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.

Community Highlights & Recent News

● DON’T MISS OUT – Upcoming Online Seminars on Freedom of Expression in Latin America. Columbia Global Freedom of Expression and the Foundation for Press Freedom (FLIP) are inviting journalists, scholars, judicial actors, and anyone interested in understanding and promoting freedom of expression in Latin America to attend the upcoming webinars:

  • October 23, 2023 – Surveillance and journalism: new challenges for the press in a society in which we are never alone. The webinar seeks to understand, from a jurisprudential perspective, the way in which surveillance, exercised by different actors, negatively affects the exercise of freedom of expression, specifically freedom of the press. Panelists will discuss the mutually reinforcing relationship between privacy and the right to freedom of expression, the challenges faced by this human right, and the protection that has been provided to it in national and regional courts. The webinar will be in Spanish and open to the public. October 23, 2023. 3:30-5:00pm COT (Bogotá) / 4:30-6:00pm ET (New York) / 5:30-7:00 pm ART (Buenos Aires). Register here.
  • October 25, 2023 – SLAPPs: new tools for dealing with judicial harassment. Strategic lawsuits against public participation (SLAPPs) have become one of the favorite tools of actors who want to limit public debate and criticism. This strategy, under the guise of legality, seeks to misuse legal institutions to intimidate and overpower those who exercise their freedom of expression. Jurisdictions around the world have conceptualized the problem and proposed various responses to address it. This webinar will seek to understand how the problem has been approached from a legislative and jurisprudential perspective and will analyze the different solutions based on their effectiveness and reasonableness. October 25, 2023. 1-2:30pm COT (Bogotá) / 2-3:30pm ET (New York) / 3-4:30pm ART (Buenos Aires). Register here.

● Before Critical Year for Democracy, 38 States Condemn Internet Shutdowns Amid Elections. Access Now reports the Freedom Online Coalition (FOC), composed of 38 states, has issued a joint statement condemning election-related internet shutdowns. Within the annual United Nations Internet Governance Forum, the FOC members have urged governments around the world to stop disrupting internet services during elections, noting that “by obstructing the free flow of information, opinions, and expression, which are necessary to build public trust and facilitate free and fair elections, Internet shutdowns threaten the legitimacy of the electoral process.” Contributing to the discussion, CGFoE recently published its Special Collection Paper on Internet Shutdowns in International Law: part one documents the international standards that have emerged pertaining to internet shutdowns, and part two explores the relevant case law at the national and international levels. Read the publication here. 

● Centering Community Voices: How Tech Companies Can Better Engage with Civil Society Organizations, by Nadah Feteih and Elodie Vialle. The article, published by Tech Policy Press, brings Big Tech’s failure to collaborate with marginalized and at-risk communities to the fore: as growth and profit continue having priority over human rights, social media platforms’ current design does not deliver effective remedies in tackling online abuse. “We can’t conflate short-term band-aid solutions with comprehensive solutions to rebuild systems to center accuracy and fairness,” the authors write. Feteih and Vialle argue tech companies should implement community-driven designs, taking into account the voices that have long been neglected, “It is important for at-risk individuals and civil society groups most familiar with harms perpetuated by the platforms to be involved in consultations during these assessments so that potential negative effects can be mitigated from the outset.”

● Call for Papers: New Voices in Press Freedom.The Knight First Amendment Institute at Columbia University has launched a new project titled “The Future of Press Freedom: Democracy, Law, and the News in Changing Times.” Setting to explore “what the Constitution, law, and policy can do about identifying and protecting core press functions,” the project invites submissions from junior scholars to be featured at a symposium at Columbia University on May 2-3, 2024. The Institute welcomes papers on the following themes but does not limit submissions to them: “The benefits and disadvantages of doctrinal press-function exceptionalism,” “Identifying performers of the press function,” “The role of a free and protected press in a healthy democracy,” and “Press-function protection and the Supreme Court’s evolving First Amendment frameworks.” Submit your 250-word abstract and CV to research@knightcolumbia.org by November 20, 2023. Learn more here.

