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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,
We know you are always on the lookout for resources on freedom of expression, and this week, we are introducing Factsheets – our just-published tools designed to complement Special Collection Papers. Factsheets review key free speech standards on topical issues identified in significant rulings of national and international tribunals. The first five Factsheets cover the African System of Human and People’s Rights, SLAPPs, internet shutdowns, humor and satire, and content moderation.
The African System Factsheet was prepared by CGFoE’s Legal and Program Consultant Anderson J. Dirocie De León, who continues our Faces Behind CGFoE interview series. In a recent conversation with Communications Specialist Marija Šajkaš, Anderson talked of his legal expertise, activism, human rights advocacy, and CGFoE’s special projects.
What are some of the highlights of your expertise? I am an international lawyer and human rights advocate from the Dominican Republic with Master of Laws (LLM) degrees from Harvard and Leiden University and experience in public international law, international criminal law, and human rights. I’ve worked with the International Criminal Court and the Inter-American Commission on Human Rights, among other international courts, and very recently, I co-authored our first amicus curiae brief in a case concerning the protection of journalistic sources.
Why did you join CGFoE? I firmly believe that freedom of expression (‘FoE’) is fundamental to protecting all human rights and strengthening democratic societies. This belief was shaped by my commitment to LGBTI issues and the premise that expressing one’s sexual orientation and gender identity is a specially protected speech, as it is an expression of essential elements of personal identity and dignity. FoE is a vital tool for activists, academics, and human rights defenders like me. It allows us to advocate for change, raise awareness, and hold authorities accountable.
You’ve been involved with CGFoE Special Collection Papers and other special projects, can you tell us more? I work on projects that bridge technical legal analysis with practical advocacy. Our Special Collection Papers do exactly that. They systemize standards identified through our case-law database, providing lawyers, activists, scholars, and policymakers with insights to address trending challenges, critical issues, and traditional obstacles to FoE. Popular topics that are covered include privacy, SLAPPs, and violence against journalists, and some of the papers have already been translated into Spanish and French. Other projects I’ve worked on include leading the Webinar Series on FoE in Latin America and the French Webinar Series marking the launch of our French database. In essence, I leverage my legal and strategic expertise to support CGFoE’s mission.
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Anderson Javiel Dirocie De León is a Legal and Program Consultant at CGFoE.
Photo credit: Juan Manuel Ospina Sánchez/CGFoE
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Colombia
Case on custodial sentences for the crime of defamation
Decision Date: November 15, 2023
The Constitutional Court of Colombia held that custodial sentences for the crime of defamation (“calumnia” and “injuria”) were compatible with the Constitution, Article 13 of the American Convention on Human Rights, and Article 19 of the International Covenant on Civil and Political Rights. The petitioners claimed that articles 220 and 221 of the Colombian Criminal Code, which order custodial sentences from 16 up to 72 months for these crimes, affected freedom of expression because they have a chilling effect that leads to self-censorship. Furthermore, the petitioners argued that international human rights standards consider that custodial sentences for these crimes should be abolished, and warned that these penalties facilitate Strategic Lawsuits Against Public Participation (SLAPPs). The Court held that the custodial sentences were issued by Congress within its mandate and did not necessarily have an intimidatory effect because it was improbable that the punishment for defamation actually entailed going to jail. The judges explained there were several alternatives to avoid prison, such as mandatory mediation, retraction/recantation, the truth defense, or home detention. For the Court, the law simply imposed a duty of caution when exercising freedom of expression that was not excessive considering the impact it could have on the dignity, honor, and reputation of individuals. The Court also highlighted that false accusations could constitute crimes and that was an adequate tool to prevent SLAPPs. Finally, the judges held that there was no mandate from international treaties to prohibit custodial sentences for the crime of defamation, and that international soft law does not have constitutional hierarchy.
Oversight Board
Case of Cambodian Prime Minister
Decision Date: June 1, 2023
The Oversight Board overturned Meta's decision to leave up a video on Facebook in which the Cambodian Prime Minister, Hun Sen, made violent threats against his political opponents. The video, uploaded to Sen’s official Facebook page, was reported several times, but after review was deemed, by the company, as non-violating of Meta’s policies due to its newsworthiness. The Board held that Meta's decision to grant the content the newsworthiness allowance was incorrect and that the video clearly violated Meta’s Violence and Incitement policy, requesting Meta to immediately suspend Hun Sen's Facebook Page and Instagram account for at least six months. The Board also recommended Meta to update its system to prioritize content from state heads for immediate human review and exclude content that directly incites violence from its newsworthiness allowance policy.
Poland
The case of a controversial statement about a politician posted on a web portal and a blog
Decision Date: April 26, 2023
The Polish Supreme Court confirmed a lower court’s ruling that although criticism of public figures can be harsher than that of others, such criticism must also be within certain limits. A politician had posted critical statements about another politician on his blog which had led to a claim that the statements infringed the politician’s honor. The Court said that assessing whether the limit has been crossed in a particular case is very much tied to the specific context, so the use of previous case law is of limited applicability and that there is no such thing as a catalog of words and phrases that can be applied mechanically in assessing the limits of acceptable criticism. The Court acknowledged that assessing whether there has been an illegal violation of personal interests in a given case leaves room for broad discretionary power, which limits the scope of an appellate court overturning a lower court decision unless there were obvious errors in an earlier decision.
