Dear Friends,

This week we are featuring a case from China that deals with a law penalizing "picking quarrels and provoking troubles" and its application to online materials. We are also sharing two historic cases from the European Court of Human Rights and the US Supreme Court. In the latter, the US Supreme Court upheld criminal convictions of Communist party organizers and limits on the First Amendment to prohibit speech causing clear and present danger. In a 1999 decision, the European Court of Human Rights found that convicting journalists for publishing freely accessible information violated freedom of expression.

Enjoy reading the case analyses and we welcome your feedback!

Columbia Global Freedom of Expression's Director Dr. Agnes Callamard participated in the Multi-Stakeholder Consultation on Strengthening the Implementation of the United Nations Plan of Action on the Safety of Journalists and the Issue of Impunity (UN Plan of Action). The consultation, held on the occasion of the first five years of the implementation of the UN Pan, was co-organized by the United Nations Organization for Education, Science and Culture (UNESCO) and the Office of the United Nations High Commissioner for Human Rights (OHCHR),

Global Witness launched a new online tracker hosted on the Guardian website that will chronicle the deaths of land and environmental defenders as soon as Global Witness documents and verifies them. The Guardian will also be deploying their foreign and environmental correspondents to report on cases of violence, attacks and threats as they happen. The project hopes to bring visibility to the deaths of environmental defenders around the world. Just in this year, 97 environmental defenders have been killed due to their work.

The Department of Homeland Security has agreed to release information regarding presidential visitors to Mar-a-Lago golf course, following a lawsuit by the Knight First Amendment Institute, Citizens for Responsibility and Ethics in Washington and the National Security Archive.

Asia

China

The Case of Wang Moumou, Shao Mou & Ors
Decision Date: April 1, 2015
Xi’an Yan Ta District People’s Court found the Defendants guilty of "picking quarrels and provoking troubles" and sentenced them to prison terms between one year to one-year and three months. It ruled that the Defendants fabricated and arranged for media coverage of a fatal accident on a construction site to force the government to mediate a dispute between the construction company and the village where the construction was taking place. The Court reasoned that the Defendants conspired to fabricate news to be published on the internet, causing a public disturbance which is chargeable under Article 293 section 1(4) of the Criminal Law of People’s Republic of China. This part of the section regarding "causing public disorder" extends to online behavior that causes a public disturbance.

Europe and Central Asia

France

Fressoz and Roire v. France
Decision Date: January 21, 1999

The European Court of Human Rights found that the conviction of two journalists for publishing photocopies of illegally obtained tax documents when the information obtained in the documents was freely available to the public violated Article 10. The applicants published information contained in tax assessments about the earnings of Jacques Calvet, the Chairman and Managing director of Peugeot. The Court reasoned that the information about Mr Calvet’s annual income was lawful and the applicants’ conviction for having published the documents in which that information was contained, namely the tax assessments, could not be justified under Article 10. The Court reiterated that Article 10 protects journalists’ right to divulge information on issues of general interest provided that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism. On this basis, Article 10 essentially leaves it up to journalists to decide whether or not it is necessary to reproduce documents, here the tax assessments, to ensure credibility. Accordingly, in this case, the interest in freedom of the press in a democratic society outweighed the need to punish the journalists for publishing the materials.

North America

United States

Dennis v. United States
Decision Date:June 4, 1951

The U.S. Supreme Court upheld the conviction of a group of Communist Party organizers who were tried and convicted under the Smith Act, which prohibited advocating or conspiring to advocate the violent overthrow of the U.S. Government. The Court reasoned that the Smith Act withstood First Amendment scrutiny because free speech has evolved to mean a right demanding that "one be permitted to advocate what he will unless there is a clear and present danger that a substantial public evil will result." In this case, the Court found that, in organizing the Communist Party, the defendants presented a clear and present danger to the government's interest in preserving itself by preventing a violent overthrow. The Court cited the Communist Party's highly disciplined structure, proclivity for espionage, commitment to violent overthrow, " coupled with the inflammable nature of world conditions" as evidence of the danger posed.

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Kazakhstan: On July 12, 2017, a criminal trial against the former chair of a Confederation of Independent Unions, Ms. Larisa Kharkova, began in the Southern-Kazakh City of Shimkent. Ms. Kharkova is being prosecuted for allegedly appropriating funds from the Confederation’s budget. The Confederation itself was liquidated in January 2017 for administrative violations. Ms. Kharkova claimed that the reasons for liquidation were a pretense to simply shut down a major union. This is a continuing trend. Since the implementation of a restrictive trade union law in 2014, the Kazakh authorities began closing down trade unions across the country.

On July 11, 2017, Kazakhtan’s President Nursultan Nazarbayev signed several troubling legislative amendments. The first requires persons who wish to run for the country’s president’s office to have five years of experience in government and as elected officials. The second amendment permits the authorities to take citizenship away from persons deemed to have caused grave harm to the national interests of Kazakhstan.

Kyrgyzstan: On July 10, 2017, human rights defender Vitaly Ponomarev who works at the Russian NGO “Memorial” was denied entry into Kyrgyzstan. The ban was sudden as Mr. Ponomarev was in Kyrgyzstan just a week prior to attend a conference on “Human Rights and Combating Extremism and Terrorism.” The official explanation for the ban is vague and claims that he violated immigration legislation which lists several reasons for denial of entry, from violations of the visa regime to threatening national security. Kyrgyzstan has banned entry of human rights advocates in the past, including representatives of Human Rights Watch.

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Help UNESCO develop internet universality indicators! UNESCO’s project to define Internet Universality indicators aims to build a framework of indicators through which to assess levels of achievement, in individual countries and internationally, of the four fundamental principles included in the Internet Universality concept:

R – that the internet is based on human Rights
O – that it is Open
A – that it should be Accessible to all
M – that it is nurtured by Multistakeholder participation.

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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