Advancing understanding of the norms and institutions
that best protect the free flow of information and expression.
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Dear Friends,
We continue the Faces Behind CGFoE interview series, sharing the stories and expertise of our team members with you. This week, Communications Specialist Marija Šajkaš speaks with Juan Manuel Ospina, who contributes to the Case Law Database. Juan Manuel’s law and journalism background informs his nuanced perspective on the project.
You are a legal researcher at CGFoE. What else should we know about you? I am a lawyer and journalist from Colombia. I've had the opportunity and privilege of working mainly in the academic field. Right now, I'm very invested in understanding how censorship has shifted in light of the new media environment and in analyzing rising authoritarian regimes in Latin America and their backlash on freedom of expression.
Why did you join CGFoE? I joined CGFoE because I saw it as a chance to do work that matters. I believe what we do has an impact, especially within the human rights ecosystem. The tools we've been able to design and the dialogues we've been able to foster nourish a much-needed reflection regarding the importance of freedom of expression in democratic societies.
You are intimately familiar with the GFoE Database. What makes it relevant for journalists and media workers? I think the database is an instrument that brings the law back to the people – a tool that translates a complex array of symbols within the legal universe into a language that is simple, effective, and rigorous. With that in mind, the database serves two essential purposes: it helps media workers navigate contemporary debates and identify trends on freedom of expression, and it provides some sense of legal certainty regarding the frontiers of freedom of expression in a given time and place. Because the power of the law can change the behavior of the people, I’m convinced that, by disseminating legal standards, the database is a fertile environment for fruitful discussions regarding freedom of expression, which in turn fosters literacy and awareness about it.
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Juan Manuel Ospina is a Legal Researcher at CGFoE.
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United States
Lindke v. Freed
Decision Date: March 14, 2024
The United States Supreme Court held that public officials may prevent people from commenting on their social media pages when they act in their private or personal capacity. The case involved, on the one hand, James Freed —who was appointed city manager of Port Huron, Michigan, and frequently posted both personal and official information on his Facebook profile—, and Kevin Lindke, another Facebook user who commented on one of Freed’s posts expressing his disagreement with the city’s approach to the COVID-19 pandemic. Freed deleted Lindke’s comments and blocked him. Lindke claimed that Freed’s Facebook was a public forum because he was a public officer. He argued that Freed engaged in viewpoint discrimination by deleting unfavorable comments and blocking the people who wrote them, thus violating his freedom of expression under the First Amendment. Freed responded that by posting on Facebook, he was acting in his personal and private capacity, not as a public officer. The Supreme Court held that a public official engages in state action only if they possessed the actual authority to speak on the State’s behalf on a particular matter and purported to exercise that authority when speaking in the relevant social media posts. Further, the Court concluded that if these two conditions are not met, then the actions are not attributable to the State, and, thus, there can be no violation of the First Amendment, which necessarily requires governmental action. The Supreme Court did not solve the specific case but vacated the judgment and remanded it for further proceedings at the lower level.
Oversight Board
Oversight Board Case of Libya Floods
Decision Date: February 27, 2024
On February 27, 2024, the Oversight Board overturned, through a summary decision, Meta's original decision to remove a video from Facebook expressing support to the victims of floods in Libya caused by Storm Daniel and the collapse of two dams, which had been wrongfully flagged under the Dangerous Organizations and Individuals (DOI) policy. The user posted a video featuring several images of army personnel during rescue operations following Storm Daniel in September 2023. Meta deleted the post arguing that it breached its DOI policy. The user appealed the decision stressing that their post emphasized the unity of Libyan people during crises despite all conflicts. After being notified of the appeal by the Board, the company reversed its original decision and restored the post. The Board noted that this case underlined the over-enforcement of the Dangerous Organizations and Individuals policy which hindered users' ability to express solidarity.
Oversight Board Case of Syria Protest
Decision Date: February 27, 2024
The Oversight Board issued a summary decision overturning Meta’s original decision to remove an Instagram post that encouraged Syrians to rebel against the regime of Bashar Al-Assad. An Instagram user posted a video of a prominent figure in the Syrian resistance against Syrian president Bashar Al-Assad. Meta originally removed the post under its Dangerous Organizations and Individuals policy. The user appealed the decision claiming the post was meant to gather support for the Syrian resistance and not to glorify any designated organization or individual. When the Board brought Meta's attention to the case, the company reversed its original decision. The Board noted that this case highlighted enforcement errors of the Dangerous Organizations and Individuals policy since Meta removed content that didn’t refer to any designated organization or individual.
Brazil
Artur Pimenta de Oliveira Filho v. Flow Podcast
Decision Date: May 23, 2023
A Brazilian court dismissed a lawsuit seeking compensation for moral damages against a podcast and its former host. During an episode, the host mentioned the possibility of creating a Nazi party in Brazil and the right to be "anti-Jewish”. A number of Jewish individuals filed a lawsuit alleging that the comments offended all people, but especially the Jewish community. They sought compensation for moral damages or a public retraction, and that the podcast broadcast educational and historically accurate information about Nazism and the Holocaust. The lower court found that although the discourse conveyed in the podcast was clearly illegal, the complainants did not demonstrate how the comments directly affected them, which is a requirement to establish the duty to compensate, and that the actions taken by the podcast after the incident were appropriate given the seriousness of the situation. The appellate court confirmed this decision, noting that while the statements were deemed discriminatory and unlawful, the complainants had failed to demonstrate direct and individual harm to justify compensation. The Court also noted that there were ongoing investigations by the Public Prosecutor's Office regarding potential collective moral harm against the Jewish community.
