Kenya
Andama v. Director of Public Prosecutions
Decision Date: July 31, 2019
The Nairobi High Court in Kenya ruled that a provision criminalizing the publication of “obscene information in electronic form” was an unjustifiable limitation of the rights to freedom of expression and to a fair trial. The case had been brought by an individual who had been charged with three counts under the provision in relation to tweets he had published which were critical of public officials and which used “impolite” language. The Court noted that the legislation in question had come into force before the adoption of the new Constitution in 2010 and represented an era where “government was used to forms of communication that it could easily access and control.” The Court held that the vagueness of the words and phrases in the provision allowed for subjective interpretation and so infringed on the right to freedom of expression and denied an accused a fair trial.
 
European Court of Human Rights
Times Newspapers Ltd. v. United Kingdom
Decision Date: November 13, 2018
The European Court of Human Rights dismissed a right to access information claim brought by the Times Newspaper (Times) on the ground that they had not exhausted domestic remedies. The Times complained that the United Kingdom was in violation of Article 10 of the European Convention on Human Rights because the exemption provided under Section 32(2) of the Freedom of Information Act 2000 (“FOIA”) did not assess whether the denial of access to information was appropriate and necessary. As part of a journalistic investigation into alleged misappropriation of funds by a charitable organization, the applicants followed the FOIA procedure to request documents from the Charity Commission. The Charity Commission initially refused to disclose the requested documents claiming absolute exemption under section 32(2) of the FOIA but eventually released some documents after a protracted legal process. The Times did not seek the alternate path of judicial review to gain access to additional documents finding that the delay would render the information no longer newsworthy and the legal costs would constitute an excessive and disproportionate burden on the right to freedom of expression.  After a lengthy review of domestic procedures and European case law, the Court concluded that the common law alternative to seeking judicial review under the Charities Act would have provided an effective legal remedy satisfying the requirements of Article 10.