Germany
Anas M. v. Facebook Ireland Limited
Decision Date: March 7, 2017
The Landgericht Würzburg, a First Instance Court in Germany, refused to grant an injunction forcing Facebook to take down a selfie of the Claimant, a Syrian refugee, with the German Chancellor Angela Merkel which showed up in anonymous posts on Facebook, falsely accusing him of taking part in several terrorist attacks in Berlin in 2016. The Court reasoned that Facebook was neither the perpetrator nor a participant in the alleged defamation of the Claimant and had not in any way manipulated the content, which would have made it legally responsible for the distribution. The Court also said that, under the European Union's electronic commerce rules, Facebook, as a 'hosting provider' was not obliged to 'proactively' search for and remove content unless the content is reported and is clearly unlawful. Following the report, Facebook used geo-blocking to prevent access within Germany and Austria which was a sufficient measure for the handling of reported unlawful content.
Wowereit v. Axel Springer SE
Decision Date: September 27, 2016
In September 2016, the Supreme Court of Appeal in Germany (Bundesgerichtshof) overruled the lower courts’ finding that a newspaper had violated the personality rights of the Mayor of Berlin by publishing photographs of him having drinks on the eve of a significant parliamentary vote on his competence. The Court found that the publisher of the German newspaper BILD-Zeitung, which is part of the publishing house Axel Springer SE, was justified in publishing the photographs as they were published in the context of a political event and, therefore, contributed to a story of public interest. In reaching this conclusion, the Court reasoned that the photograph provided the public with information about his behavior on the night before a vote that could decide the future of his political career, and could then help inform public opinion on his character.
Russia
Romanenko v. Russia
Decision Date: October 8, 2009
The European Court of Human Rights found that the Russian courts had violated three newspaper founders' right to freedom of expression by holding them liable for defamation for republishing allegations from an official public statement. The newspaper had reproduced statements made by a panel of State and municipal employees and private businessmen alleging that there were irregularities in the timber business that were connected to the involvement of the regional authorities in timber purchases. In its judgment, the Court was critical of the domestic courts' failure to balance the right to freedom of expression against the need to protect reputation. Furthermore, Court criticised the domestic courts' artificial reading of a defence under domestic law that should have been open to the founders of the newspaper.
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Jurisprudence in Focus
Chile
Francisco Martorell v. Chile
Decision Date: May 3, 1996
On May 3, 1996 the Inter-American Commission on Human Rights concluded that the Chilean State violated Martorell’s rights to freedom of expression when banning his book from publication. Martorell’s book “Diplomatic Impunity,” ultimately published in Argentina, referred to circumstances that led to a former Argentinean ambassador’s departure from Chile. Following the publication in Argentina, several people filed criminal charges against Martorell for insult and slander resulting in a court order to ban the book. The Inter-American Commission cited Sunday Times v. the United Kingdom (No. 1) from the European Court of Human Rights noting that the principle of freedom of expression is subject to a number of exceptions which must be narrowly interpreted and that restrictions on an individual’s expression in turn impact society’s right to receive the information. The Commission considered individuals’ rights to honour and dignity but it in this case concluded that the decision to prohibit the entry, circulation and distribution of the book in Chile would constitute an act of prior censorship, which is prohibited by the American Convention on Human Rights, and therefore amount to an unlawful restriction of the right to freedom of expression.
United Kingdom
The Sunday Times v. United Kingdom
Decision Date: April 26, 1979
The European Court of Human Rights held that an injunction restraining the Sunday Times from publishing an article related to a settlement being negotiated out of court violated its freedom of expression. In 1972 the British newspaper the Sunday Times published articles concerning the settlement negotiations for the "thalidomide children," following pregnant women's' use of the drug thalidomide which resulted in severe birth defects. The newspaper had criticized the settlement proposals and subsequently, an injunction was issued based on the claim that future publications would constitute contempt of court. Although the Court found that the interference was proscribed by law and pursued the legitimate aim of safeguarding the impartiality and authority of the judiciary, it was not necessary in a democratic society. The Court observed that the right to freedom of expression guarantees not only the freedom of the press to inform the public but also the right of the public to be properly informed, and the thalidomide disaster was a matter of undisputed public concern. The court noted that the proposed article was moderate and balanced in its arguments on a topic that had been widely debated in society and therefore the risk of undermining the authority of the judiciary was minimal. The Court concluded that the interference did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression within the meaning of the European Convention.
Brazil
The National Association of Book Publishers v. the President of Brazil
Decision Date: July 5, 2015
The Brazilian Supreme Court ruled that biographers do not need to obtain prior authorization from the subject of a biography, nor from his family or agents, as a condition of publication. The National Association of Book Publishers applied to the Court for a Declaration of Unconstitutionality claiming Articles of the Brazilian Civil Code requiring prior authorization to publish, expose, or use the image of an individual, disclose certain writings, and to broadcast the individual's speech were unconstitutional. The Court upheld the request reasoning that the fundamental right to freedom of expression rooted in the Brazilian Federal Constitution required the Brazilian Civil Code be interpreted so that there was no longer a requirement for prior authorization from the subject of a biography before publication. The individual and his family's right to privacy was protected by the publisher's liability to compensate an injured party if the publisher exercises his right to freedom of expression in a way that exceeds what is reasonable in a democratic society.
South Africa
Primedia Broadcasting v. Speaker of the National Assembly
Decision Date: September 29, 2016
The Supreme Court of Appeal of South Africa struck down two main provisions of Parliament’s rules and policies that prohibit live television broadcasting of incidents of disorder or altercation when Parliament is in session. The appeal had been brought by Primedia Broadcasting, an independent South African media company, and a number of local and international NGOs. The court reasoned that the provisions violate the right to an open Parliament and are unconstitutional and unlawful. The Court also found the government’s use of a device to temporarily disrupt cellular phones during the session without the permission of Parliament was unlawful.
United States
Garcia v. Montogmery County
Decision Date: March 8, 2017
Montgomery County settled a First Amendment lawsuit brought by photojournalist Mannie Garcia in which he claimed his rights were violated when police officers arrested, detained and prosecuted him for attempting to record what he believed was a display of excessive force by the police. Despite the County’s denials of Garcia’s allegations, its police department updated its policies after the incident to specifically note that the public has a right to record and photograph police officers.
The case also attracted national attention as the U.S. Department of Justice (“DOJ”) filed a Statement of Interest in the action urging the federal court not to dismiss Garcia’s case after Montgomery County filed a motion to do so. In its Statement the DOJ wrote: “The United States is concerned that discretionary charges, such as disorderly conduct, loitering, disturbing the peace, and resisting arrest, are all too easily used to curtail expressive conduct or retaliate against individuals for exercising their First Amendment rights….Core First Amendment conduct, such as recording a police officer performing duties on a public street, cannot be the sole basis for such charges”.
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