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.

This week, the legal decisions we bring to your attention concern freedom of expression in relation to privacy – a relation that is, as the cases show, many-sided. How do courts balance the right to privacy with freedom of expression? How do they fail to do so? In Abdul Rahman Asaad Aref Thaher v. State Attorney, a decision from Palestine, the Court protects freedom of expression in private conversations but fails to consider political expression on a matter of public interest. The two other decisions – the ECtHR rulings regarding the UK and Austria – examine surveillance and defamation.

Meanwhile, a troubling legislation trend is emerging in Europe. ARTICLE 19 and over a dozen other organizations issued a joint statement addressing the Slovak Parliament with an urgent call: Reject proposed changes to the Whistleblower Protection Act – they impair whistleblower protections significantly. Slovakia is not alone. The Croatian government is on the verge of criminalizing unauthorized leaks of criminal proceedings’ documents, and Italy’s law amendment seeks to ban the publication of pretrial detention orders. These legislative changes are chilling. They are backward steps for the countries’ press freedom and people’s right to be informed.

There are, however, remedies and roadmaps for states to comply with international law. In case you missed it, Freedom of Speech in International Law, published by Oxford University Press, was launched on January 18, 2024, at an event at King’s College London, United Kingdom. Edited by Amal Clooney and Lord Neuberger, the book outlines the minimum protections for speech anointed in international law and provides extensive examples of unfair laws or unfair application of laws. “This is not a light text or an easy conversation,” Amal Clooney noted in her speech at the panel. And yet, she shared, “We wrote the book not out of despair – although we could have – but out of hope.”

Decisions this Week

Brazil
Ricardo Zarattini Filho v. Diario de Pernambuco
Decision Date: November 9, 2023
The Supreme Federal Court of Brazil ruled that media companies can be held civilly liable when publishing an interview in which an interviewee falsely accuses a third party of committing a crime. A Brazilian newspaper had published an interview accusing a politician of terrorist activity in the past and the politician sought damages in the lower court, arguing that he had been cleared of all charges related to the terrorist act mentioned in the newspaper article. The first instance court found that the politician’s public image was damaged and ordered the newspaper to pay damages. The appellate court emphasized the right to information and overturned the lower court’s decision. On appeal, the Superior Court reinstated the first instance court’s order. The Supreme Federal Court imposed limitations on the freedom of the press and freedom of expression, affirming that the politician, who had been cleared of all charges related to the alleged terrorist act, was entitled to protection of the right to be forgotten when a newspaper published an interview linking him to such activities. It stated that civil liability will depend on whether, at the time of publication, there were concrete indications of the falsehood of the accusation, and the media outlet failed to observe the duty of care in verifying the truth of the facts and in disclosing the existence of such indications.

European Court of Human Rights
Wieder and Guarnieri v. the United Kingdom
Decision Date: September 12, 2023
The Fourth Section of the European Court of Human Rights held that the right to respect for private and family life of the Applicants were violated by the United Kingdom in connection with its surveillance practices. The case originated from the Applicants’ complaints filed with the Investigatory Powers Tribunal, challenging the bulk interception of communications by UK intelligence agencies. The Court addressed preliminary issues, including exhaustion of domestic remedies, jurisdiction, and victim status. It rejected the Government’s argument that the applicants failed to exhaust domestic remedies and asserted that the interference with the applicants’ rights fell within the UK’s territorial jurisdiction. The Court found the Applicants had victim status and ruled a violation of Article 8 of the European Convention on Human Rights due to flaws in the Section 8(4) regime of the Regulation of Investigatory Powers Act. However, the Court deemed complaints under Article 10 inadmissible.

Zöchling v. Austria
Decision Date: September 5, 2023
The Fourth Section of the European Court of Human Rights held that Austria violated Article 8 by not properly balancing the right to privacy with the freedom of expression. The case involved a journalist, Zöchling, who encountered defamatory comments on an Internet news portal operated by Medienvielfalt Verlags GmbH. Despite the portal’s relatively small size, the ECtHR found that the Court of Appeal failed to adequately assess the context, size, commercial interest, and content of the offensive comments. The ECtHR criticized the lack of consideration for measures to prevent defamatory content, such as a notice-and-take-down system, and emphasized the importance of anticipating further offenses, especially in cases involving hate speech. Furthermore, the ECtHR highlighted the Court of Appeal’s neglect in evaluating the effectiveness of informing users that unlawful comments were “undesirable.” The denial of access to authors’ data further underscored the need for a proper balancing exercise, which the Court of Appeal failed to conduct. Consequently, the ECtHR ruled a violation of Article 8, emphasizing the State’s positive obligation to safeguard the applicant’s rights to privacy and reputation.

Palestinian Authority
Abdul Rahman Asaad Aref Thaher v. State Attorney
Decision Date: May 10, 2022
The Nablus Court of First Instance (Appellate Court) unanimously delivered a decision in the case where the Applicant faced charges of slander against the Palestinian Authority under Article 45 of the Decree Law on Cybercrimes. The Applicant contended that the Magistrate’s Court committed errors in disregarding legal arguments and invalid arrest and investigation procedures. The Appellate Court, reviewing the evidence, found that the statements made by the Applicant were private messages sent via WhatsApp during a conversation with an individual named Majdouline. Emphasizing the lack of publicity required by the Penal Code, the Court declared the Applicant innocent of the charge, annulling the appealed judgment and acquitting the Applicant due to the non-punishable nature of the act.

