DECISIONS THIS WEEK
April 4, 2016

Dear Friends,

This week we are bringing you cases from Cambodia, South Africa, Uganda, and the Unites States that deal with issues of surveillance, anonymity, and right to information. In the 2010 case President of the Republic of South Africa. v. M & G Media Ltd., the Supreme Court of South Africa upheld the nation's “legal culture of accountability and transparency” and declared insufficient the affidavits prepared by two judges that justified non-disclosure of a report on the 2002 elections in Zimbabwe.

Global Jurisprudence in Focus , featured on a monthly basis, focuses this month on the Protection of Sources, in response to the the recent ruling for R v. Vice Media Canada, Inc and the many concerns the decision raises. We have identified for you seminal and new cases from our Case Law Database from North and Central America, Europe, and Asia. The cases review persistent and emerging threats to protection of sources and ways in which courts have reacted to them. For example, decisions from Norway, Costa Rica and Japan demonstrate how courts have balanced the constitutional right to gather and impart information with national security or the right to a fair trial.

We hope you enjoy reading the summaries below as well as the full analyses!

For the Record

Canada: Appeal Court orders Vice Media to produce source communications to police. Global Freedom of Expression expert Paul Schabas has co-authored an analysis of the Ontario Court of Appeal’s decision, which largely upheld the lower court decision, including a broad publication ban, preventing reporting on much of the police affidavit used to obtain the production order.

Trump travel ban: Hawaii judge turned his earlier temporary restraining order under State of Hawai’i and Elshikh v. Trump into a preliminary injunction that would have a more lasting effect.

Columbia University's Knight First Amendment Institute filed FOIA requests with the various US agencies to disclose records of suspicionless searches of electronic devices at US borders. The Institute is also trying to understand how the relevant agencies understand and apply Riley v. California decision, which instituted a warrant requirement for cell phone searches.

The US Senate voted to repeal the Federal Communications Commission’s 2016 broadband privacy rules giving consumers the power to choose how their ISPs use and share their personal data. This poses a serious threat to consumers and is one of the 3 negative trends that Sir Tim Berners-Lee highlighted we must tackle in order for the web to fulfill its true potential as a tool which serves all of humanity.

North America

United States

U.S. v. Mohamud
Decision Date: December 5, 2016
The U.S. Court of Appeals for the Ninth Circuit upheld a lower court ruling that the incidental collection of a U.S. citizen's activities online under Section 702 of the Foreign Intelligence Surveillance Act (FISA) did not violate the Appellant's Fourth Amendment protection from unreasonable search and seizure. The Appeals Court also held that the District Court properly rejected the Appellant's entrapment defense. The monitoring of a foreign national's email account from inside the U.S. revealed emails between the foreign national and the Appellant, Mohamed Osman Mohamud which led the government to obtain a FISA warrant to monitor the defendant's account. The FBI subsequently carried out an undercover operation in which they arranged for Mohamud to believe he was to detonate a bomb at the Portland Christmas tree lighting ceremony. The Court reasoned that because the collection of Mohamud's communications occurred incidentally during lawful surveillance of a foreign national outside the U.S. under Section 702, there was no violation of Mohamud's Fourth Amendment rights either on the incidental collection of emails or on their use to obtain a FISA warrant to surveil Mohamud and his activities.

Doe v. Coleman
Decision Date: September 22, 2016
The Supreme Court of Kentucky refused to allow the disclosure of the identity of anonymous users of a website who allegedly defamed a public figure, Hickman, because he failed to provide sufficient evidence proving the falsity of the statements. The Court reasoned that because Hickman brought the case, he bore the burden of proof, but his bare denials failed to reach a sufficient standard to convince the court to pierce the anonymous protection that the John Does were afforded. Baring evidence for a prima facie showing, the Court was unable to move to the next step of balancing the First Amendment right to anonymous speech with the right of those harmed to seek redress. The Court also reiterated the importance of free speech especially when it is political in nature and aimed at public officials but, also, that this freedom is subject to limitations.

