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.

With the French Case Law Database fully launched, our Webinar Series in French and English continues. We invite you to join the three upcoming sessions. Next Wednesday, March 20, we will discuss Global Trends in the Right to be Forgotten. On March 25, the focus will shift to Hate Speech. The series will conclude on April 2 with a webinar on Freedom of Expression Protections and Limitations within the African System. Are you interested? We would love to have you in the audience. Register here.

We keep featuring nominees for the 2024 CGFoE Prizes. Today’s decisions concern the Excellence in Legal Services category. The Supreme Court of Chile held that the prosecution and detention of a former judge was justified because of grave indications that he had authorized the wiretapping of investigative journalist Mauricio Weibel Barahona and other alleged victims. In Chesanovska v. France, the ECtHR recognized an amicable settlement between France and Anna Chesanovska, who claimed the French domestic courts had violated her freedom of expression by ordering her to pay a fine for defaming the director of a documentary on the 2014 Ukrainian revolution. A Slovakian district court held that Slovakia had failed to sufficiently facilitate equal education for pupils from marginalized Roma communities during the COVID-19 pandemic; the Court’s ruling intertwined the right to education and prohibition of discrimination with digital technologies, freedom of expression, and the right to information.

On the note of nominations and Prizes, we have a little teaser for you to conclude this week. Mark your calendars: on April 25, 2024, in cooperation with UNESCO, CGFoE will host a day-long conference culminating with the Award Ceremony for the 2024 Global Freedom of Expression Prizes. We will discuss global free speech challenges and ways forward. And we will celebrate the achievements of those who protect freedom of expression worldwide.

More soon – stay tuned.

Decisions this Week

Chile
The Case of Chilean Journalist Mauricio Weibel
Decision Date: November 28, 2023
The Supreme Court of Chile held that the prosecution and detention of former judge Juan Antonio Poblete Méndez (the appellant) was justified because there were serious indications that he had authorized the allegedly illegal wiretapping of investigative journalist Mauricio Weibel Barahona (the petitioner) and other alleged victims. Weibel filed a criminal complaint against those responsible for an illegal spying and wiretapping operation that he allegedly suffered due to his journalistic investigations into corruption in the Chilean army. Poblete Méndez argued that he had not been duly notified of the complaint, that he did not commit any crime, that there was no compelling evidence to detain him, and that he was not guilty of the alleged acts because he suffered from serious mental health problems that rendered him immune from any criminal liability. The Supreme Court of Chile held that Poblete Méndez was duly notified of the complaint on account of his own participation in the proceedings, as he made several requests during the criminal proceedings against him. The Court also held that the decision of the Chilean Court of Appeals confirming the continuation of the criminal proceedings and the preventive detention of Poblete Méndez was duly justified. For the Court, there were serious and grave indications regarding the commission of the crimes charged and of the accused party’s involvement in them. Finally, the Court held that the issue regarding Poblete Méndez’s lack of criminal responsibility due to his mental health should be determined further in the proceedings in accordance with Chilean law.

Slovakia
Plaintiff (anonymized minor) v. The Ministry of Education, Science, Research and Sport of the Slovak Republic
Decision Date: November 6, 2023
A Slovakian district court held that Slovakia had insufficiently implemented measures to facilitate equal education for pupils from marginalized Roma communities during the COVID-19 pandemic, particularly in the context of distance and online education. A student had argued that, due to her Roma ethnicity and social background, she experienced indirect discrimination as the Internet connection and necessary devices for distance online education were not provided during her first three years at elementary school. The Court emphasized the insufficient digital literacy and equipment in marginalized Roma communities which formed the basis for finding indirect discrimination by the state when it mandated distance education. Thus, the Court upheld the claim and awarded compensation.

European Court of Human Rights
Chesanovska v. France
Decision Date: September 28, 2023
The Fifth Section of the European Court of Human Rights recognized an amicable settlement between France (the respondent State) and Ms Anna Chesanovska (the applicant) in a case concerning Chesanovka’s claim that the French domestic courts violated her right to freedom of expression by sentencing her to pay approximately 4,000 euros for defaming the director of a documentary film about the 2014 Ukrainian revolution. Ms Anna Chesanovska was a Ukrainian-language translator hired by director P.M. to translate several materials for a documentary film about the 2014 Ukrainian revolution. In a post on the “Comité Ukraine” blog and an article published on the Huffington Post website, Ms Chesanovska characterized the director as “biased,” the documentary as “propaganda” and said it plagiarized footage from another Ukrainian documentary, while claiming that the editing misrepresented the actual content of the testimonies of some of the people interviewed. Mr P.M. sued Ms Chesanovska in the French courts for defamation. The French courts ordered Ms Chesanovska to pay Mr P.M. 2000 euros in damages and 2000 euros to publish the judgment in a French newspaper or on a French website and to cover legal costs and expenses. Ms Chesanovska brought an application against France before the European Court of Human Rights arguing that the right to freedom of expression protected her criticism of the documentary because it raised issues regarding Ukrainian geopolitics in the context of a debate of great public interest. Chesanovska also argued that other experts in the field supported her criticism of the documentary and that the fines ordered by the French courts were disproportionate. For its part, France proposed an amicable solution whereby it offered to pay Chesanovska 15,000 euros, which she accepted. The ECtHR found that the agreement reached by the parties was in conformity with Article 39 of the European Convention on Human Rights and respected human rights. Thus, it decided to recognize the friendly settlement without ruling on the merits of the application.

