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.

  • NOMINATIONS ARE NOW OPEN! 2024 Columbia Global Freedom of Expression Prizes. Nomination Deadline: December 1, 2023. Established in 2015 and awarded every two years, the Prizes celebrate efforts around the world that strengthen freedom of expression by promoting international standards in two categories: Excellence in Legal Services and Significant Legal Decision. Anyone can nominate court decisions or legal services that have had a recognizable impact on freedom of expression. Self-nominations are also welcomed. Nominations are judged by an independent panel of experts in law, advocacy, journalism, and human rights with nominations for decisions handed down between 2022-2023 given priority. At a time when freedom of expression is threatened globally, there is a particular need to celebrate victories in defense of this fundamental right. We invite you to nominate your colleagues or even yourself! Learn more about the nomination process here.
  • Upcoming Event – platform launch. In co-operation with UNESCO, the University of Liverpool and the Worlds of Journalism Study are launching a new one-stop portal on journalists’ safety – Dr Vera Slavtcheva-Petkova and Professor Thomas Hanitzsch will present the platform, “a one-stop open-access online resource on journalists’ safety for the benefit of the key stakeholders in the process of implementation of the UN Action Plan on the Safety of Journalists and the Issue of Impunity.” Aiming to facilitate collaborations among scholars, NGOs, journalists, students, and international organizations, the portal offers a wide range of resources: academic research, interviews with experts, toolkits for journalists, reports, and many others. October 4, 2023 at 11 am CET. Make sure you register to attend the event.
  • Upcoming Event – The Future of Speech Online 2023: Generative AI. The Center for Democracy & Technology and Stand Together Trust are hosting the seventh annual virtual conference on the Future of Speech Online. Legal, technology, and media experts, scholars, policymakers, and rights advocates will explore what the generative AI boom carries for online speech and how to make sure we benefit from AI in an environment respectful of human rights. The event will “ground attendees in the technical know-how necessary for navigating policy conversations around generative AI”; the panels and presentations will discuss “technical, policy, and legal safeguards” and online speech regulation approaches. October 4-5, 2023, at 12-2:30 pm ET / 9-11:30 am PT / 6:00-8:30 pm CET on each day. Register here.
  • South Korea court overturns North Korea leaflet ban. JURIST reports the Constitutional Court of South Korea ruled to revoke the North Korea Leaflet Ban Act – a provision of the Law on the Development of Inter-Korean Relations – on September 26, 2023. Enacted in December 2020, the law prohibits the sending of propaganda leaflets to North Korea as actions “causing harm or serious danger to the lives or bodies of people.” The Act imposed penalties of up to three years in prison or a fine of up to 30 and was criticized by human rights activists; North Korean defectors submitted a constitutional petition: they argued the law violated fundamental rights, including freedom of expression. The Court’s seven judges determined the Act excessively restricts freedom of speech “because it broadly targets the content of the restricted expressions and even employs the force of state punishment, which should be the last resort.”

Decisions this Week

South Africa
Maughan v. Zuma
Decision Date: June 7, 2023
A High Court in South Africa dismissed a private prosecution brought by the former president, Jacob Zuma, against a journalist as an abuse of process. The journalist had published an article that included information about the president’s medical condition which had been obtained from the public court documents. When Zuma issued summons against the journalist on grounds that she had disclosed confidential information unlawfully, the journalist applied to have the summons set aside. The Court held that the concept of an abuse of process as a SLAPP suit can apply in criminal proceedings, and found that the private prosecution had no merit and had been brought solely for the purpose to intimidate and harass the journalist.

European Court of Human Rights
Bavčar v. Slovenia
Decision Date: September 7, 2023
The Chamber of the First Section of the European Court of Human Rights ruled that statements made by senior government officials had prematurely and unfairly influenced public perception of a former politician and businessman’s guilt before a final verdict was reached in his criminal case. The case arose from statements made by the Minister of Justice and the Prime Minister, as well as subsequent comments by other officials, deemed potentially prejudicial to the applicant’s presumption of innocence during the period when the applicant was awaiting the delivery of a judgment in his retrial. While Article 10 was not invoked, the Court acknowledged the importance of freedom of expression and recognized that public officials have a duty to inform the public about ongoing criminal investigations, especially in cases involving serious allegations. However, it emphasized that this freedom must be exercised with discretion and circumspection to respect the presumption of innocence and hence, high-ranking State officials must be careful in their choice of words. In light of the circumstances of the case, the Court found a violation of Article 6 (2) (presumption of innocence) of the European Convention on Human Rights.