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COMMUNITY HIGHLIGHTS & RECENT NEWS
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● Slovakia: Cease Attacks on Journalists and Satirists Amid Growing Tensions. CGFoE joined ARTICLE 19, the Future of Free Speech, Forum for Humor and the Law, and other rights initiatives in signing a statement that calls on the Slovak government to stop its crackdown on independent media, civil society, and satirists. The statement expresses grave concern that, in the aftermath of the assassination attempt on Prime Minister Robert Fico, several top politicians are blaming liberal media for the attack, targeting media and other groups critical of the government with baseless accusations of hate speech, and encouraging law enforcement to act against satirical site Zomri. The statement condemns such misuse of power and stresses, “Freedom of expression, including the freedom to joke, is the bedrock of a democratic society.”
● New FFS Report: Preventing “Torrents of Hate” or Stifling Free Expression Online? The Future of Free Speech (FFS) project at Vanderbilt University released a new report that assesses content removal on social media in France, Germany, and Sweden. The study asks: do social media platforms overbrim with hate speech and other illegal content as policymakers behind Germany’s Network Enforcement Act or EU’s Digital Services Act assume they do? Focusing on Facebook and YouTube, the authors analyzed comments on 60 pages and channels with the largest following in France, Germany, and Sweden, tracked the comments that disappeared within two weeks, and determined whether the speech in those comments was legal. The key findings contrast with the assumptions of policymakers as content moderation tends to go overboard: “[o]f the deleted comments examined [...], between 87.5% and 99.7%, depending on the sample, were legally permissible.” Read the full report here.
● The Philippines: NUJP Launches Study on Red-Tagging Against Journalists. With the support of UNESCO, the National Union of Journalists of the Philippines (NUJP) launched a study titled “No Tag: Press Freedom for Pluralism.” It digs into incidents of so-called red-tagging against journalists – a practice that labels reporters as communists in order to silence, intimidate, or subject them to violent attacks. Despite a long history of red-tagging aimed at dissenters in the Philippines, there is no law against it; the first time the Supreme Court defined red-tagging in a decision was in its July 3, 2023, ruling, made public very recently, on May 8, 2024; the Court described the practice as a “threat to a person’s right to life, liberty, or security.” NUJP’s research – a survey and focus groups with journalists – found that out of all considered red-tagging incidents of the last eight years, the share of state-sponsored ones is as high as 60%. Download the full report here.
● Uganda: Foreign Influence on Civic Space in Uganda – Implications for Digital Rights. This policy brief, published by the Collaboration on International ICT Policy for East and Southern Africa (CIPESA), argues that digital authoritarianism is on the rise in Uganda, and China might be the force behind it. Digital rights in Uganda are being curbed by repressive laws enabling excessive surveillance, online censorship, internet access disruptions, as well as state-sponsored disinformation campaigns. While there is no conclusive evidence to indicate China has had direct involvement in shaping Uganda’s legislation and practices repressing digital rights, the argument that China may have inspired some of those stands – the brief unpacks this influence.
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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
Outcome Report: Addressing the Impact of Artificial Intelligence on Media Pluralism and Public Interest Information. As part of the International Press Institute’s World Congress this year, the Office of the OSCE Representative on Freedom of the Media (RFoM) hosted a panel discussion on AI and its impact on media pluralism and public interest information. The list of speakers included Julia Angwin, investigative journalist, David Kaye, former UN Special Rapporteur on freedom of expression and opinion, and Damian Tambini, Distinguished Policy Fellow in the Department of Media and Communications at LSE. This outcome report recaps the discussion in the form of colorful post-its and a concise summary of key opportunities and challenges that Generative AI presents. The report concludes with recommendations for the OSCE RFoM, states, and other stakeholders, calling for more “research, analysis and multi-stakeholder engagement” that the rapid technological development demands.
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● Anonymity, Identity, and Lies, by Artur Pericles L. Monteiro. Part of the Knight Institute’s Lies, Free Speech, and the Law Symposium, this paper interrogates the roles of anonymity and identification in combating the consequences of illegal speech and its suppression. Artur Pericles L. Monteiro, Lecturer at Yale Jackson School of Global Affairs, challenges proponents of identification and disclosure as remedies for mis- and disinformation. Surveying scholarship in various disciplines, the paper turns to “the plurality of identification and the plurality of anonymity.” Monteiro considers disinformation in the context of political polarization and its “identity-based components,” arguing that “anonymity can serve as a device to create opportunities for conversation and avoid some of the mechanisms triggering those components.”
In case you missed it…
● Gazeta do Povo Event in Brasília: Jurists Analyze Decisions on Freedom of Expression. Brazilian newspaper Gazeta do Povo hosted a high-level debate on freedom of expression and relevant recent decisions of higher courts in Brazil on the matter. Renowned jurists, from Brazil and other countries, joined the discussion on September 27 and 28, 2023, in Brasília. All the conference’s recordings are available on YouTube or here.
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