Community Highlights & Recent News

●  Call for Proposals – CfP ISHS 2024 “LOLz and the Law: Online Humor in Free Speech Adjudication.” The Forum for Humor and the Law (ForHum) welcomes contributions to the upcoming online conference of the International Society for Humor Studies (ISHS), hosted by Texas A&M University-Commerce on April 19-21, 2024. Inviting prospective contributors, ForHum leads with the following questions: How should courts approach the complexity of internet memes? How to “distinguish between outright disparaging humor and satirical criticism of hate speech”? What falls at “the intersection between online humor and free speech adjudication” will be a good fit for the panel and may touch on the issues of online censorship, hate speech, defamation, and incitement of violence, among many others. Submissions should include an abstract and a bio (no longer than 250 words each) and be emailed to both a.godioli@rug.nl and laura.little@temple.edu. The deadline is January 31, 2024.

● Slovakia: Troubling Changes to Whistleblower Legislation. ARTICLE 19 and over a dozen civil society organizations signed a joint letter calling on the Slovak Parliament to reject proposed changes to the Whistleblower Protection Act. The letter states the changes proposed on December 6, 2023, would “severely limit whistleblower protections and significantly hinder the detection of corruption crimes and the sharing of information in the public interest.” Nonaligned with the EU Whistleblower Directive, the changes would “eliminate whistleblower protection for police officers and cancel minimum free speech rights for everyone else based on the introduction of arbitrary, subjective judgments.” Slovakia could become the only state within the EU where whistleblowers do not receive protection unless the government agrees that uncovering its own corruption is a “necessity.”

●  Croatia: “Anti-leaks” Legislation and New Media Law Proposal Spell Trouble for Journalists.International Press Institute (IPI) reports Croatia is about to criminalize unauthorized disclosure of criminal proceedings’ material – a development that follows the release of a controversial media law draft. The two legislative changes promise a significant setback for the country’s press freedom. The “anti-leaks” legislation introduces a punishment of up to three years in prison; even though Croatia’s Prime Minister stated the law would not target journalists, Hrvoje Zovko, President of the Croatian Journalists’ Association, stresses, “the proposed bill doesn’t include any protective clauses for journalists, and will dissuade potential sources from talking to them.” As for the new media law, Zovko mentions it would oblige journalists to disclose their anonymous sources to both their editor-in-chief and publisher.

● Italy: Media Freedom Advocates Protest “Gag” Law Amendment.Balkan Insight writes that a law amendment in Italy seeks to ban the publication of pretrial detention documents until preliminary investigations conclude. The legislative change drew severe criticism. Proposed by Azione party’s Justice Coordinator Enrico Costa, these new rules were backed “by right-wing parties and centrists from Azione and Italia Viva,” resulting in 160 votes that moved the bill to a probable approval by the Senate. Balkan Insight notes that pretrial detention documents so far remain among the few court orders allowed for publication before investigations end. Vittorio Di Trapani, President of the National Federation of the Italian Press, said, “This law today has no justification other than gagging citizens’ right to be informed: they no longer have the right to know that a judge has ordered precautionary measures against the accused.”

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 Toolkit on Using Counterspeech to Tackle Online Hate Speech
The Future of Free Speech and The Dangerous Speech Project developed an interactive toolkit on the use of counterspeech. The toolkit starts by explaining counterspeech through its various definitions and introducing the phenomenon of “counternarrative” with examples of NGOs’ and activists’ campaigns. The toolkit asks, “To what content does counterspeech respond?” and follows with counterspeech goals, strategies, and practical considerations. The examples of counterspeech analyzed by the authors include #iamhere, an international collective counterspeech network; Mirrors of Racism, a Brazilian campaign; the work Hasnain Kazim, a German journalist; Reconquista Internet, a counterspeech group created in response to hate group Reconquista Germanica; and the story of Megan Phelps-Roper, the author of “Unfollow: A Memoir of Loving and Leaving Extremism.”

Post Scriptum

●  Terrorism, Extremism, Disinformation, and Artificial Intelligence: A Primer for Policy Practitioners, by Milan Gandhi. This policy briefing paper, published by the Institute for Strategic Dialogue (ISD), examines how artificial intelligence (AI) may link to “extremism, mis- and disinformation, and illegal and ‘legal but harmful’ content online.” Milan Gandhi, Research Fellow at ISD, shows ways AI technologies can be harmful and ways they can help identify and resist harms and threats to democracy. The paper has three main sections: 1) conceptual foundations of AI and concerns about accountability, data collection, and transparency; 2) AI systems’ categories, risks, and opportunities; and 3) possible mitigation, ethics, policy, and emerging regulation. Gandhi writes, “Hopefully commentators can agree that arguing about the right focal point for AI rules, when multiple focal points are achievable and, in some cases, mutually reinforcing, may be counterproductive.” Download the report here.

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