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.

● Upcoming Event: Hate-Speech – The Enduring Question of Thresholds. Natalie Alkiviadou, Senior Research Fellow at Justitia, will present her Special Collection paper at the Center for Studies on Freedom of Expression and Access to Information (CELE) of the University of Palermo, Argentina. Relying on the databases of Columbia Global Freedom of Expression and the Future of Free Speech Project, this online seminar will cover regional and international trends, practices, and jurisprudence on hate speech. The aim of the research is to serve as a guide for human rights defenders, scholars, lawyers, civil society, members of the judiciary, and policymakers. September 28, 2023, 6 pm ART (5 pm EDT). Learn more and register here. 

● Upcoming Event: Report Launch – Freedom on the Net 2023. Freedom House is hosting an online event to mark the release of “Freedom on the Net 2023: The Repressive Power of Artificial Intelligence.” The report responds to AI innovations that are impacting the internet and “increasing the scale, speed, and efficiency of digital repression.” The event will start with the presentation of key findings and continue with a discussion: experts will speak about global and country-specific trends and strategies to ensure internet freedom. October 4, 2023, from 10:30 am until 11:45 am EDT. Register here to attend via Zoom. (The report will be available online on October 4 at 12:01 am ET.)

● Egypt: Sentencing of Hesham Kassem confirms National Dialogue is a farce, warn rights groups. IFEX member Cairo Institute for Human Rights Studies (CIHRS) and several other human rights organizations issued a statement condemning Egyptian authorities for prosecuting prominent dissident Hesham Kassem. On September 16, 2023, Kassem, co-founder of the liberal political parties coalition Free Current and a potential candidate in the upcoming presidential elections, was sentenced to six months in prison and a fine of EGP 20,000 based on slander and defamation charges. The human rights groups argue the new wave of detentions and sentences targeting dissident voices ahead of the presidential elections shows that “recent attempts by the Egyptian authorities to whitewash their human rights records, through initiatives like the National Dialogue, are a farce.” 

Decisions this Week

South Africa
Sithole v. News24
Decision Date: August 8, 2023
A High Court in South Africa refused to enroll an urgent application for an interdict against a media house on the grounds that the application constituted a SLAPP suit. Two prominent businessmen sought an urgent interdict to prevent one specific media house from using a nickname for them which had been in the public domain for 16 years and had been used by multiple newspapers. The Court found there was no urgency in the application and noted that the businessmen had not brought any actions for defamation in the 16 years and that any interdict would be ineffective because many media houses other than the party in this case used the nickname. The Court described the application as an abuse of process and an attempt to punish the media house and its journalists and to send a “chilling example” to other journalists.

European Court of Human Rights
Udovychenko v. Ukraine
Decision Date: March 23, 2023
The Fifth Section of the European Court of Human Rights (ECtHR) unanimously found a violation of Article 10 in a case involving a woman who provided an eyewitness account of a road accident to journalists. The woman’s statement, given in response to a journalist’s request, implicated individuals in the accident. Subsequently, she faced civil claims alleging that her statement damaged the claimants’ reputation. Despite the domestic courts’ rulings against her, the ECtHR held that the penalties imposed on her were disproportionate. The ECtHR emphasized that her statement related to a matter of public interest, and she had acted in good faith, making her comment a statement of fact on a public concern rather than an attack on reputations. This case underscores the importance of balancing freedom of expression with the protection of reputation and the context in which statements are made. The ECtHR awarded the applicant compensation for pecuniary and non-pecuniary damage.

France
The Case of the Tintin Sculptures
Decision Date: November 29, 2022
The Court of Appeal for Aix-en-Provence, France ruled that sculptures inspired by the Tintin comics constituted copyright infringement. Tintin is the main character of “The Adventures of Tintin” comics created by Hergé and the owner of the intellectual property rights to Hergé’s derivative works took legal action to halt the marketing of sculptures explicitly based on the comic strip universe. The artist of the sculptures invoked the exception of parody. The Court rejected the exception, holding that the sculptures were not sufficiently distinct from the original Hergé works and that parody must involve an element of humor, which was lacking in this case.