Decisions this Week

India
Habeeb Mohamed v. Tamil Nadu
Decision Date: July 19, 2023
The Madras High Court held that the right to seek votes is a fundamental right. In the present case, the petitioner, Habeeb Mohamed, prevented one of the respondents, Muruganantham (“respondent”), from entering and canvassing in the Thanjavur constituency, alleging him to be “notorious character” against whom several criminal cases are pending. This led to physical violence. In response to these grievous events, the petitioner filed an application to the court requesting compensation. The court dismissed the petition since the order of compensation required consideration of factual matter, which was outside the purview of the petition. However, the court observed that “candidates/party cadre are entitled to engage in door-to-door campaigning. They can go to any locality or area for the purpose of peacefully canvassing for votes. No individual has the right to prevent or restrict the exercise of the said right. The right to campaign is traceable directly to Article 19(1)(a), (b) and (d) of the Constitution of India.”

Aaradhya Bachchan v. Bollywood Times
Decision Date: April 20, 2023
the Delhi High Court (“the Court”) directed Google LLC to curb the dissemination of certain YouTube videos relating to the minor plaintiff, Aaradhya Bachchan (the daughter of well-known Indian celebrities) which showcased the plaintiff in a misleading light, including as critically ill and dead, and used morphing technologies to lend colour to these claims. The interim order also directed a prohibition on the dissemination of any other similar videos, which are not a party to the present suit, or any relevant future media. In the order, the court considered the plaintiff’s right to privacy and the child’s interest and observed that the “dissemination of misleading information relating to a child, especially as regards her physical or mental wellbeing, is something which is completely intolerable in law” [p. 2]. The case is listed for further judgment.

European Court of Human Rights
Hurbain v. Belgium
Decision Date: July 4, 2023
The Grand Chamber of the European Court of Human Rights (ECtHR), in a majority judgment, held that an order to anonymise an article in a newspaper’s electronic archive (which referred to a person’s involvement in a fatal road traffic accident for which they were subsequently convicted) did not breach the applicant publisher’s right to freedom of expression under Article 10 of the European Convention on Human Rights. The applicant, Patrick Hurbain’s newspaper Le Soir published an article reporting on a series of fatal car accidents which had occurred in a short period of time. It mentioned the full name of one of the drivers involved, “G” who successfully sued the applicant and received an order in their favour. The ECtHR upheld the decision of the domestic courts and emphasized that a person who is not a public figure may acquire notoriety in the context of a criminal process/trial but that may decline with the passage of time, with the effect that they may be able to rely on the right to be forgotten in order to go back to being someone who is unknown to the public. In reaching such conclusion, the court tailored a seven-criteria test which is to be applied in right to be forgotten case.

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.

A Trusted Framework for Cross-Border Data Flows
This paper by Alex Joel aims to identify practical measures to ensure beneficial cross-border data flows continue while addressing the risks they pose. It emphasizes the importance of commercial privacy and trusted government access in achieving trust. A trusted framework for cross-border data flows must be open to democracies operating under the rule of law, rights-protective, practicable, and scalable. The framework should provide meaningful privacy safeguards enforced through effective accountability mechanisms, be achievable by democracies that respect the rule of law, and be scalable to keep up with rapid global change. The paper suggests stakeholders should initiate a multilateral, transparent process that focuses on commercial privacy and trusted government access.

Post Scriptum

● Understanding Journalism Impact: A Multi-Dimensional Taxonomy for Professional, Organizational and Societal change, by Anya Schiffrin, André Corrêa d’Almeida, Lindsay Green-Barber, Adelina Yankova, and Dylan W. Groves. The article asks, “How should we measure the impact of investigative journalism?” The question implies casualties between media reports and the outcomes they reap socially, politically, and economically. The authors, however, argue there are methodological obstacles in measuring the impact that investigative journalism brings about. The article starts by reviewing existing literature on media impact and then proceeds to “explain [the] methodology and introduce a multi-dimensional matrix for understanding media effects across three domains (individual, professional and societal).”

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