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’s legal decisions span Japan, Mexico, and Brazil. All are Supreme Court rulings. We invite you to delve into them. In Star Sands Inc. v. Japan Arts Council, the Court set a precedent, limiting the government’s discretion in its decisions to fund artistic work. In another case from Japan, the Supreme Court ruled to remove Twitter posts about an individual’s arrest that occurred seven years ago.

We have learned of a stellar opportunity and bring it to you: The Centre for Communication Governance at National Law University, Delhi, welcomes applications for the DIGITAL Fellowship 2024. The fellowship responds to the recently passed laws on telecommunications and data protection in India, addressing the challenges that the country’s digital rights litigation faces. One challenge unfolds as we write. Access Now reports the Bombay High Court issued a split verdict on the validity of the 2023 fact-checking amendment to the IT Rules, 2021. If enforced, the amendment would deliver a blow to free speech, granting the Indian government power to label content as “false” or “misleading.”

On a celebratory note, though, we congratulate Kola Alapinni, an international human rights lawyer, on receiving the U.S. Secretary of State’s Award on International Religious Freedom. Alapinni has been providing legal defense in the cases that challenge Nigerian blasphemy laws; one such case is Commissioner of Police v. Yahaya Sharif-Aminu. “Today is the culmination of four years of a dogged and relentless challenge of the draconian laws that gag the freedom of speech and hinder religious tolerance in our dear country,” Alapinni wrote of the Award. “The fight is not over yet.”

Decisions this Week

Japan
Star Sands Inc. v. Japan Arts Council
Decision Date: November 17, 2023
The Japanese Supreme Court held that it was impermissible for a government arts council to deny funding to a movie when an actor had been convicted of illegal cocaine use. The film publication and distribution company had applied for and been preliminarily recommended for funding before the actor was arrested and convicted on the drug charge. The council chose not to confirm the funding on the grounds that awarding funding to the film threatened the public interest in discouraging illegal drug use. The Court of First Instance had found that the council’s decision was impermissible before the High Court overturned that decision, emphasizing the discretion the council retains in making its funding decision. The Supreme Court found that the council can only deny funding based on the public interest where there is a clear threat of harm and the public interest is high.

Plaintiff X v. Twitter. Inc
Decision Date: June 24, 2022
The Japanese Supreme Court ordered Twitter to remove tweets which referred to an individual’s 7-year old arrest. The media had reported on the arrest of an individual for trespass, and anonymous Twitter users had referred to those news articles in their tweets. Seven years later, when the individual had been rejected for a job based on the existence of the online information, the individual approached the courts seeking the deletion of the tweets. The Court of First Instance ordered Twitter to remove the tweets, but on appeal the High Court rejected the request, highlighting the public interest of the information. The Supreme Court emphasized the time that had passed since the news broke and that the individual was not a public figure, and found that, in this case, the individual’s privacy outweighed the public interest in accessing the information.

Mexico
Petitioner v. Federal Institute for Telecommunications and Radio Broadcasting
Decision Date: October 5, 2022
The Supreme Court of Mexico held that the seizure of devices that provide internet services without a license did not violate the right to freedom of expression and access to information. The petitioner claimed that the seizure violated the right to freedom of expression and access to information because the internet allowed people to express their ideas and receive information in a low internet access zone. The Federal Institute for Telecommunications and Radio Broadcasting argued that there was no censorship nor restrictions to the dissemination of information, but rather a punitive measure against an illegal provision of services. The Court held that devices used for the dissemination of information, opinions, and ideas should not be confused with any infrastructure or devices used for the provision of public services, and that, here, the seizure of goods did not seek to penalize a certain point of view, nor prevent a certain group of people from expressing their opinions. The Court noted that licenses for the provision of public telecommunications and broadcasting services are instruments that allow States to guarantee that public services, such as the internet, are provided under conditions of competition, quality, plurality, universal coverage, continuity, free access, and without arbitrary interferences for the benefit of all persons. In the Court’s opinion, the legal framework is clear and neutral, and the sanctions established to ensure its effectiveness pursue a legitimate aim and are reasonable and proportionate.

Brazil
Brazilian Association of Radio and Television Broadcasters (ABERT) v. “Election Law”
Decision Date: June 21, 2018
The Supreme Federal Court of Brazil ruled that a law aiming to restrict freedom of expression and of the press during the electoral period was unconstitutional. The law stated that during the electoral year, radio and television stations were prohibited from employing special effects, editing, or other audio or video resources that in any way degraded or ridiculed political entities, and could not broadcast political propaganda or express opinions about these entities. The Court held that in a democracy, freedom of expression protects not only thoughts and ideas but also opinions and criticisms of public officials, ensuring citizens’ participation in collective life – especially during elections. The Court emphasized that freedom of expression encompasses all types of opinions, including those that are doubtful, exaggerated, condemnable, satirical, humorous, and erroneous.