Asia

Cambodia

The Case of Tep Vanny
Decision Date: February 23, 2017
The Phnom Penh Municipal Court in Cambodia sentenced land rights activist Tep Vanny to two and a half years in prison for "intentional violence with aggravating circumstances." These charges were brought against Ms. Vanny on the basis that she had allegedly assaulted security guards while trying to deliver a petition to the Prime Minister calling for the release of fellow activist Yorm Bopha. The incident took place during a protest outside the house of Prime Minister Hun Sen in 2013. Her conviction was handed down despite the apparent lack of evidence supporting the charge. Ms. Vanny plans to appeal.

Africa

South Africa

President of the Republic of South Africa. v. M & G Media Ltd.
Decision Date: December 14, 2010
The Supreme Court held that under the South African Bill of Rights and the Promotion of Access to Information Act of 2000, conclusory affidavits provided by the President to justify the secrecy of a report on the 2002 Zimbabwe elections prepared by two judges for President Mbeki were insufficient to justify non-disclosure. In a reference to suggested judicial discretion to review records that a public body asserts should not be disclosed, the Court warned that the public trust in a court, gleaned from the court’s openness and judicial reasoning, would be jeopardized should the court become party to the secrecy.

This case analysis was contributed by Right2Info.org.

Uganda

Charles Mwanguhya Mpagi and Izama Angelo v. Attorney General, Miscellaneous Cause No.751 of 200
Decision Date: February 3, 2010
The Ugandan Chief Magistrate’s Court of Nakawa held that in seeking disclosure of the contents of confidential oil contracts between the government and various companies, the applicants failed to meet the legal standard of the Access to Information Act because they did not show that the public benefit in disclosure outweighed the harm to the third parties. The Court found that applicants did not state how they would use information to make the government more transparent, accountable and efficient in the management of the oil resources and was therefore insufficient to prove the public interest. Furthermore, the Court disagreed that whatever a government holds in trust for its people (in this case oil), it must always disclose since the keeping of certain documents secret is necessary for the proper functioning of public services.

This case analysis was contributed by Right2Info.org.

Global Jurisprudence in Focus:
Protection of Sources

Protection of sources is an integral part of freedom of expression not only in providing the space for the media to perform its role as a watch-dog but also to ensure the free flow of information to the public on matters of collective concern. According to a report from 2007, more than 100 countries have enacted source protection laws.

North America
Branzburg v Hayes
Decision Date: June 29, 1972
The United States Supreme Court held that neither the First Amendment nor federal common law grants reporters a privilege that may prevent them from testifying in criminal matters before a grand jury. This judgment ruled on three separate cases combined into one appeal for the sake of judicial efficiency. Branzburg was subpoenaed to reveal the sources for a report he published on the drug trade, whereas the two other applicants were subpoenaed to testify before a grand jury regarding events they had observed while covering Black Panther events. The Court recognized the importance of confidentiality for protecting freedom of the press, but found the public interest in prosecuting criminals far outweighs the journalist’s confidentiality interest. The Court reasoned that since journalists have no greater access to governmental affairs than average citizens do, and if a citizen isn’t able to claim testimonial privilege for observations of criminal activities, then neither should journalists. The Court noted that the only exception where a reporter’ could claim a privilege would be if it could be proved that the government was acting in bad faith, such as seeking exposure for the sake of exposure, could not demonstrate a real need for the testimony or the subpoena was not related to an ongoing legal matter.

