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.

We have great news to share with you. This week, CGFoE launched the French Language Case Law Database. The database now hosts more than 100 briefs of landmark freedom of expression cases, and we will be adding new cases monthly. Six Special Collection Papers in French add to the database resources. They cover internet shutdowns, hate speech, the right to be forgotten, the African System of Human and Peoples’ Rights, the Inter-American System of Human Rights, and the Grand Chamber of the ECtHR.

To celebrate the launch, join our ongoing webinar series in French with simultaneous interpretation in English. At each webinar, one Special Collection Paper author will speak about their findings; legal scholars and other experts will join the discussions. The next webinar will take place on March 20, 2024, and focus on Global Trends in the Right to be Forgotten. Two more webinars – on Hate Speech and the African System – will follow. Do not miss out! Register now.

We bring four newly added cases today. In Sáez v. Kaiser, Chile’s Supreme Court held that a YouTube video, which referred in a derogatory manner to the victims of crimes against humanity under the last Chilean dictatorship, constituted hate speech and ordered its removal. Hungary’s Supreme Court of Appeal ruled that the use of images and videos from a political party leader’s wedding did not violate the right to privacy after a news outlet had published an image of the political leader’s wife doing the Nazi salute and a video with homophobic and racist jokes. In Saint Lucia, the High Court of the Eastern Caribbean Supreme Court held that a school rule that governed the length of students’ hair did not violate freedom of expression and conscience. In a recent judgment, Georgia’s Constitutional Court struck down a provision that required prior notification for spontaneous assemblies on traffic roadways, thus concurring that the provision undermined the freedom of assembly.

Decisions this Week

Republic of Georgia
Public Defender of Georgia v. Parliament of Georgia
Decision Date: December 14, 2023
The Constitutional Court of Georgia struck down a provision requiring prior notification for spontaneous assemblies on traffic roadways. The claim was brought by the Public Defender of Georgia who argued that the prior notification requirement for spontaneous assemblies violated freedom of assembly. The Constitutional Court of Georgia concurred, confirming that requiring prior notification for spontaneous assemblies effectively bans such assemblies on traffic roadways, thereby undermining the freedom of assembly. Simultaneously, the Court emphasized that the Government retains the authority to demand notifications for spontaneous protests as soon as they can be reasonably anticipated.

Saint Lucia/ Eastern Caribbean
Elliott v. The Board of Management of St. Mary’s College
Decision Date: November 23, 2023
The High Court of the Eastern Caribbean Supreme Court in Saint Lucia held that a school rule which governed the length of students’ hair did not violate the constitutional rights to freedom of expression and conscience. A student’s mother applied to court on his behalf after he was informed that his hair was longer than the stipulated length and instructed to not return to school until he had cut it. The Court held that as the student did not provide any evidence for what the hairstyle was meant to convey it did not constitute a form of expression, and as it was not associated with a belief that was serious and coherent, it could not be protected under freedom of conscience. The Court added that even if it had found that the school rule infringed the right to freedom of expression and conscience, it was not arbitrary and had a legitimate purpose and so would not have constituted an unjustifiable limitation of the rights.

Chile
Sáez v. Kaiser
Decision Date: December 15, 2022
The Supreme Court of Chile held that a video posted on YouTube by Mr. Johannes Kaiser Barents von Hohenhagen —in which he referred in a derogatory manner to the victims of crimes against humanity committed by the last Chilean dictatorship and cast doubt on the existence of those crimes— constituted hate speech not protected by the right to freedom of expression, and ordered its removal from all social networks. Ms. Leila Irina Nash Sáez—the sister of Michel Nash Sáez, a victim of the military dictatorship— filed a constitutional complaint against Johannes Kaiser to have the video removed from YouTube arguing that it violated the right to honor of her brother and family, and insulted the memory of the victims of the last dictatorship. The petitioner claimed that her brother was kidnapped, imprisoned, tortured, and murdered during the last Chilean dictatorship and that these events had been proven in a trial for crimes against humanity. For his part, the defendant argued that the message he conveyed in the contested YouTube video was protected by his right to freedom of expression. The Chilean Supreme Court held that the defendant’s video constituted “hate speech” that displayed an aggressive treatment towards victims of serious crimes in Chilean history, while questioning the existence of these crimes against humanity. Thus, the Court ordered the defendant to remove the video from all social networks.

Hungary
The case of the political party leader’s wife’s Nazi salute
Decision Date: February 16, 2022
The Hungarian Curia, the Supreme Court of Appeal, held that the use of images and videos from a political party leader’s wedding was not a disproportionate infringement of the right to privacy. A news outlet had published an image of the political leader’s wife doing the Nazi salute and a video of a speech involving homophobic and racist jokes at the wedding. The Court of First Instance awarded the couple damages for an infringement of privacy but this was overturned on appeal. The Curia emphasized the fundamental right to freedom of expression and of the press, and noted that the image and video had not been taken in a specifically intimate setting and had been taken by a third party commissioned by the couple to photograph the wedding. The Curia accepted that the leader’s wife was not a public figure herself, but found that the matter was nevertheless relevant to public debate.