Community Highlights & Recent News

● Call for Applications: CCG DIGITAL Fellowship 2024. The Centre for Communication Governance (CCG) at National Law University, Delhi invites applications for the DIGITAL (Digital Rights and Inclusive Technology for All) Fellowship. This opportunity responds to the challenges that India’s digital rights litigation currently faces, “including constraints in terms of research capacity and domain expertise.” Placed at host organizations – civil society organizations or litigation chambers – for 10 months, the fellows will be working on litigation research in digital rights and related areas. The CCG will also be guiding the fellows’ legal and policy research work and bring together lawyers, technologists, and civil society representatives, “[b]uilding a national network of digital rights stakeholders.” The fellowship will be full-time, start in March 2024, and offer a monthly stipend of INR 50,000. The application deadline is February 7, 2024, 11:59 PM IST. Learn more about the eligibility requirements and submission guidelines here. 

● India: Access Now Calls for a Rights-Centric Judgment to Strike Down Government Fact-Checking. Access Now reports the Bombay High Court issued a split verdict on the validity of the so-called “fact-checking amendment” to India’s IT Rules, 2021. Urging the Court to quash the amendment, Access Now warns that if enforced, the law “would allow the Indian government to label content about its activities as ‘fake,’ ‘false,’ or ‘misleading,’ and demand its removal — ultimately handing authorities control over what people can say about them online.” This development adds to the growing concerns over freedom of speech in India in light of the 2023 Telecommunications Act, the draft Broadcasting Bill, and other parts of the IT Rules – all posing significant threats to freedom of expression. Like dozens of other nations, India heads to the polls this year, and Access Now calls on the Indian authorities to uphold people’s right to free speech at such a critical time. 

● ECtHR Judgment: Sexual Harassment and a Victim’s Right to Freedom of Expression, by Dirk Voorhoof. The new post of Legal Human Academy discusses a recent ECtHR judgment on the right to freedom of expression of a victim of mental and sexual harassment. In this case, Allée v. France, a criminal conviction for public defamation followed a woman’s allegations that a senior executive at the association where she worked had harassed and sexually assaulted her. Having found a violation of the woman’s right per Article 10 of the European Convention on Human Rights, the Court emphasized the importance of protecting those who allege they have been subjected to harassment. The Court “also found that a criminal prosecution and conviction has a chilling effect, which could discourage people from reporting such serious actions as those amounting, in their view, to mental or sexual harassment, or even sexual assault.” Voorhoof notes the judgment complements the ECtHR ruling in Tölle v. Croatia, in which the Court supported the work of those who defend victims of domestic violence.

● Freedom House Report: Regimes Are Expanding Ways to Intimidate and Silence Opponents. Freedom House released the new report authored by Amy Slipowitz and Mina Loldj and titled “Visible and Invisible Bars: Political imprisonment, civil death, and the consequences of democratic erosion.” The report shows antidemocratic regimes utilize an array of techniques to stifle dissent. Targeting independent journalists, protesters, rights defenders, and opposition activists, autocrats go beyond imprisonment. Another popular antidemocratic tactic is the so-called “civil death,” which may include restrictions on travel, movement monitoring, control over assets, and blacklisting in employment, education, or social benefits, among others. The report examines six countries: Nicaragua, Tanzania, Thailand, Tunisia, Turkey, and Venezuela. “Subservient judiciaries facilitate political imprisonment and civil death at the behest of autocratic regimes,” one of the key findings states. Read the full report here.

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.

East African Court of Justice – Registry / Court Users Guide
The East African Court of Justice (EACJ) offers a guide to the registry and court users – East Africans and everyone interested in the EACJ. Arranged in a Q&A format, the guide provides answers to more than forty questions, such as “Why is the East African Court of Justice needed?”, “Who may appear or be represented before the Court?”, and “What are the Form and Content of the Court’s Judgments, Rulings, Decisions, Decrees and Orders?”. The guide starts by explaining the Treaty that established the East African Community (EAC), the Treaty’s objectives, and principles. The guide then covers the EACJ’s structure, the scope of its jurisdiction, and the court’s access, trial, and appeal procedures. The guide concludes with a glossary of legal terms as per the meanings assigned to them by the EAC Treaty.

Post Scriptum

● Regulating Online Hate Speech through the Prism of Human Rights Law: The Potential of Localised Content Moderation, by Ayako Hatano. The article was published in The Australian Year Book of International Law Online. Turning to international human rights law, Ayako Hatano, a Research Fellow at the Centre of Human Rights Education and Training in Japan, considers the who, what, and how of regulating hate speech online. As for who should be responsible for content moderation, Hatano supports a multistakeholder approach through which social media companies partner with “state actors, civil society, and other relevant stakeholders.” What makes hate speech? The article suggests social media companies localize their terms and guidelines following human rights standards. Exploring the question of how companies can identify and moderate hate speech, Hatano refers to the Rabat Plan of Action and calls on companies to take local contexts into account “with qualified human moderators with local knowledge and oversight boards with local expertise.”

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