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.

● European Court of Human Rights: Unwarranted search of Polish journalists violates rights. ARTICLE 19 and Privacy International submitted an amicus brief to the European Court of Human Rights in Nabrdalik and Moskwa v. Poland – a case concerning forceful search and seizure of journalists’ devices. In November 2021, photojournalists Maciej Moskwa and Maciej Nabrdalik were covering events at the Polish-Belarusian border, when Polish military officers forcibly searched their phones and cameras. In their intervention, ARTICLE 19 and Privacy International refer to the Polish officers’ search as “mobile phone extraction,” or “MPE,” cite Articles 8 and 10 of the European Convention on Human Rights, and argue, “MPE is […] a highly invasive technique that raises serious potential for interference with the right to privacy and freedom of expression, and therefore requires a particularly compelling justification to be lawful, necessary and proportionate.” Read the full intervention here.

● How SLAPPs increasingly threaten democracy in Europe – new CASE report. The Coalition Against SLAPPs in Europe (CASE) published its 2023 report – an updated analysis of identified SLAPP cases in 35 countries. The number of cases cataloged in the CASE’s database grew from 570 in 2022 to over 820 in 2023. The countries leading in the number of SLAPPs registered by CASE are Poland, Malta, France, and Croatia. Malta, however, is far ahead of others when it comes to SLAPP cases filed per capita: “Malta’s number has increased significantly since the last report with 19.93 cases per 100,000 people when compared with 8 cases per capita in 2021.” The report shows journalists and media outlets remain the likeliest of targets, while business persons and politicians are the likeliest of SLAPPers. Download the full report here.

● Who’s Afraid of the DSA?by Gabby Miller. In light of the Digital Services Act (DSA) going into effect for the largest online platforms, this Tech Policy Press article breaks down what awaits the biggest players in the industry and others at a later stage. Among those that the law applies to now – the Very Large Online Platforms (VLOPs) and Search Engines (VLOSEs) – are Facebook, LinkedIn, YouTube, Instagram, Twitter, Amazon, Zalando, Alibaba’s AliExpress, Google, and Bing. Some companies objected to the designation: Zalando and Amazon turned to the European General Court. The companies have four months to ensure full compliance, or “risk fines of up to six percent of a company’s global turnover.” In cases of repeated violations, companies can face a ban on operating in the EU. In six months, the DSA is going into force for all digital services. Miller writes, “It will likely be years before we can judge whether the law works and what areas need improvement.”

Decisions this Week

Villa v. Government of Seville
Decision Date: May 24, 2023
The Constitutional Court of Spain ruled that Resolution No. 217-2020 issued by the Government of Seville, which banned a demonstration organized by Fernández Villa on 30 April 2020 to protest the public authorities’ handling of the Covid-19 pandemic, did not violate Article 21 of the Spanish Constitution, which enshrines the right to assembly. Mr Fernández Villa notified his intention to organize a peaceful protest on 30 April 2020 to criticize the public policy adopted by the Government of Seville in relation to the Covid-19 pandemic—in particular the adoption of compulsory confinement. The Government of Seville banned the protest by issuing Resolution No. 217-2020, because the protest did not guarantee the security and hygiene measures necessary to prevent the spread of Covid-19 in the context of the health crisis caused by the outbreak of the virus. The Spanish Constitutional Court ruled that Resolution No. 217-2020 complied with the constitutional requirement of sound justification, as the government had justified the temporary ban on the protest until the necessary protective measures were in place to prevent the spread of the virus and to protect the population’s right to health. The Court also found that Resolution No. 217-2020 did not violate the right to assembly under Article 21 of the Spanish Constitution because it pursued a legitimate aim, was necessary and proportionate in the context of the public health emergency of April 2020, in which there was evidence of a serious increase in Covid-19 cases and the government was trying to prevent a worsening of the health crisis and the collapse of the healthcare system.

Pavlou v. Xu
Decision Date: March 13, 2023
The District Court of Queensland, Australia dismissed an application for condonation for a late appeal to the finding that consular immunity protected a diplomat from statements he had made. After participating in a pro-Hong Kong rally at his university, a student was targeted by pro-China counter-protesters. Subsequently, the Chinese Consul General in Brisbane issued a statement supporting the counter protesters, which lead to the student receiving online abuse and death threats. A magistrates court dismissed the student’s complaint that the Consul General’s statement constituted threat, finding that the Consul General enjoyed diplomatic immunity from civil and criminal liability. Although the Court found that it was futile to continue two years later, it noted that the student’s argument that consular immunity is not absolute and should be examined when a diplomat’s actions could infringe civil and political rights.

The case of the controversial Twitter post about Andrzej Duda, President of the Republic of Poland
Decision Date: January 10, 2022
The District Court in Warsaw, VIII Criminal Division in Poland discontinued the criminal proceedings against a writer charged with insulting the President. In a Facebook post, the writer described the President as “a retard” (debil), and the prosecutor sought the initiation of criminal charges. The Court accepted that the writer had used an offensive word but stressed that the limit of acceptable criticism of politicians is wider than of non-public officials. It held that there is a right to criticise the actions of public authorities and found that the condition for the criminal charge – that there has been social harm – was not met.

User v. Zweites Deutsches Fernsehen (ZDF)
Decision Date: April 13, 2018
The Administrative Court of Mainz, Germany, found that blocking a Facebook user from the social media page of a public broadcaster was lawful because he posted defamatory comments about other users’ political and sexual orientations. The claimant sued the German public service broadcaster ZDF (Zweites Deutsches Fernsehen, Second German Television) after it had blocked his profile on its Facebook pages for making discriminatory comments towards other users. The Court held that ZDF—as part of the indirect state administration—must respect fundamental rights, but that the general right of personality of other users prevails over the claimant’s right to access the Facebook pages and freedom of expression. Thus, the Court held, ZDF could lawfully block his profile based on its “virtual domiciliary rights”.

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.

Social Media 4 Peace: Content moderation and freedom of expression handbook
The handbook, produced by ARTICLE 19 under the UNESCO project Social Media 4 Peace funded by the European Union, includes numerous concrete examples and cases to illustrate the questions raised by different standards, practices and policies pertinent to content moderation. It builds upon ARTICLE 19’s policies and expertise in content moderation and platform regulation and reflects ARTICLE 19’s long-standing calls that measures responding to problematic content including ‘disinformation’ and ‘hate speech’ must always conform with international standards on freedom of expression and other human rights.

Post Scriptum

● Defamation in the Age of Artificial Intelligence, by Leslie Y. Garfield Tenzer. Is it possible to bring a successful defamation case against an AI-generated chatbot? The article argues it is, but acknowledges the challenges. Tenzer refers to “the first, and to date, only case against an AI-generated chatbot,” reviews AI and defamation case elements, and analyzes defamation laws and what changes technological advances have brought into law practice. Proposing ways to address the AI challenges in defamation cases, the article aims “to contribute to the ongoing discourse surrounding the need for a legal framework and responsible AI deployment to mitigate the potential societal harm caused by defamation in the digital age.”

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