a legitimate aim, namely the protection of the reputation or rights of others. Here, the first segment at issue trivialized degrading images of women, and the second one stigmatized homosexual men and infringed on the right to privacy of the deceived individuals. Moreover, the segments did not convey any information, opinion, or idea contributing to debates on questions of public interest, and were aired by C8 purely for entertainment purposes in a commercial context. The ECtHR further concluded that the sanctions ordered by the CSA were proportional to the aim pursued by the state, having regard to the segments’ discriminatory content, negative impact on young audiences, and profit motive as well as the applicant company’s size and history of similar violations.

Italy
CasaPound v. Meta Platforms Ireland Ltd.
Decision Date: December 5, 2022
The Court of Rome, Italy (Tribunale di Roma), held that Meta, the defendant and Facebook’s parent company, had the right and the duty to delete the Facebook page of CasaPound, an Italian far-right political movement, and individual profiles linked to it, because they contained discriminatory content, hate speech and incited hatred. The case was brought by CasaPound after Meta deactivated its Facebook profiles for violating Facebook’s Community Standards on hate speech and incitement to violence. The Court overruled a previous decision from 2019, which granted a preliminary injunction to CasaPound ordering Meta to reactivate its page on the platform. The Court stated that freedom of expression does not cover hate speech or discriminating content and that Meta must moderate its platforms regarding discriminatory content or hate speech, under both international and national law obligations.

CO.GE.DI International s.p.a. v. Zorro Production Inc.
Decision Date: October 11, 2022
The Italian Supreme Court held that intellectual property rights may be subject to limitations and exemptions by a parody of the original, protected work. After a company argued that an advert involving a parody of its eponymous fictional character “Zorro” violated its rights, the lower courts had ruled in the company’s favor holding that a parody had to be substantially different from the original. The Supreme Court overturned the lower court decision on the ground that it had disregarded the EU Directive 2001/29/EC; Art. 70 L. 633/1941 which allows parody and only identifies unfair practice as the limit to it. The Supreme Court stressed that national and European law required a balance between the rights to freedom of expression and intellectual property, and that the mere use of a parody cannot be seen as an infringement of intellectual property. The decision established that parody consists of a mocking or humorous act which makes explicit reference to an original work (including a fictional character), and the parody shall not be in breach of the right-holders interest, e.g., shall not result in the engagement with unfair practices on the market.

United States
Burton v. Crowell Publ’g Co.
Decision Date: February 10, 1936
The U.S. Court of Appeals for the Second Circuit held that an unintentionally offensive photograph of plaintiff Crawford Burton, as well as its publication, were actionable as libel against defendant Crowell Publishing. Burton brought a libel case against the defendant after it published an advertisement he consented to appear in.  The advertisement featured two photographs for which Burton had posed—one of which appeared “grotesque, monstrous, and obscene” because of the placement of Burton’s saddle. Burton’s saddle was placed in such a way as to give the impression of a significant protrusion in his groin area. The Court held that even though the photograph was not deliberately produced to create the impression of a “lewd deformity,” the effect was the same, deliberate or not. Libel, the Court explained, is not confined narrowly to those published materials that affect the reputation of the victim’s character, where character only implies moral qualities. According to the Court, the picture created a caricature that subjected the plaintiff to “ridicule” and “contempt.” Furthermore, the Court held that because the advertisement was calculated to expose the plaintiff to ridicule it was actionable, and the fact that the advertisement did not presume to state a fact or an opinion about the plaintiff was irrelevant. In addition, the Court held that Burton’s consent to the use of the photograph for the advertisement did not preclude action for libel because the photograph was not shown to the plaintiff before publication.

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.

Journalism is a public good: World trends in freedom of expression and media development
The 2021/2022 World Trends in Freedom of Expression and Media Development report focuses on journalism as a public good, analyzing trends in media freedom, pluralism, independence, and journalist safety. The findings are based on data-driven analysis by UNESCO and Data-Pop Alliance, as well as original research by Economist Impact. The report highlights the importance of understanding journalism as a public good and its role in the wider conceptualization of information as a public good.

Post Scriptum

In case you missed it…

U.S. v. Trump: The Big Lie on Trial. The video of The Brennan Center for Justice’s event exploring what the recent Trump indictments in federal and Georgia courts mean for our democracy is now available on YouTube. Moderated by Michael Waldman, President of the Brennan Center, the discussion featured Sean Morales-Doyle, Director of the Brennan Center Voting Rights Program, Gowri Ramachandran, Deputy Director of the Brennan Center Elections & Government Program, and Andrew Weissmann, NYU School of Law Profesor and MSNBC Legal Analyst.

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