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Advancing understanding of the norms and institutions
that best protect the free flow of information and expression.
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Dear Friends,
In 2024, CGFoE turns 10. Marking a decade of championing free speech, we invite you to celebrate the initiative with us. To start, we are unveiling our brand new anniversary logo. The round number 10 prompts reflection. How much has been achieved? And what is on the horizon for global freedom of expression?
Founded in 2014 by then Columbia University President Lee C. Bollinger, CGFoE has been advancing global norms on freedom of speech and the press, building bridges across jurisdictions and disciplines. Our flagship project - the Global Case Law Database - now boasts over 2,200 case analyses of significant court decisions from over 130 countries. There are fully searchable databases in Spanish, Arabic, and French and translations of landmark cases in Portuguese and Russian. Our Special Collection Papers are available in English, Spanish, Portuguese, and French.
Join us for a celebratory all-day event on April 25, 2024. We will host a high-level conference co-chaired by UNESCO, a networking lunch, a book talk with journalists and authors Elena Kostyuchenko and Paul Caruana Galizia, and the 2024 Global Freedom of Expression Prize Ceremony. Titled "On the Precipice: Defending Freedom of Expression in an Era of Existential Threats," the event will discuss global free speech challenges, achievements, and ways forward. We will meet in person at the Italian Academy, Columbia University, New York. RSVP here.
Meanwhile, we continue to feature nominees for the 2024 CGFoE Prizes in the Excellence in Legal Services category. The announcement of winners is coming soon, and we encourage you to pick a favorite beforehand. This week’s cases relate to SLAPPs. In OOO Memo v. Russia, the ECtHR referred to the notion of SLAPP for the first time, ruling that ordering a media company to release a retraction to the effect that it had published false statements about a regional state body was not justified. The Constitutional Court of South Africa held that a SLAPP suit defense exists in South African law as part of the broad category of abuse of process after two Australian mining companies brought defamation suits against environmental lawyers, community activists, and a social worker. Finally, in a later South African case, a Full Court of the High Court dismissed a private criminal prosecution instituted by Jacob Zuma, former President of South Africa, against a senior, female, legal journalist reporting on his criminal trial, as an abuse of process.
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South Africa
Maughan v. Zuma
Decision Date: June 7, 2023
A Full Court (comprising three judges) of the High Court in South Africa dismissed a private criminal prosecution instituted by the former president of South Africa, Jacob Zuma, against a senior, female, legal journalist reporting on his criminal trial, as an abuse of process. The journalist had published an article about his trial that included information about Zuma’s medical condition, which had been obtained from the public court documents and which had been relied on by Zuma as a basis for securing a further adjournment of his long-delayed criminal trial for alleged fraud and corruption during his presidency. When Zuma issued criminal summons against the journalist on grounds that she had disclosed his confidential medical information unlawfully, the journalist applied to have the summons set aside as an abuse of court process. Embracing three amici curiae submissions, the Court heard the matter on an expedited basis and expanded the concept of a SLAPP suit to abuse of process in criminal proceedings. The Full Court found that the private prosecution had no merit and had been brought solely for the purpose of intimidating and harassing the journalist as a result of her reporting specifically on Zuma’s criminal cases, which reporting the Court noted was essential to ensure that the public learns the truth about the criminal allegations, sees justice being done and maintains trust in the criminal justice system.
Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others
Decision Date: November 14, 2022
The Constitutional Court of South Africa ruled that a SLAPP suit defense exists in South African law as part of the broad category of abuse of process. After two Australian mining companies brought defamation suits against environmental lawyers, community activists and a social worker (“the defendants”), the defendants filed a special plea, arguing that the defamation cases constituted SLAPP suits. The High Court accepted that a SLAPP suit defence is suitable in South Africa and the companies appealed to the Constitutional Court. The Court held that filing a case against those who speak out on matters of public interest as a tool to silence or deter that opposition when the aim of the litigation is not to vindicate a right constitutes a SLAPP suit in South Africa. However, the Court found that the defendants in this case had not proven all the requirements for a successful SLAPP suit defence.
European Court of Human Rights
OOO Memo v. Russia
Decision Date: March 15, 2022
In its judgment of March 15, 2022, The European Court of Human Rights (ECtHR) expressed its concerns about the risk for democracy of court proceedings instituted with a view to limiting public participation, interfering with the freedom of expression by media, journalists, or other public watchdogs. This is the first time the ECtHR has referred to the notion of SLAPP (Strategic Litigation Against Public Participation). The case concerns a civil defamation suit brought by a Russian regional state body against a media company. The media company was ordered to publish on its website a retraction to the effect that it had published false statements, tarnishing the claimant’s business reputation. The ECtHR found that although civil defamation proceedings were open to private or public companies to protect their reputation, this could not be the case for a large, taxpayer-funded, executive body like the claimant in this case. It decided that the interference with the media company’s right to freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights (ECHR) was not justified by a “legitimate aim”, as the Russian regional state body could not rely on the “protection of reputation and rights of others” as listed in Article 10 § 2 ECHR. The ECtHR found that allowing executive bodies to bring defamation proceedings against members of the media places an excessive and disproportionate burden on the media and could have an inevitable chilling effect on the media in the performance of their task of purveyor of information and public watchdog.