United States
ManorCare of Kingston PA, LLC v. National Labor Relations Board
Decision Date: May 20, 2016
The United States Court of Appeals for the District of Columbia Circuit held that threats of physical violence and property damage—against anyone who objected to voting in favor of unionization—were sufficient to compromise the conditions for a free and fair union election. In 2013, employees of ManorCare, a skilled-nursing facility, voted to elect the Laborers International Union of North America as their collective-bargaining representative. ManorCare learned that threats of violence and property damage had been made against anyone who would not support the union or objected to voting in favor of unionization. After a close election, the National Labor Relations Board certified the union over ManorCare’s objections. ManorCare filed a petition with the Court of Appeals challenging the Board’s order. The Court of Appeals found that the Board misapplied its own test for whether a threat had created a “general atmosphere of fear and reprisal” [p. 1] which would render a free election impossible. The Court held that the threats made were not casual, were disseminated widely, that the individuals were capable of carrying the threats out, and, given the narrow margin of the election result, it was likely that some employees may have acted in fear of the threats when casting their vote. The Court granted ManorCare’s petition and sustained its objections to the election.

United Kingdom
Unison v. Kelly
Decision Date: February 22, 2012
The Employment Appeal Tribunal (the “Appeal Tribunal”) in London, United Kingdom, upheld a lower tribunal’s finding that a trade union had unjustifiably disciplined four of its members (the “Respondents”) for a leaflet campaign intended to counter an alleged chilling of debate by union leaders. Union leaders had refused to allow discussion of certain motions proposed by the Respondents at the union’s National Delegate Conference, prompting the Respondents to criticize the union leaders by means of a leaflet depicting cartoon monkeys covering their ears, eyes, and mouth. The union instituted disciplinary proceedings against the Respondents and ultimately banned them from holding office in the union for between three and five years on the ground that their leaflet campaign was racially offensive. The Respondents complained to the Employment Tribunal, which held that the union breached a labor law prohibiting members of trade unions from being unjustifiably disciplined. The union appealed, arguing that the labor law in question, which imposed restrictions on union discipline, violated Article 11 (freedom of assembly and association) of the European Convention on Human Rights. The Appeal Tribunal dismissed the union’s appeal, holding that the Employment Tribunal did not err in finding that the Respondents were unjustifiably disciplined because they had been banned from office as a result of their criticism of union officials, rather than on any racial offense caused by the cartoon. In doing so, the Appeal Tribunal further held that the labor law in question did not violate the union’s Article 11 rights and, even if it did, the Employment Tribunal was entitled to find that such a violation would be justified.

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.

When bodies become data: Biometric technologies and freedom of expression
This Policy Brief published by ARTICLE 19 provides a detailed overview of the potential harms of Biometric technologies, including violations of the fundamental rights of privacy and freedom of expression as well as “data protection, human dignity, non-discrimination, self-determination and the right to access an effective remedy.” Further, abuse of these technologies by law enforcement and other public authorities can result in discrimination from profiling of marginalized and at-risk communities. The Policy Brief provides case studies on the use of facial recognition and emotion recognition technologies, and offers a broad range of recommendations. Based on the gathered evidence, ARTICLE 19 calls for “a moratorium on the development and deployment of all biometric technologies until vital human rights safeguards are in place.”

Post Scriptum

● ELI Report on Freedom of Expression as a Common Constitutional Tradition in Europe, by Sabino Cassese, Mario Comba, and Riccardo de Caria. This report of the European Law Institute (ELI) surveys freedom of expression law in the EU, drawing from expert analyses of Member States’ jurisdiction. The authors intend for the report to serve as a practical tool that helps practitioners navigate the similarities and differences of various legal approaches. Even though the report found a strong reliance on the ECHR across legal systems, the authors note that “there are cases of even higher standards of protection, reflecting a specific constitutional history and identity (so the ECHR would appear to be intended as establishing a minimum level (a ‘floor’), not a maximum one (a ‘ceiling’) in the protection of freedom of expression).”

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