Community Highlights & Recent News

● Upcoming Event – Launch of French Language Global Case Law Database: Global Trends in the Right to be Forgotten. We invite you to join the second webinar of our ongoing Webinar Series, marking the launch of the French Language Database. The webinar will feature the Special Collection Paper “Does Our Past Have a Right to be Forgotten by the Internet?” and discuss how case law on the so-called Right to Be Forgotten has evolved over the last decade since the 2014 landmark ruling in Google Spain SL v. Agencia Española de Protección de Datos. Panelists from France and Argentina will speak about de-indexing, deleting, and anonymizing content. They will also cover other questions, such as: How are judges around the world dealing with the social processes of memory and forgetting on the internet? What are the 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.

● ECOWAS Court Orders Sierra Leone to Compensate Student Victim of Police Crackdown. The Media Foundation for West Africa (MFWA) reports that the ECOWAS Court of Justice found the Republic of Sierra Leone guilty of violating the fundamental rights of Mohamed Morlu, a 2017 student protestor who had been wounded by the Sierra Leone Police Force. On March 23, 2017, Morlu joined other students from Njala University in Bo City, Sierra Leone, for a protest march that addressed the Ministry of Education during a four-month disruption of students’ academic work. The police fired shots at the crowd, gravely injuring Morlu and others. The Court rejected the government’s claim that the injury had been an accident and held that “the firing of live ammunition into the crowd of protesting students by the police [had been] unjustified.” The Court ordered the Sierra Leonean government to compensate Morlu with $25,000. The MFWA notes, “The decision is a watershed intervention, especially as the trend of brutal suppression of public protests continues unabated in West Africa.”

● Pakistan: X/Twitter Ban – Businesses Suffer, Journalists Struggle, Internet Slows. IHC Issues Notices to Information Ministry, PTA on Social Media Ban Petition. According to the Pakistan Press Freedom Foundation (PPF), social media platform X (formerly Twitter) has been under an “unannounced” ban in Pakistan, affecting businesses, journalists, and other platform users nationwide since February 17, 2024. X access disruptions began after allegations of fraud during Pakistan’s February 8 general elections emerged. The unofficial ban stayed in place despite the Sindh High Court ordering the federal government and Pakistan Telecommunications Authority (PTA) to restore X on February 22. Most recently, in response to Ehtisham Abbasi’s petition that argued the X ban violated the constitutional guarantee of free speech, the Islamabad High Court (IHC) issued notices to the Ministry of Information Technology and PTA.   

●  EU: Media Freedom Act – Big Advance for Right to Information in Europe.The European Parliament just passed the European Media Freedom Act (EMFA), and Reporters Without Borders (RSF) welcomed this adoption of Europe’s first press freedom law. A longtime advocate for strong legislative protections of the right to information and media independence in the EU, RSF had submitted proposals to the Act’s draft. RSF’s recommendations influenced the final version of the law, which now “includes safeguards for protecting editorial independence within news media, preventing political interference, limiting the dangers resulting from overly concentrated media ownership, and preventing intrusive surveillance of journalists.” To protect media outlets from arbitrary content moderation and content removal by online platforms, the Act turns to the Journalism Trust Initiative “as a benchmark for identifying news media.”

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.

Journalism, Media, and Technology Trends and Predictions 2024.
The report, written by Nic Newman and published by the Reuters Institute for the Study of Journalism with the support of the Google News Initiative, starts straightforwardly: it declares 2024 as “another challenging year ahead for journalism.” Artificial intelligence, the disruptions it delivers to the media sector, critical elections taking place around the world, and the continuing wars force journalists and media outlets “to rethink their role and purpose with some urgency.” Journalism content will face radical distribution changes due to Search Generative Experiences and AI-driven chatbots that will reduce media outlets’ audiences. The report includes findings from a survey conducted between November and December 2023 in which over 300 digital leaders from more than 50 countries and territories participated. Despite the grim forecasts, the report still offers ways for journalists and media to adapt, “Embracing the best of AI while managing its risks will be the underlying narrative of the year ahead.” In this podcast episode of the Reuters Institute for the Study of Journalism, Nic Newman discusses the report’s findings and more. 

Post Scriptum

● New Report – On Risk Assessment and Mitigation for Algorithmic Systems, by Jeff Allen and Abagail Lawson. The Integrity Institute, a professional community and think tank working to advance the protection of the social internet, released a report on risk assessments, audits, and mitigation plans and what those should include to cover online platforms’ algorithmic systems. Highlighting examples from around the world, including the EU’s Digital Services Act (DSA), the report states risk assessments are a popular component of policies directed at online platforms. But what is required of the risk assessments to be comprehensive and eventually help meet the ambitious goals of online harm reduction – those of the DSA, for instance? The report turns to platform algorithms – the “often-mentioned scapegoats of risk [that] can play a significant role in spreading the content that harms individuals and society” – and offers “a framework for risk assessments of algorithmic components of platforms that provides a foundation for comprehensive platform risk assessments.” Find the full report here.

● Delay, Depress, Destroy: How Tech Corporations Subvert the EU’s New Digital Laws, by Jan Penfrat. The article, written by EDRi’s Senior Policy Advisor Jan Penfrat and first published by euronews, argues that the biggest tech companies – Apple, Amazon, Meta, and TikTok – are undermining the EU’s Digital Services Act (DSA) and Digital Markets Act (DMA) as the two laws become fully applicable. The corporations resort to two main strategies: filing lawsuits against the European Commission and weakening the laws with malicious compliance. As for the former, Amazon was among the first to sue the European Commission, claiming the DSA’s key obligations cannot target the company due to its business model differences. As for malicious compliance, Apple is trying to circumvent the DMA by allowing competitors’ app stores and web browsers to be on its devices yet continuing to police those apps simultaneously. “It is time for Big Tech corporations to stop pouting and live up to their responsibility,” Penfrat concludes, encouraging the digital rights community to hold the corporations accountable.

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