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COMMUNITY HIGHLIGHTS & RECENT NEWS
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● Upcoming Event - Hate Speech: The Enduring Problem of Thresholds. Our Webinar Series in French and English continues. Join the third session on Hate Speech. In this webinar, the panelists will reflect on existing national, regional, and international trends and practices in handling hate speech. The webinar will feature CGFoE’s Special Collection Paper on Hate Speech Case Law, now available in French. The Paper’s author Natalie Alkiviadou, Senior Research Fellow at the Future of Free Speech at Vanderbilt University, will join the webinar discussion. The panelists will cover genocide denial and antisemitism, ethnic and religious hate speech, and sexual orientation, among others. Monday, March 25, 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.
● Kyrgyzstan: With Journalists Behind Bars, Kyrgyzstan Enters New Era of Repression, by Ilya Lozovsky. The Organized Crime and Corruption Reporting Project (OCCRP) published an article about the newly jailed Kyrgyzstan journalists; one of them, Aike Beishekeyeva, who is part of Temirov Live, a team of investigative journalists uncovering corruption, has just turned 23 years old. Together with Aike, 10 other Temirov Live current and former journalists were arrested in January and remain behind bars. They are accused of inciting mass unrest. “The country was once the freest of Central Asia’s former Soviet republics by a large margin,” Lozovsky writes. “[...] In the last few years, however, under a president who combines populist rhetoric with Russian-style methods of control, the noose has tightened.” The article is part of OCCRP’s Uncensored: The Kyrgyzstan Project that seeks to continue the work of detained journalists and advocate for their release.
● US: Knight Institute Comments on Supreme Court Ruling on Public Officials and Social Media Blocking. Katie Fallow, Senior Counsel at the Knight First Amendment Institute at Columbia University, responded to the US Supreme Court’s decision in Lindke v. Freed, a case that argued a public official, using his personal social media account, had violated the free speech rights by blocking the account of a constituent. “We’re gratified that the Court recognized that public officials must comply with the First Amendment when they use their personal social media accounts to carry out their official duties [...],” Fallow commented. “The Court was also right to hold that public officials can’t immunize themselves from First Amendment liability merely by using their personal accounts to conduct official business.” However, Fallow expressed disappointment: the Court failed to adopt “the more practical test” that approached the matter through a balance between public officials’ free speech interests and the free speech interests of those social media users who wish to communicate with them.
● WANA Region: New Report - Mapping Tech Companies’ Cloud Expansion in the Gulf and its Human Rights Implications, by Aksel Eck. SMEX, a non-profit advancing digital rights across West Asia and North Africa (WANA), released a report authored by Aksel Eck, a researcher from Norway, on the expansion of cloud and data center operations by technology companies - those from the US and China in most cases - in the Gulf Council Cooperation (GCC) region. The expansion occurs despite the warnings of civil society organizations, including SMEX, over human rights threats and violations that cite “the highly restrictive control of internet activities, pervasive government surveillance, and prosecution of online speech.” One of the report’s key findings is that the five biggest global cloud providers - Alibaba, Amazon, IBM, Google, and Microsoft - support the GCC states’ plan for “digital transformation” projects and provide the necessary infrastructure. Prioritizing profits, “technology companies are turning a blind eye to [the GCC’s] lackluster human rights track records,” Eck writes. Download the full report here.
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TEACHING FREEDOM OF EXPRESSION WITHOUT FRONTIERS
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This section of the newsletter features teaching materials focused on global freedom of expression which are newly uploaded on Freedom of Expression Without Frontiers.
Social Media Platforms In The Age Of The Fediverse
Published by Masaar, a community of lawyers and technologists advancing digital rights in Egypt, the article explains “the Fediverse” as a challenge to the concentration of Internet power in the hands of few tech companies. Two core ideas build the Fediverse: 1) decentralization and 2) federalism. The article dives into those and gives an overview of the Fediverse’s technological foundation, its philosophy, objectives, first application and evolution. The article also lists some of the networks currently running - Mastodon, PeerTube, Diaspora, and Pixelfed - and discusses the Fediverse’s future along with the challenges it entails, such as difficulty in attracting users, lack of sustainability guarantees, and security threats. The paper concludes on an optimistic note, encouraging Internet users to try a Fediverse application: “Building a free Internet is the only way for it to support its users’ rights and freedoms. Thus, tools like the Fediverse are very important for the future of the Internet and accordingly for the future of us all.”
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● Can AI be sued for defamation? by Joel Simon. In this article, published by Columbia Journalism Review, Joel Simon, Founding Director of the Journalism Protection Initiative at the Craig Newmark Graduate School of Journalism, raises questions on AI liability in the context of defamation. Simon refers to Eugene Volokh, a First Amendment scholar, who concludes: “ChatGPT, or any AI content provider, is legally liable for defamatory content if certain conditions are met.” Crucially, experts seem to agree that Section 230 of the Communications Decency Act of 1996 does not apply to AI. According to Volokh, legal action can be pursued through two frameworks: 1) under the actual-malice standard, and 2) negligence if product design flaws are to blame for defamatory content. Mentioning risks of “automated self-censorship,” Simon still argues, “Legal liability for content moderators with all the necessary carve-outs and qualifications is essential for informed democratic debate. And it’s been missing for too long.”
● Call for Applications: Associate Solicitor (Senior Legal Officer) for Britain. The European Legal Support Center (ELSC) is hiring an Associate Solicitor (Senior Legal Officer) to lead its legal team in Britain. The candidate is required to have experience in running litigious cases and come with expertise in one of the ELSC’s main practice areas, which are “(i) public law and human rights; (ii) employment and discrimination and (iii) defamation law.” The Center also works with cases that are related to “data rights, freedom of information, criminal law, actions against the police, charity law, education law, international humanitarian law, and immigration issues.” The application deadline is April 7, 2024. Learn more here.
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