Société Editrice de Médiapart and Others v. France
Decision Date: January 14, 2021
The European Court of Human Rights (ECtHR) held that an order for the removal of extracts from recordings taken at a private residence does not violate the right to freedom of expression. After a French news website published text and audio extracts of the recordings, the family of the woman whose communications had been recorded brought applications seeking the removal of the extracts from the relevant articles. Given that the woman was a prominent businesswoman, the lower French courts found that the public interest of the recordings justified the invasion of privacy. The appeal courts reversed that decision, holding that the recordings had been made illegally and the publication was an invasion of the right to privacy. The ECtHR emphasized that the journalists involved knew that the recordings were illegally obtained and that a public person does not automatically give up all expectations of privacy – especially when they do not hold public office.

United States
State of Minnesota v. Casillas
Decision Date: December 30, 2020
The Supreme Court of Minnesota ruled that the “revenge porn” statute (Minnesota Statutes § 617.261 (2018)), which was earlier struck down by the Minnesota Appeals Court, survived the strict scrutiny standard and hence was a constitutional restriction on speech. The case concerned Michael Casillas, the respondent, who was initially sentenced with 23 months in prison by the district court for the non-consensual dissemination of his former girlfriend’s private sexual photos and videos online and to 44 recipients. The sentence by the district court was overturned by the Minnesota Appeals Court on grounds of overbreadth and violation of the First Amendment. The Appeals Court, inter alia, observed that the statute had the potential to reach a substantial amount of protected speech, which could have a chilling effect. It further declared the statute invalid and thus reversed Casillas’ conviction for “nonconsensual dissemination of private sexual images.” On further appeal, the Supreme Court of Minnesota held that the impugned statute is “a representation of this constitutional compromise and adequately balances the fundamental right to free speech with the citizens’ right to health and safety.”

People v. Austin
Decision Date: October 18, 2019
On October 18, 2019, the Supreme Court of the State of Illinois upheld a “revenge porn” statute i.e. Section 11-23.5(b) of the Criminal Code of 2012, and decided that prohibiting the nonconsensual dissemination does not restrict freedom of speech and expression. The defendant Bethany Austin discovered an exchange between her to-be husband Matthew and her neighbor Ms. Dreher. The exchange revealed an affair between them. Later, in response, Austin sent a letter to Matthew’s family and close friends in which she disclosed the affair and attached copies of text messages and four nude photographs of Ms. Dreher.  Ms. Austin was charged under Section 11-23.5(b). The Circuit Court, however, dismissed the charge on the grounds that the provision violated her right to free speech. In an Appeal filed by the State, the Supreme Court of Illinois reversed and remanded for further proceedings. The Court found that the statute serves a substantial government interest unrelated to freedom of speech suppression. It is only for the protection of privacy rights and the Court concluded that the statute did not burden more speech than necessary, since it restricted its application to detailed and specific circumstances.

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.

Towards Meaningful Fundamental Rights Impact Assessments under the DSA
“This policy paper, prepared by the European Center for Not-for-Profit Law (ECNL) and Access Now, specifically focuses on implementing Article 34(1)b of the DSA, which addresses the ‘actual or foreseeable negative effects for the exercise of fundamental rights.’ For the purpose of this paper, we use the term “fundamental rights impact assessment” (FRIA) to describe a process for implementing this Article. While Article 34 of the DSA adopts a risk-based approach, this broader framework should be grounded in fundamental rights safeguards, binding standards codified in the EU Charter of Fundamental Rights.”

Post Scriptum

● Human Rights Online: Towards a New Generation of Human Rights in the Virtual World, by Julia M. Puaschunder. Noting that attention to human rights in the context of digitalization is a paradoxically recent phenomenon, the article addresses the AI age challenges through three focuses: 1) privacy protection, 2) freedom of expression alongside hate speech prevention, and 3) striving for “credibility and accuracy of online content.” Puaschunder calls for regulation to prevent big tech from “reaping online entities for surveillance and generating insights.” When it comes to freedom of speech, Puaschunder argues liberty should balance with protection. The article asks if social media users could be considered “quasi-workers” and mentions the possibility of their unionization. Finally, Puaschunder warns against the dangers of disinformation that, if left unmitigated, could lead to social, legal, democratic, or financial instability.

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