Community Highlights & Recent News

● Upcoming Event – Launch of French Language Global Case Law Database: Global Trends in the Right to be Forgotten. Join the second webinar of our ongoing Webinar Series in French and English. How has the so-called Right to be Forgotten evolved over the last decade since the 2014 landmark ruling in Google Spain SL v. Agencia Española de Protección de Datos? The webinar will discuss the Special Collection Paper titled, “Does our past have a right to be forgotten by the internet?”. French legal scholars will present recent case law from French courts, and panelists from France and Argentina will cover de-indexing, deleting, or anonymizing content, and how judges around the globe are dealing with the social processes of memory and forgetting on the internet. The panelists will also consider trends in balancing freedom of expression with privacy, intermediary liability, reputation, and the special duties of public figures. March 20, 2024. 12-1:00 pm ET (New York); 4-5:00 pm GMT (Dakar); 5-6:00 pm CET (Paris). Learn more and register here.

● Upcoming Event – Dawn of Digital Dictatorship: Weaponizing the Law Against Online Speech in Southeast Asia.The ASEAN Regional Coalition to #StopDigitalDictatorship, coordinated by the Manushya Foundation and including regional and local organizations based in Indonesia, the Philippines, Myanmar, and Vietnam, will launch a joint report series on digital authoritarianism in Southeast Asia. The report documents the digital landscape changes and their impact on diverse identities and marginalized groups in the region. “The report calls for government accountability, legislative safeguards, and tech company responsibility to counteract digital authoritarianism in Southeast Asia.” At the report’s launch, the speakers will discuss challenges to free speech, information access, and privacy, along with potential remedies and solutions. March 12, 2024. Join online or in person at SEA Junction, Bangkok Art and Culture Centre, 939 Rama 1 Rd, Pathum Wan, Bangkok, Thailand. 5:30-7:00 pm Bangkok Time. Register here.

● Türkiye: Big tech should protect free speech and resist state censorship.In a joint statement, 22 human rights organizations, including ARTICLE 19, Human Rights Watch, and Access Now, call on social media platforms to protect free speech and resist state censorship ahead of Türkiye’s municipal elections on March 31, 2024. The statement also urges social media companies to disclose all government requests for account and content restrictions, including informal ones, and the Turkish government to immediately stop censoring critical voices and pressuring social media platforms to block critical content. The rights organizations argue the companies’ “compliance driven by fear” is an approach that “undermines the platforms’ responsibility to respect human rights under the United Nations Guiding Principles on Business and Human Rights (UNGPs).” The statement strongly encourages the platforms to adopt a coordinated response, increase transparency, and challenge content removal orders in court. Read the joint statement in Turkish.

● EU: The Anti-SLAPP Directive creates a promising minimum standard for Member States.The Coalition Against SLAPPs in Europe (CASE) welcomes the law it had been advocating for tirelessly: the European Parliament adopted the Anti-SLAPP Directive in a plenary vote on February 27, 2024. The directive sets the minimum standards for protecting journalists, civil society representatives, and other public watchdogs against SLAPPs. CASE notes the next phase – the transposition of the Directive’s protections into national legislation – is crucial, “Member States, this is your cue: now everything remains to be done at Member States level to protect public watchdogs against SLAPPs.” The Coalition offers recommendations based on the analysis of the Directive’s final text; the recommendations concern the early dismissal mechanism, definition of cross border, and compensatory damages.

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.

Uncovering News Deserts in Europe: Risks and Opportunities for Local and Community Media in the EU
The Centre for Media Pluralism and Media Freedom (CMPF) published a study of the so-called “news deserts” – areas that lack “sufficient, reliable, and diverse information from trustworthy media sources” – in Europe. The report results from an all-EU research project that assessed challenges and opportunities faced by local and community media outlets in the 27 Member States. The CMPF methodology includes such indicators as economic and political conditions, local journalists’ safety, the degree of media’s inclusiveness towards minorities and marginalized groups, and engagement with the audience. The report concludes with recommendations for the EU, Member States’ national and local authorities, media organizations, journalists, scholars, and other stakeholders. CMPF highlights an urgent issue to address – “the lack of data related to the economic and financial information for both local and community media, as well as locally focused audience measurements and more detailed research on trust, audience perspectives, perceptions and engagement within local media markets.”

Post Scriptum

New Report – Freedom of Expression in Generative AI: A Snapshot of Content Policies, by Jacob Mchangama and Jordi Calvet-Bademunt. The Future of Free Speech released a report on free speech in the context of generative AI. The authors emphasize the importance of discussing “what type of content we want and do not want in generative AI.” The report reviews chatbots’ policies – those of AI21 Labs Chat, Gemini, ChatGPT, Claude, Coral, and Pi. What content do they prohibit? Each chatbot has policies on mis- and disinformation and hate speech. The study forwards three key findings. 1) The chatbots’ policies “do not align with the benchmark international human rights standards.” 2) The policies lack proportionality and “go significantly beyond the legitimate interests that justify speech restrictions.” 3) Finally, “[m]ost chatbots seem to significantly restrict their content.” Download the full report here.

Call for Applications – ARTICLE 19 Internet of Rights Fellowship 2024-2025. ARTICLE 19 invites applications for the eighth round of the Internet of Rights (IoR) fellowship, which starts in April 2024 and runs for 12 months. This opportunity promises to equip public interest advocates “with the tools they need to carry out long-term engagement to set the technical policies and standards that define the global Internet.” The fellowship offers three tracks: Censorship, Connectivity, or Datafication. Interested? Apply by March 15. Learn more about the requirements and application process here.

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