United States v. Sterling
Decision Date: July 19, 2013
The United States Court of Appeals for the Fourth Circuit held that a journalist and author could be forced to testify at a former CIA operative’s treason trial, even if the journalist promised his sources that they would never be revealed. The case concerned Sterling who was indicted by a grand jury for the unauthorized retention and disclosure of national defense information, a violation of the Espionage Act, based on information which was published in a book on the CIA written by NYT journalist James Risen. Citing Branzburg, the Court found that Risen’s testimony would be relevant to the case, that the testimony could not be obtained by alternative means, and that there was a compelling interest in the testimony in order to prosecute Sterling. The Court next held Risen had no common-law privilege that would prevent him from testifying at Sterling’s trial. The court rejected the argument that the lack of First Amendment or common law reporter’s privilege would “chill” press freedoms, as evidenced by the flourishing of the press since the nation’s founding. While some states may create a privilege for the press in state court actions, the Fourth Circuit reiterated that such privileges do not exist on the federal level.

Europe
Goodwin v. the United Kingdom
Decision Date: March 27, 1996
In this landmark case, the European Court of Human Rights found that a request for disclosure of a confidential source in a journalistic context was an impermissible violation of Article 10 of the European Convention on Human Rights. The applicant was a trainee journalist who received sensitive information regarding the financial state of a company which appeared to come from a confidential corporate plan, one copy of which had gone missing. The court found that injunctions to prevent the publication of the information could be considered “necessary in a democratic society” but disclosure of the source of said information was unnecessary. The Court considered that “[h]aving regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest."

Görmüş and Others v. Turkey
Decision Date: January 19, 2016
The European Court of Human Rights ruled that the Turkish magazine “Nokta” had its freedom of expression violated when the military searched its premises and seized documents and data stored in all of its 46 personal and workplace computers. The case stemmed from a 2007 publication by the magazine that relied on classified information made available to the magazine by whistleblowers. The Court addressed the issue of the protection journalistic sources of information and concluded that the government’s unannounced raid of the magazine extended beyond the military prosecutor’s office request to hand over the files provided by the whistleblower. In the Court’s view, such seizure could further deter anonymous sources from assisting the press in informing about matters of public interest that are otherwise secretly held by government authorities without any reasonable justification.

Norway
Rolfsen and Association of Norwegian Editors v. the Norwegian Prosecution Authority
Decision Date: November 20, 2015
The Supreme Court of Norway found unanimously for broad protection against exposure of journalistic sources even in the context of a government anti-terror investigation. Norwegian filmmaker Ulrik Imtiaz Rolfsen was making a documentary on Islamist extremism which featured a Norwegian citizen who was under the surveillance by the Police Security Service of Norway (PST) and was later arrested and charged for attempting to join ISIS in Syria. PST subsequently searched and seized Rolfsen’s film concerning the terror suspect. The first instance and appeals court upheld the petition to maintain the seizure of the recording on the ground that the specific circumstances of the case, particularly the public interest in national security, created an exception from the protection of sources. The Supreme Court of Norway, however, set aside the seizure order. It found that the content of the film recording did not amount to an exception under Section 125 of the Criminal Procedure because it was not of “vital significance” to the ongoing investigation against the terror suspect. Additionally, the Court assessed the interest in protection of sources against the interest of public in prevention of serious crimes in accordance with Article 10 of the European Convention on Human Rights. It found that Rolfsen’s documentary was “at the heart of investigative journalism,” and that effective protection of his sources was vital in creating the film. On the other hand, the Court found that PST had other investigative methods at its disposal and it was not clear how necessary the recording was for the anti-terror investigation.

Costa Rica
Diario Extra v. Director of the Judicial Investigation Agency
Decision Date: March 21, 2014
The Supreme Court ruled it is a violation of freedom of expression and the confidentiality of sources to order a journalist’s phone records be released as part of an investigation into the possible commission of a crime by a third party. Representatives of the Costa Rican newspaper Diario Extra filed a complaint that two investigative agencies obtained the phone records of a journalist at the newspaper in order to identify the person who was leaking confidential information to the journalist about criminal investigations. According to the Court, monitoring journalists’ calls in the context of a criminal investigation against a third party not only violates the journalist’s right to privacy, but also the right to confidentiality of sources, which is an essential condition for exercising the right to freedom of expression and information. For the phone records of a journalist to be legitimately monitored, the journalist must be under criminal investigation for committing a crime, and the monitoring warrant must be strictly proportionate to the objective pursued. The Court explained that for journalists, confidentiality of sources has a much broader scope of protection than other professions because such protection is essential for society to be properly informed and for journalists to properly fulfill their role. The Court ordered the elimination of all monitoring of incoming and outgoing phone calls made by or connected to the reporter, thus protecting the rights to privacy and the confidentiality of sources.