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COMMUNITY HIGHLIGHTS & RECENT NEWS
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● “From the River to the Sea” on Meta’s Platforms – FFS, EFF, and CDT Advise the OSB. As Meta’s Oversight Board (OSB) reviews the moderation of posts that include the slogan “From the River to the Sea” on its platforms, the Future of Free Speech (FFS), Electronic Frontier Foundation (EFF), and Center for Democracy & Technology (CDT) submit public comments on the matter. All three emphasize the long political history of the phrase and the importance of context-specific analysis. The FFS referred to the relevant case law and the Rabat Plan of Action, concluding that “an assessment of the phrase as such, and without any other contextual element does not meet [its] threshold regarding hate speech.” The EFF listed state attempts to ban the phrase and court rulings that recognized it as protected expression. In one of its key points, CDT argues the cases under review show that “Meta should work to improve oversight of automated processes, moderator guidance, transparency, and commit to periodic evaluations of relevant policies to strike the right balance between user safety and free expression.”
● Pakistan: Punjab Assembly Passes Controversial Defamation Bill Amid Protests. Pakistan Press Foundation (PPF) reports the Punjab Assembly passed a defamation bill designed to establish “special tribunals” for ”fake news” cases. The bill has been severely criticized by rights groups and journalists, who organized a walkout in protest. The law sets out to impose fines and block social media accounts of those publishing defamatory material. Citing the Human Rights Commission of Pakistan, the PPF notes the bill “proposes a parallel judicial structure for defamation claims, which [...] violates fundamental rights and due process. The bill also empowers the government to appoint judges to these tribunals with higher allowances and benefits than the existing judiciary, raising questions about impartiality.”
● Brazil: Top Court Acts to Protect Journalists from Judicial Harassment. The Committee to Protect Journalists (CPJ) welcomes a recent ruling issued by Brazil’s Supreme Court that helps safeguard press freedom by protecting journalists from legal retaliation. In a unanimous decision, the Court acknowledged judicial harassment of journalists, defining it, CPJ reports, as “numerous lawsuits on the same issue [...] filed in different parts of the country, with the intention of embarrassing the defendant or making their defense difficult.” The Court allowed requests for all the lawsuits in such cases to be combined into one and moved to the defendant’s place of residence for judgment. Additionally, the Court stressed that only “‘unequivocal’ evidence of malicious intent or serious professional negligence in investigating the facts” can establish liability of media professionals in civil cases.
● ECtHR: Important Decision Against Mass Surveillance. Another crucial ruling comes from the ECtHR and concerns Pietrzak and Bychawska-Siniarska and Others v. Poland, a case in which Polish activists challenged the lack of legal protection against secret surveillance by government agencies. The Court found violations of Article 8 in Polish legislation, including the operational-control regime, communications data retention, and “secret surveillance provisions in the Anti-Terrorism Act.” Earlier, ARTICLE 19 had joined Privacy International and the Electronic Frontier Foundation in submitting a third-party intervention in the case. The submission argued that apart from undermining the right to privacy, covert surveillance practices “also have a chilling effect on the freedom of expression of journalists, NGOs, activists and lawyers, among others.”
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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
Model Regulatory Framework on AI & Machine Learning in Southern Africa. How should states approach the regulation of AI to ensure the new technologies strengthen democracy rather than undermine it? Addressing this question, the Media Institute of Southern Africa (MISA) drafted an AI policy framework tailored for the states in the region. The document centers on the right to freedom of expression, drawing from Article 9 of the ACHPR, Article 19 of the UDHR, Article 19 of the ICCPR, and the right to privacy as it is enshrined in Article 12 of the UDHR and Article 17 of the ICCPR. MISA structures the framework in five parts, concluding with “Operationalisation of Human Rights and Ethics,” which breaks down several steps for states and companies to undertake for the protection of users’ rights.
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● The Fragile Triangle of Artistic Freedom: A Study of the Documentation and Monitoring of Artistic Freedom in the Global Landscape, by Ole Reitov and Sara Whyatt. This new study on artistic freedom, published by ifa – Institut für Auslandsbeziehungen, sets out to address policymakers, civil society organizations, donors, and many others with an urgent matter: even though the international awareness of the necessity to protect artistic freedom grows, many states and various groups violate the rights of artists, and the true scale of censorship and suppression of artistic expression is unknown. Having interviewed key actors within the artistic freedom landscape and analyzed reports on the subject, the authors show “how donors, international organisations and civil society organisations [...] understand the current challenges they face” and identify “gaps in the promotion and protection of artistic freedom, including what is needed to address them.”
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