Japan
Kaneko v. Japan (“Hakata Station Film Case”)
Decision Date: November 26, 1969
The Supreme Court of Japan held that the constitution protects the right to impart and receive information necessary for reporting the news, but that it is not an absolute right, and that the media can be required to hand over news footage when this is necessary to ensure a fair trial. In what became known as the Hakata Station Incident, students demonstrated against a visit by the nuclear-powered aircraft carrier, the U.S.S. Enterprise, leading to four arrests and one indictment. Supporters of the students brought charges against the Police Commissioner and police officers, claiming abuse of police authority. The District Court, at the request of the petitioners, ordered that four Fukuoka television stations submit all film of the protests into evidence, which the stations refused. The Supreme Court found that the court order in question was not directly related to the freedom of newsgathering because the order targeted only film that had already been broadcast. However, the Court did indicate that the use of this film for another purpose could lead to interference with the freedom of newsgathering. In this case, the media’s freedom of newsgathering had to be balanced against the right to a fair trial and hence, the Court found that given the circumstances of the case at hand, the evidentiary use of the film was unavoidable.

Other Noteworthy News

Monitoring Human Rights and Freedom of Expression

International media leaders sent a letter to President Donald Trump expressing their concern over the US administration's persistent attacks on the press and how his actions since coming to office risk inspiring leaders in countries with weaker press freedom safeguards to repress or stifle essential freedoms.
Occupy leaders make first Hong Kong court appearance flanked by 100 supporters with yellow umbrellas. The nine face a range of public nuisance charges, and are released on bail with the case adjourned to May 25, 2017.
Jailed blogger Nguyen Ngoc Nhu Quynh was honored in absentia by the U.S. government Wednesday with the International Women of Courage Award for her work highlighting rights abuses and providing a platform for peaceful dissent in Vietnam.
Researchers at Cardiff University identified a spike in hate speech on social media on the day the UK triggered Article 50 to begin the Brexit process.

New Initiatives

UNESCO is conducting a multi-stakeholder consultation on strengthening the UN Plan of Action on the Safety of Journalists and the Issue of Impunity. They are seeking your contributions and insights and have a form with five questions here, If you have any problems accessing the form please contact Clare Burke at c.burke@sheffield.ac.uk
Applications invited for “Media Tools against Hate Speech” Workshop for EU NGOs sponsored by The Media Diversity Institute (MDI) on 22 – 26 May 2017 in London. CSO activists from EU countries interested in participating at the workshop should contact info@media-diversity.org for further information on how to apply. All costs of participation will be covered by the organisers.

Recent Publications

Two new reports by Elon University's Imagining the Internet Center and the Pew Research Center. The first surveys opinions of more than 1,500 technologists, futurists and scholars regarding the future of the Internet social ecosystem: The Future of Free Speech, Trolls, Anonymity, and Fake News Online. Many experts fear uncivil and manipulative behaviors on the Internet will persist - and maybe get worse.

The second study focuses on algorithms: Code-Dependent: Pros and Cons of the Algorithm Age. The experts interviewed worry that algorithms place too much control in the hands of corporations and governments, perpetrate bias, create filter bubbles, and cut choices and creativity.

Columbia Global Freedom of Expression seeks to advance understanding of the international and national norms and institutions that best protect the free flow of information and expression in an inter-connected global community with major common challenges to address.

For comments or inquiries please email us at globalfreespeech@columbia.edu